The State Of Telangana vs Refaheaam High School
2022 Latest Caselaw 6132 Tel

       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:-

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

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

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

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.

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

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

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

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

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.

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

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

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

(2011) 9 SCC 613

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

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

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.

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),

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