THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.459 OF 2021
JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)
Heard Mr. A. Sanjeev Kumar, learned Special
Government Pleader appearing for the appellants
and Mr. P. Gangaiah Naidu, learned Senior Counsel
appearing for the respondent.
2. This writ appeal, under Clause 15 of Letters Patent, is preferred aggrieved by the orders dated 08.06.2021 passed by the learned Single Judge in W.P.No.22853 of 2019.
3. Appellant Nos.1 and 2 herein are the State, appellant Nos.3 to 5 herein are its officials and the sole respondent herein is the writ petitioner. For the sake of convenience, the parties are referred to as arrayed in the writ petition.
4. Brief facts necessary for the disposal of the present writ appeal are stated as under:-
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The petitioner school was established in the year 1895 as a primary school for imparting education in Telugu Medium and was subsequently upgraded as secondary school. In the year 1930, the petitioner school was admitted to grant-in-aid in respect of 15 Secondary Grade Teacher posts in primary school and 19 posts of both teaching and non-teaching staff in high school, as per the staff pattern prescribed by the State. Ten (10) aided posts fell vacant due to retirement of individual teachers on attaining the age of superannuation or promotion or death of staff. The petitioner school made representations to respondent No.4 to grant permission to fill up the said vacant aided posts. While so, the Government had taken a policy decision for filling up of aided posts and for admission of new unaided schools to grant-in-aid and issued Guidelines vide G.O.Ms.No.75 dated 23.09.2022. In compliance with the said G.O, respondent No.3, vide proceedings in Rc.NO.1000/B1-3/2002 dated 30.05.2003, accorded permission to fill up vacancies in aided schools throughout the State. In terms thereof, permission was accorded to the petitioner school by 3 respondent No.4 vide proceedings in Rc.No.7377/E1/2004 dated 10.07.2004 and 20.07.2004 for filling up of the aided vacant posts in accordance with G.O.Ms.No.1 dated 01.01.1994.
4.1. Accordingly, the petitioner issued notification calling for applications from the suitable candidates apart from the candidates sponsored by the employment exchange. Respondent No.4 also constituted a staff selection committee vide proceedings in Rc.No.7377/E1/2004 dated 25.07.2004 in terms of the Government Order referred to supra. However, selection process could not be completed on the ground that the Government imposed ban on recruitment in private aided management schools vide proceedings in Memo No.12080/COSE/A2/2004 dated 20.10.2004 and Memo No.8544/COSE/2005-3 dated 14.11.2005. 4.2. Thereafter, the Government issued G.O.Ms.No.103 dated 05.08.2005 for rationalisation of the posts to be filled up in the respective institutions. Respondent No.2 issued proceedings in Rc.No.140/B2-1/2005 dated 03.11.2005 in terms of the aforesaid G.O. and 4 respondent No.4 vide proceedings in Rc.No.19894/D3/2005 dated 21.11.2005 transferred nine surplus teaching staff of other schools to the petitioner school. However, none of them joined in the petitioner school. Since the aided vacancies were not filled up and the transferred surplus staff also not joined, the petitioner school filed W.P.No.19690 of 2005 questioning the action of the respondents in not allowing it to fill up the aided posts as per the permission accorded earlier. This Court, vide orders dated 06.07.2012, directed the petitioner school to make a representation to respondent No.4, who in turn was directed to consider the same.
4.3. While the matter stood thus, several private aided management schools filed W.P.No.13869 of 2005 and batch questioning the ban memo dated 20.10.2004. This Court disposed of the batch of writ petitions by permitting the private aided management schools to fill up the vacancies where the selection process was already initiated prior to imposition of the ban, notwithstanding general ban imposed by the Government vide Memo 5 dated 20.10.2004. Questioning the said order, the State preferred W.A.No.1578 of 2005 and batch. The Division Bench, vide judgment dated 29.12.2006, duly taking note of the ban orders imposed by the Government in Memo dated 20.10.2004 and rationalisation guidelines issued in G.O.Ms.No.103 dated 05.08.2005, held the said memo as illegal.
