Andhra Pradesh High Court - Amravati

Jvn Aaa Upper Primary School vs The State Of Ap on 12 January, 2024

     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                     WRIT PETITION No.7164 OF 2023
ORDER:

The present Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

"... to issue a writ or order or direction more particularly one in the nature of Writ of Mandamus declare the G.O.Ms.No.51, School Education (PS-Department), dated 01.06.2022 issued by the 1st Respondent accorded permission to 3rd Respondent to takeover the petitioner institution along with Aided Teaching and non-teaching staff with attests, without any liabilities and infrastructure by the Government as a Government Educational Institution in terms of G.O.Ms.No.50, (SE(PS)-Department), dated 17.08.20221 and thereby issued consequential memo No.ESEO2- 18021/88/2022-P.S.,C.SE, dated 05.02.2023, as illegal, arbitrary, highhanded an in violation of Articles 14, 21 and 300-A of the Constitution of India and consequently set-aside the G.O.Ms.No.51, School Education (PS-Department) dated 01.06.2022 passed by the 1st Respondent and pass such other order or orders..."

2. The case of the petitioner is as follows:

3. The Petitioner's institution was established way back in the year 1933

vide Rc.No.25-/33, dated 20.06.1933 by Sri Bandi Vandanam, S/o.Lazure,

who is father of the petitioner herein, in an extent of Ac.0.48 Cents donated

by the forefathers of the family. The Government of Andhra Pradesh granted,

grant in Aid to the Petitioner Institution. Since 90 years the subject

institution has been running peacefully and imparting Primary and Upper

Primary Education to the poor and rural children and around the school

area.

4. While things stood thus, Respondent Nos.1 and 2 herein issued

G.O.Ms.No.50 School Education (PS) Department, dated 17.08.2021, with

an object to takeover of Private Aided management Schools including

Minority Aided Schools by consent / by willingness to run the same as

Government Schools. On 16-09-2021, the Respondent No.4 conducted a

meeting by calling all the private managements of the Aided Schools

including the Petitioner's institution in pursuance of G.O.Ms. No 50. During

the meeting the Respondent No.4 has given printed forms and directed them

to choose options as indicated in the form that to give consent / willingness

to handover the management along with assets of the respective institution

to the Government. The printed form was filed by the petitioner herewith as

Material Paper in Ex.P3. Under Ex.P3 the petitioner given a tick mark to the

option No -1 i.e. willing to hand over the entire Staff along with Assets of the

institutions.

5. It is further case of the petitioner that on several representations and

agitations made by the private managements of institutions, the

Government issued a circular Memo No.1072635/CE/A1/2020 Higher

Education (CE) Department, dated 12.11.2021, providing more options by

giving another opportunity for those institutions who wanted to re-consider

the option given earlier or those who have not responded earlier to exercise

their option out of four options, that options have extracted as under:

Option 1: Willingness to voluntarily surrender the entire institution

along with assets and the existing staff which will make the

institutions as Government Education Institutions without any

liabilities and financial burden on the exchequer.

Option 2: Willingness to voluntarily surrender the aid in the form of

surrendering all the duly sanctioned aided posts along with aide

staff, but not the assets, which will make the institutions as private

unaided Educational Institutions.

Option 3: Unwillingness to option 1 and option 2 and thereby

continue to exist as a Private Aided Educational Institution as per

the existing rules, regulations, grant-in-aid code etc.

Option 4: Withdrawing the willingness given earlier to either option

1 or option 2 and thereby to take back the surrendered staff and run

the institution as a Private Aided Educational Institutions as per the

existing rules, regulations, grant-in-aid code etc.

6. Respondent No.3 filed counter affidavit wherein it is stated that vide

Memo No.ESE-02-18022/119/2020, dated 31.08.2021 instructions were

issued to all the Regional Joint Directors of School Education and the

District Educational Officers in the State to call for applications from the

willing managements of Private Aided Schools to handover the management

and infrastructure of the respective institutions voluntarily to the

Government without any liabilities as per Rule 4 (A) (or) call for applications

in writing from managements and aided staff of such Private Aided Schools

whose managements are willing to surrender their aid in the form of

surrendering their aided staff to the Government but not the assets and

infrastructure accordingly, the Government will absorb their aided staff into

the needy Government / Local body schools through a transparent web

counseling process duly framing the rules for their service and other

purposes. Consequently, the grant-in-aid will be withdrawn permanently for

such institutions as per provisions of the A.P. Education Act, 1982. The

District Educational Officer, Prakasam District has issued Proceedings to

the private Aided schools Correspondents and called for applications from

the private aided managements vide Rc.No:5107/C3/2020, Dated

06.09.2021. Accordingly, the Correspondent, JVN AAA UP School,

Rajupalem, Martur Mandal, Prakasam District has submitted their

willingness to surrender the grant-in-aid along with entire assets of the

subject institution to the Government. In pursuance to the willingness given

by the petitioner vide Lr.Rc.No.5707/C3/2021-3, dated 29.09.2021, same

has been forwarded to Commissioner of School Education, A.P, Amaravati

for taking further action in the matter.