4.4. Meanwhile, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (briefly "the RTE Act 2009", hereinafter) and the provisions of the said Act came into force with effect from 01.04.2010. In compliance with the provisions of the RTE Act 2009, the State Government issued G.O.Ms.No.40 dated 18.06.2013 framing guidelines with regard to the teacher-pupil ratio and staff pattern for the primary and secondary schools. In terms of the above Government Order, respondent No.3 issued proceedings dated 13.08.2013 directing implementation of rationalisation of services of aided staff in private aided schools and fixed schedule from 16.08.2013 to 31.08.2013. The Government also relaxed conditions laid down in the ban memo dated 20.10.2004. 6 4.5. While the matter stood thus, the batch of writ petitions i.e., W.P.No.9503 of 2005 and batch filed questioning the ban orders issued by the Government was disposed of by this Court on 30.07.2013 and declared the ban orders issued by the Government as violative of Articles 14, 21-A and 45 of the Constitution of India and also violative of the Rules framed in G.O.Ms.No.1 dated 01.01.1994. Against the said orders, the erstwhile State of Andhra Pradesh filed W.A.No.216 of 2014 and this Court granted interim order allowing the respondent institution therein to fill up the grant-in-aid vacancies in accordance with rules, subject to result of the writ appeal. Questioning the said orders, the State Government preferred S.L.P (Civil).No.8547 of 2014 before the Supreme Court and the same was dismissed on 14.09.2015. Meanwhile, the combined State of Andhra Pradesh was bifurcated into the State of Andhra Pradesh and the State of Telangana under the provisions of the Andhra Pradesh Reorganisation Act, 2014 with effect from 02.06.2014. After bifurcation, the Government of Andhra Pradesh constituted a committee 7 vide Memo NO.18836/SE-Genl/A21/2010 dated 24.06.2015 with regard to court cases filed against the ban memo dated 20.10.2004. The committee in turn submitted a report recommending for withdrawal of ban memo and accordingly the State of Andhra Pradesh issued G.O.Ms.No.40 dated 30.06.2017 withdrawing the ban memo dated 20.10.2004. So far as the State of Telangana is concerned, the ban memo issued before bifurcation was not adopted after formation of the State of Telangana and the committee constituted vide memo dated 25.06.2015 submitted an interim report to the Government in the month of December, 2015. 4.6. The petitioner's case is that since it fulfilled the eligibility criteria by maintaining the teacher-pupil ratio for Classes I to V, as per the staff pattern prescribed in terms of G.O.Ms.No.40 dated 18.06.2013, it is eligible for 13 teaching staff and 6 non-teaching staff for admission into grant-in-aid and thus made a representation to respondent Nos.1 to 4 to allow the management to fill up the said posts duly following the recruitment procedure, by constituting a selection committee in terms of 8 G.O.Ms.No.1 dated 01.01.1994. The respondents instead of examining the case of the petitioner, relying on the ban orders imposed before bifurcation of the State, has refused to permit the petitioner school to fill up the vacancies, and this constrained the petitioner school to file W.P.No.36632 of 2016. This Court, vide interim orders dated 27.10.2016 in W.P.M.P.No.45107 of 2016 in W.P.No.36632 of 2016, granted temporary permission for appointment of teaching and non-teaching staff subject to meeting the salaries of those posts by the management, which would be subject to the result of W.A.No.223 of 2014 filed by the combined State of Andhra Pradesh. When the respondents did not allow the petitioner school to fill up the vacancies, it was constrained to file C.C.No.680 of 2017. After filing of the contempt case, respondent No.1 issued Government Memo No.9097/SE-Genl/A2/2016 dated 29.05.2017 directing respondent No.3 to allow the petitioner school to appoint teaching and non-teaching staff as per the rationalised staff pattern in terms of G.O.Ms.No.40 dated 18.06.2013. In compliance with the same, respondent No.4 granted permission to fill up the aided vacant posts 9 on 10.11.2017 and 16.08.2018 in accordance with the rules issued in G.O.Ms.No.1 dated 01.01.1994. Thereafter, the petitioner school duly following the recruitment procedure has appointed the selected candidates, both teaching and non-teaching, in aided vacancies and respondent No.4 vide proceedings in Rc.No.1247/A1/2017 dated 27.07.2019 approved the same and the selected candidates joined duty on 12.06.2019. Even though the selected candidates were working, they were not being paid salaries applicable to grant-in-aid posts, even after withdrawal of the ban memo dated 20.10.2004 and the said action was assailed in the subject writ petition.
5. The State filed a counter affidavit and admitted institution of various cases questioning the ban memo in proceedings No.12080/COSE/ A2/2004 dated 20.10.2004 issued by the Government and the orders passed in W.P.No.9503 of 2005 and batch declaring the said ban memo as illegal and violative of Articles 14 and 21-A of the Constitution of India. It is the case of the Government that the petitioner school was allowed to fill 10 up the vacancies of teaching and non-teaching staff in aided posts as per the terms of G.O.Ms.No.40 dated 18.06.2013, subject to meeting the salaries of those posts by the management and the appointments would be subject to the result of W.A.No.223 of 2014. It was contended that since the above writ appeal filed by the united State of Andhra Pradesh was dismissed as infructuous, as the ban memo issued before bifurcation was subsequently withdrawn by the State of Andhra Pradesh, these orders are not applicable to the State of Telangana, as such prayed for dismissal of the writ petition.
6. The learned Single Judge, after considering the rival submissions made by the parties and the materials on record, allowed the writ petition by order dated 08.06.2021 directing the respondents to pay salaries to the aided staff of the petitioner school within a period of two months for the selections which were conducted in pursuance of the interlocutory order dated 27.10.2016 passed in W.P.No.36632 of 2016. Hence, this writ appeal.
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7. We have carefully considered the submissions made by the learned counsel for the parties and perused the record.
8. The petitioner educational institution was admitted to grant-in-aid in the year 1930 in respect of 15 Secondary Grade Teacher posts in primary school and 19 posts of both teaching and non-teaching staff in high school. The petitioner school made representations to the respondents to grant permission to fill up the vacant aided posts which arose due to retirement or death or promotion of staff. During the pendency of the representations of the petitioner school, the Government issued G.O.Ms.No.75 dated 23.09.2022 framing guidelines for filling up of aided posts and respondent No.3 issued Rc.No.1000/B1-3/2022 dated 30.05.2003 according permission to all the private schools in the State to fill up aided vacancies in terms of the rules framed in G.O.Ms.No.1, dated 01.01.1994. Pursuant thereto, the petitioner school issued notification calling for applications from the suitable candidates and respondent No.4 being the competent authority constituted a staff selection committee vide proceedings 12 in Rc.No.7377/E1/2004 dated 25.07.2004. While so, pending finalisation of the selection process, the Government issued executive instructions in Memo No.12080/COSE/A2/2004 dated 20.10.2004 and Memo No.8544/COSE/2005-3 dated 14.11.2005 imposing ban on recruitment of aided posts in private management schools. The ban memos issued by the Government were assailed in WP No.13869 of 2005 and batch. This Court allowed the said batch of writ petitions granting permission to the private aided management schools to fill up the vacancies where the selection process was already initiated prior to imposition of ban vide Memo No.12080/COSE/A2/2004 dated 20.10.2004.
9. Questioning the orders passed in W.P.No.13869 of 2005 and batch, the State filed W.A.No.1578 of 2005 and batch. A Division Bench of this Court declared the ban memos dated 20.10.2004 and 14.11.2005 as illegal and contrary to the guidelines issued for rationalisation of posts in G.O.Ms.No.103 dated 05.08.2005. Meanwhile, the Parliament enacted the RTE Act 2009 and the State Government, to fulfil the objects enunciated in the RTE 13 Act 2009, has issued G.O.Ms.No.40 dated 18.06.2013 framing guidelines to fill up staffing pattern for primary and secondary schools on teacher-pupil ratio.
10. While the matter stood thus, the batch of cases i.e., W.P.No.9503 of 2005 and batch filed challenging the ban memo dated 20.10.2004 issued by the State Government was allowed declaring the same as illegal, vide orders dated 30.07.2013. Aggrieved by the same, W.A.Nos.216, 222 and 223 of 2014 have been filed and a Division Bench of this Court granted interim orders on 25.02.2014 permitting the educational institutions to fill up the vacancies subject to bearing the expenditure towards salaries of the selectees. Questioning the same, the State filed S.L.P (Civil) No.8547 of 2014 and the same was dismissed by the Apex Court on 14.09.2015. In Government of Andhra Pradesh vs. Sri Sevadas Vidyamandir High School1, the Apex Court while dealing with the very same ban memo dated 20.10.2014 held as follows:
"18. Having considered the submissions made on behalf of the respective parties, we are of the view 1 (2011) 9 SCC 613 14 that no interference is called for with the judgment and order of the Division Bench of the High Court.
There is no dispute that the Memo dated 20-10-2004, imposing a ban on recruitment to grant-in-aid posts was issued after the schools in question had been given permission by the State authorities to fill up the vacant posts in the schools being managed and run by the writ petitioners, who are the respondents in these special leave petitions.