7. It is further stated that the contention of the petitioner that under

wrong perception instead of option No.3 he has given option No.2 is baseless

averment, whereas the petitioner has given option No.1. As submitted

option No.1 as stated supra the entire process was completed purely on a

voluntary basis, even otherwise if the petitioner was under wrong perception

chosen wrong option he would have been approached the authorities

immediately, which was not done in the present case. And now after the

completion of the entire process, staff was absorbed into the Government

and final G.O. was also issued, but now the petitioner knocked the doors of

this Hon'ble High Court alleging that his Fundamental Rights are infringed

is a baseless averment and the WP is liable to be dismissed on this ground

alone.

8. It is further stated that as per the procedure, the respondents issued

G.O.Ms.No.51, School Education (PS) Department, dated 01.06.2022

notifying that JVN AAA UP School, Rajupalem, Martur Mandal, Prakasam

District with UDISE Code:28182000204 along with aided teaching and non-

teaching staff along with all assets without any liabilities and infrastructure

was taken over by the Government and converted the subject institution as

a Government Educational institution through an irrevocable and

unconditional registered deed of conveyance, subject to the terms and

conditions stipulated in the G.O.Ms.No.50, SE (PS) Department, dated

17.08.2021 and other contentions made therein are hereby denied.

9. It is further stated that as per the report submitted by the District

Educational Officer, Bapatla vide Lr.Rc.No.2470/B1/2022 dated

09.01.2023, even for the second time the petitioner has chosen the option

No.1 only on 01.07.2022 and submitted a letter to the concerned competent

authority to handover all the assets along with staff of the institution to the

Government. Accordingly Government issued GO.Ms.No.51, dated

01.06.2022 duly taking over the staff and assets of the petitioner's School.

Further, after receiving the representation from the petitioner's management

vide Letter dated 13.12.2022, one Sri J. Venkata Narayana and J. Gopala

Krishna, Rajupalem, Martur Mandal, Bapatla District submitted a

representation through proper channel that the land in which petitioner

school is situated belongs to their forefathers and accordingly, school was

named as Jasti Venkata Narayana UP School (JVN) and the Manager &

Correspondent of JVN AAA UP School, Rajupalem do not have any locus

standi to fight on the assets of the subject school and further requested to

continue the school in the same name and style ie. JVN AAA UP School,

Rajupalem. It is pertinent to submit here that petitioner has not submitted

any kind of documents to prove his legal right over the land and in the

absence of the same, petitioner has no locus standi to change the name of

the school or to claim any kind of compensation, for which the Government

did not promise or under obligation to fulfill the same. The other contentions

made therein are hereby denied.

10. Learned counsel for the petitioner submits that pursuant to the

circular dated 12.11.2021 issued by Respondent No.1, again the respective

Correspondents of the institutions were provided to exercise other options

enumerated therein which were extracted as above. While so, the petitioner

submitted his willingness of option No.2 by making tick mark in the

prescribed form and submitted the same on 19.11.2021. The said option

form which was submitted on 19.11.2021 filed here with as

Exhibit. P3 along with material papers of the writ petition. The 2nd option

clearly indicates that willingness to voluntarily surrender the aid in the form

of surrendering all the duly sanctioned aided posts along with aided staff,

but not the assets, which will make the institutions as private unaided

Educational Institutions.

11. The contention of the learned counsel for the petitioner that even

though the petitioner preferred 2nd option on 19.11.2021, pursuant to the

circular dated 12.11.2021, to his utter surprise, Respondent No.1 issued

G.O.Ms.No.51, dated 01.06.2022 under which the subject institution of the

petitioner was taken over as it is along with assets and converted the said

institution as Government institution contrary to the circular dated

12.11.2021 and options exercised by the petitioner. Hence, the issuance of

G.O.Ms.No.51, dated 01.06.2022 is unsustainable, illegal and contrary to

the material evidence on record.

12. Learned counsel for the petitioner further submits that immediately

after issuance of the G.O.Ms.No.51, dated 01.06.2022, petitioner submitted

a representation dated 01.07.2022 to Respondent No.3 in explaining that

the G.O. was issued in contrary to the option exercised by him and

requested to reconsider and verify the record and withdraw / recall the

G.O.Ms.No.51, dated 01.06.2022. After receipt of the said representation,

Respondent No.3 neither considered the representation and acted upon nor

given any reply to the petitioner even after lapse of nine months. Having no

option the petitioner filed a Writ Petition vide W.P.No.3506 of 2022,

challenging the G.O.Ms.No.51, dated 01.06.2022 and also prayed the Court

for consideration of the representation dated 01.07.2022. After hearing the

same, on 03.11.2022 this Court was pleased to pass an order, directing the

Respondent Nos.2 to 4 to consider the representation of the petitioner dated

01.07.2022 and to pass appropriate orders within a period of four weeks. In

compliance of the orders of this Court dated 03.11.2022, Respondent No.3

passed an order vide Memo No.ESE02-18021/88/2022-PS 3-CSE, dated

05.02.2023 and rejected the request of the petitioner by reiterating that the

petitioner has exercised option No.1 even at the 2nd time. Therefore, the

request of the petitioner is not liable for consideration. Accordingly the

same is rejected.

13. Learned counsel for the petitioner further submits that even though

the petitioner submitted his form in option No.2 on 19.11.2021, erroneously

the respondents came to conclusion with predetermination, as if the

petitioner again exercised option No.1 for surrendering the institution

including the assets of the institution on 06.09.2021 itself to the

Respondent No.4 is a misleading of the fact, since the circular which was

envisaged or provided for exercising 2nd option to the petitioner as well as

other Correspondents of the institutions was issued on 12.11.2021.

Therefore, the exercising of the option No.1 on 06.09.2021 as contended by

the respondents does not arise and it is nothing but misleading of the facts

on hand. He further submits that the petitioner never executed any

irrecoverable and deed of agreements as contended by the Respondents,

since it is only presumption on part of the respondents and also to prejudice

the opinion of this Court. Moreover, such a document neither filed along

with counter nor placed along with original record. Therefore, the

Respondents are intentionally misleading the facts before this Court.

14. Learned counsel for the petitioner further submits that the counter

affidavit of the Respondent No.3 at para-11 stated that the petitioner

exercised option No.1 while submitting a letter to the Respondent No.3 on

01.07.2022 is also contrary to the material facts in hand. Specifically, the

petitioner submitted a representation on 01.07.2022 seeking to recall or

withdraw the G.O.Ms.No.51, dated 01.06.2022 basing upon the order in

W.P.No.35606 of 2022, wherein this Court specifically directed the

Respondent Nos.2 to 4 to consider the representation of the petitioner dated

01.07.2022 and accordingly disposed of the Writ Petition on 03.11.2022.

Hence, the contention of the Respondents before this Court is contrary to

the material facts in hand and with a intention to prejudice the Court by

way of misleading the fact which is nothing but intervention of fair discharge

of justice and also abuse of process of law. Hence the G.O.Ms.No.51, dated

01.06.2022 is liable to be set-aside.

15. On the other hand, learned Government Pleader for School Education

submits that the petitioner submitted his consent letter (option No.1) for

willing to hand over the school including the aided teaching, non teaching,

movable and immovable properties to the Government on 20.07.2021 itself

along with three other schools. But all other schools are submitted not

willing letters. Admittedly, the G.O.Ms.No.50 issued by the Government on

17.08.2021 with a policy to take over the private aided Schools including

minority schools by the Government.