There is also no dispute that the said memo was not given retrospective effect so as to negate the approval already given for filling up the grant-in-aid posts. The State Government and its authorities could not, therefore, contend that the rationalisation process which had been introduced, would also apply in respect of the private aided schools, where the process of recruitment had already been commenced pursuant to the approval granted earlier.
19. Furthermore, as was submitted by Ms Pavani, even the approval which was granted for filling up the vacant aided posts, had been granted after due scrutiny as to the requirements of the schools in question. Since it is well settled that administrative orders are prospective in nature, unless they are expressly or by necessary implication made to have retrospective effect, there is no need to refer to the decisions cited by Ms Pavani, appearing on behalf of the respondent Schools.
20. As indicated hereinbefore, we, therefore, see no reason to interfere with the judgment and order of the Division Bench of the Andhra Pradesh High 15 Court impugned in these special leave petitions and the same are accordingly dismissed."
11. The petitioner school filed W.P.No.36632 of 2016 praying this Hon'ble Court to direct the respondents to grant permission to fill up the vacancies of aided posts. This Court, vide orders dated 27.10.2016 in W.P.M.P.No.45107 of 2016 in W.P.No.36632 of 2016, granted temporary permission for appointment of teaching and non-teaching staff subject to meeting the salaries of those posts by the management which would be subject to the result of W.A.No.223 of 2014. The respondents allowed the petitioner school to fill up the aided vacancies, but salaries were not released to employees. The grievance of the petitioner school in the related writ petition was to direct the respondents to release salaries to those selected candidates/appointees.
12. The record reveals that the ban memo issued by the united State of Andhra Pradesh was withdrawn by the State of Andhra Pradesh after bifurcation of the State and issued G.O.Ms.No.40 of 30.06.2017. In terms of Section 3 of Andhra Pradesh Reorganisation Act, 2014, the State of Telangana was formed with effect from 02.06.2014 and 16 all the laws which were applicable to the undivided State of Andhra Pradesh as on 01.06.2014 would continue to apply to the new State of Telangana and the State of Andhra Pradesh with effect from 02.06.2014 for a period of two years. Since the ban memo issued earlier by the united State of Andhra Pradesh was not adopted by the State of Telangana under the provisions of the Andhra Pradesh Reorganisation Act, 2014 nor any fresh ban orders were issued by the State of Telangana, the ban contained in the said memo is not applicable to the institutions which are situated within the territory of the State of Telangana.
13. Further, subsequent to withdrawal of the ban memo, Writ Appeal Nos.216, 222 and 223 of 2014 filed challenging the orders passed in W.P.No.9503 of 2005 and batch, wherein the learned Single Judge has allowed the writ petitions declaring the ban memo as illegal, were also dismissed as infructuous. Resultantly, there are no orders prohibiting filling up of aided vacancies by the private managements following the guidelines issued in G.O.Ms.No.1 dated 01.01.1994.
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14. Respondent No.4, vide proceedings in Rc.No.7377/E1/2004 dated 10.07.2004 and 20.07.2004, permitted the petitioner school to fill up the vacancies in grant-in-aid posts prior to imposition of ban orders dated 20.10.2004 and the petitioner school has followed the rationalisation orders issued in G.O.Ms.No.103 dated 05.08.2005. The respondent state is under an obligation to release the salaries and emoluments to the appointees in aided vacancies, in order to make the existing educational set up effective and efficient, and denial of payment of salaries is bound to have serious repercussions on the petitioner institution and the children studying there. The state administration cannot shirk its responsibility of ensuring proper and quality education in schools on the plea of lack of resources.
15. For the aforesaid reasons, we are of the view that the learned Single Judge, after exhaustively referring to various rules to fill up the aided vacancies issued in G.O.Ms.No.1 dated 01.01.1994 and G.O.Ms.No.103 dated 05.08.2005 and also the judgment of the Apex Court in Sri Sevadas Vidyamandir High School's case (supra), 18 has rightly come to the conclusion that the respondents are liable to pay salaries to the aided staff appointed by the petitioner school. Therefore, we see no reason to interfere with the impugned order passed by the learned Single Judge in exercise of letters patent jurisdiction.
16. Resultantly, the writ appeal is dismissed.
Miscellaneous applications, pending if any, shall stand closed. There shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 24.11.2022 JSU