16. Learned Government Pleader for School Education further submits

that School Education Department vide Memo dated 31.08.2021 issued

guidelines pertaining to policy for takeover of willing private Aided Schools

including Minority Schools by the Government, wherein it is stated that all

the Regional Joint Directors of School Education and the District

Educational Officers in the state are requested to take necessary steps for

inviting willingness of Aided managements as per the provisions of the

G.O.Ms.No.50, dated 17.08.2021 and to submit list of willing schools on or

before 15.09.2021. He further submits that Respondent No.4 again issued

proceedings dated 06.09.2021 directing the Deputy Educational Officers and

Mandal Educational Officers of the District to take necessary steps for

inviting willingness of Aided managements as per the provisions of the

G.O.Ms..No.50, dated 17.08.2021 and further directed to submit the list of

willing schools on or before 13.09.2021, pursuant to which the petitioner

again submitted his willingness to hand over the institution along with

assets with a request to change the name of the School from JVNAAA Upper

Primary School to B.K.V.A.Upper Primary School. Therefore, the petitioner

exercised the option No.1 even on 2nd time pursuant to the proceedings

dated 06.09.2021 issued by Respondent No.4. He further submits that the

petitioner exercised his option No.1 in two occasions. i.e. 1) 20.07.2021 and

2) 06.09.2021 and the said letters were submitted along with the memo filed

by respondents on 11.10.2021. He further submits that after willingness

exercised by the petitioner, Respondent No.1 issued G.O.Ms.No.51 dated

01.06.2022 and declared the petitioner institution as Government

institution.

17. Learned Government Pleader for School Education further submits

that the sons of the Jasti Venkata Narayana, whose the name of the school

is running had submitted a letter dated 13.12.2022, wherein they requested

to continue the name of the school as JVNAAA Upper Primary School since

the land was donated by their father and also express their willingness to

surrender the property of the school. It is further stated that the present

correspondence of the School is no way concerned with the property of the

institution. Learned Government Pleader for School Education also relied

upon a judgment rendered by the Hon'ble Apex Court in Shimnit Utsch

India Private Ltd. vs. W.B. Transport Infrastructure Development

Corporation Ltd.1, this Court, in paragraph No.52, observed thus:

52. The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury [Associated Provincial Picture Houses Lid. v. Wednesbury Corporation, MANU/UK WA/0002/1947: (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] reasonableness and free from arbitrariness, irrationality, bias and malice.

18. Learned Government Pleader for School Education further submits

that in view of the ratio laid down by the Hon'ble Apex Court as referred

(2010) 6 SCC 303

supra, G.O.Ms.No.51, dated 01.06.2022 does not warrants any interference

of this Court and the present writ petition is liable to be dismissed.

19. Heard the learned counsel for the petitioner, learned Government

Pleader for School Education and perused the original record which was

produced pursuant to the directions of this Court and also the material filed

along with writ petition.

20. Admittedly, Respondent No.1 issued G.O.Ms.No.50 dated 17.08.2021

with an object to improve overall educational infrastructure by way of

various schemes i.e. Amma Vodi, Manabadi Nadu-Nedu, Vidya Kaanuka,

Gorumudda and Toilet Maintenance Fund etc. Owing to all such schemes,

the educational infrastructure especially in Government Schools has

improved significantly. It is further observed that some of the aided

educational institutions could not run because of very low enrollments and

high operational expenses. In view of this changed circumstances in the

private aided institutions in the state seem to have lost their relevance and

vitality, as most of them are lagging behind the Government and local body

schools. Does the Government felt that the present policy for extending

grant-in-aid to private educational institutions needs to be detailed review

and gross corrections due to which a policy was made to takeover of willing

private Aided Schools including Minority Schools by the Government. It

appears that G.O.Ms.No.50, dated 17.08.2021 under which a policy was laid

down. But, Respondent No.4 without there being such any such policy and

authorization, he conducted a meeting with all the Correspondents of

respective private Aided educational schools within his jurisdiction on

20.07.2021 and he obtained consent / willingness letters from the

Correspondents, more particularly for surrendering aided posts, aided staff

along with assets of the petitioner institution. The said willingness letter as

well as form was filed along with counter by way of memo by the learned

Government Pleader on 11.10.2023 and contending that the petitioner

himself submitted his willingness much prior to the policy framed by

Respondent No.1 is nothing but an action of Respondent No.4 is arbitrary,

high handedness and without jurisdiction in the absence of any such policy

on the date of conducting meeting and obtaining letters of consent from the

petitioner.

21. It is further observed from the material submitted by learned

Government Pleader by way of Memo on 11.10.2023, again the petitioner

exercised his option (option No.1 ) for surrendering aided posts as well as

Staff including assets of the institution pursuant to the proceedings of

Respondent No.4, dated 06.09.2021 is also contrary to their own circular

issued on 12.11.2021 under which the respondents provided opportunity to

all the Correspondents of the private Aided Institutions / Schools for

exercising their options as extracted above. Therefore, the action of

Respondent No.4 in obtaining the letter of consent / willingness including

the option from the petitioner much prior to the circular of Respondent No.1

is nothing but high handedness and arbitrary action on part of the

Respondent No.4. It appears to be Respondent no.4 is acting with most

enthusiasm and also contrary to the Government Orders and circulars.

22. The other contention of learned Government Pleader for School

Education that the petitioner submitted his 2nd option on 01.07.2021 by

opting option No.1. Accordingly he surrendered the institution along with

assets is also contrary to the material facts. On perusal of the material on

record, the petitioner submitted a representation on 01.07.2021 to

Respondent No.3 requesting to recall / withdraw the G.O.Ms.No.51 and also

pleaded to run the school as private unaided upper primary school by

surrendering aided posts to the Government, since the same was not

considered by the Respondents, the petitioner preferred a W.P.No.35606 of

2022, wherein this Court directed the Respondents to consider the

representation of the petitioner and pass appropriate orders. In view of the

facts and circumstances, the Respondent No.4 not acted fairly and

reasonably as required being a public authority.

23. As contended by the learned counsel for the petitioner that the

petitioner exercised option No.2 in 2nd occasion i.e.19.11.2021 pursuant to

the circular dated 12.11.2021 is apparent on the face of the record. Once

Respondent No.1 provided an opportunity for exercising 2nd option pursuant

to which petitioner exercised the same for option No.2. Therefore, the option

No.2 exercised by the petitioner should prevail over 1st option dated

20.07.2021(which is a illegal option) and the Respondents are in statutory

obligation to proceed in accordance with circular dated 12.11.2021, as such

the issuance of G.O.Ms.No.51, dated 01.06.2022 is contrary to the material

facts on record.

24. It is noteworthy to mention here that in view of the dispute whether

the petitioner exercised option No.1 or 2 in the second time, this Court

directed for production of original record. Accordingly, Respondent No.4

produced original record. Surprisingly, the option form exercised by the

petitioner was produced by way of Xerox copy only which is contrary to the

copy filed by the petitioner along with material papers of the writ petitioner.

Moreover the original record also reveals that the petitioner exercised his 2nd

option in option No.1 and also submitted a letter for change of name is

attested and dated on 16.09.2021 which is admittedly prior to the circular

dated 12.11.2021.

25. Therefore, Respondent No.4 intentionally and manifestly mislead this

Court by not submitting the disputed document in original by which he

played a fraud upon the Court for which he is liable for disciplinary action

against him. Accordingly, Respondent Nos.1 and 2 are hereby directed to

look into the matter and initiate appropriate disciplinary proceedings, after

satisfaction of the concerned original documents was intentionally kept out

of the original record submitted before the Court.

26. It is settled law that persons who approached this Court by way of

suppression of material facts with unclean hands not entitled any relief. It

is settled proposition of law that the parties before the Court are supposed

to act fair and reasonable. In Fayaz Ahmad Rather Vs. Union Territory of

J&K and others2 , the Hon'ble Apex Court held as under:

(2023) SCC OnLine J&K 195

23. From the case law referred to hereinabove, we can possibly deduce following principles:

(i) Jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary.

(ii) To invoke this extraordinary, discretionary and equitable jurisdiction, it is of utmost necessity that the petitioner approaching the Writ Court must come with clean hands and put forward all facts before the court without concealing or suppressing anything.

(iii) A litigant is bound to state all facts which are material or relevant to the litigation.

(iv) The litigant must candidly state all the facts before the court without reservation. He cannot be permitted to play "hide and seek" or to "pick and choose" the facts he likes to disclose and keep back or conceal other facts.

(v) Jugglery, manipulation, manoeuvring or misrepresentation has no place in equitable and prerogative jurisdiction.

(vi) Suppression of material facts, concealment of full details of litigation, present and past, between the parties qua subject matter of dispute, distortion or manipulation of relevant facts, misleading the court by stating false facts or withholding true facts disentitle a party to invoke equitable jurisdiction under Article 226 of Constitution of India..."

27. For the reasons stated above and in view of the material facts and

circumstances as mentioned above the present action of the Respondents

basing upon the false statements and false record cannot sustain their

actions. Therefore, the present impugned G.O.Ms.No.51 dated 01.06.2022

is liable to be set-aside, in view of violation of Articles 14, 21 and 30 of the

Constitution of India.

28. Accordingly, the writ petition is allowed. The impugned G.O.Ms.No.51,

School Education (PS-Department), dated 01.06.2022 is hereby set-aside

and all the consequential action of the Respondents are also hereby set-

aside. Further the Respondents are directed to restore the management of

the petitioner's institution and permit the same to run the School by the

management as it is as private un-aided School. There shall be no order as