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Thursday, September 8, 2011

the effect of the ban order imposed by the State Government vide Memo No.1280/COSE/A2/2004-4 dated 20th October, 2004, on the filling up of existing vacancies in the aided posts of teachers where the recruitment process had already been initiated by the management of the private schools. « advocatemmmohan

REPORTABLE



IN THE SUPREME COURT OF INDIA



CIVIL APPELLATE JURISDICTION



SPECIAL LEAVE PETITION (CIVIL) NO.9541 of 2007





GOVT. OF A.P. & ORS. ... PETITIONERS



Vs.



SRI SEVADAS VIDYAMANDIR HIGH

SCHOOL & ORS. ... RESPONDENTS



WITH



S.L.P.(C) No.10945 of 2007

AND

S.L.P.(C) No.469 of 2011

AND

S.L.P.(C) No.15231-32 of 2011





J U D G M E N T





ALTAMAS KABIR, J.




1. Two Special Leave Petitions, being SLP (C)



Nos.9541 of 2007 and 10945 of 2007, arising out of



the judgment and final order dated 29th December,



2006, passed by the Andhra Pradesh High Court have

2




been taken up for consideration together, along



with SLP(C)No.469 of 2011, which is directed



against the judgment and order dated 9th July, 2009,



passed by the said High Court in W.A.M.P.No.661 of



2008 in W.A.No.954 of 2009 and SLP(C)Nos.15231-32



of 2011, which are directed against the judgment



and order 17th August, 2010, passed by the said High



Court in W.A.No.1868 of 2003 and W.P.No.24066 of



2004. Inasmuch as, SLP(C)Nos.469 of 2011 and



15231-32 of 2011 arise out of different orders of



the Andhra Pradesh High Court, the same will be



dealt with separately, although, they have been



taken up for hearing along with the other Special



Leave Petitions.





2. For the sake of convenience, we shall refer to



the facts in SLP(C)No.9541 of 2007 (Government of



Andhra Pradesh & Ors. Vs. Sri Sevadas Vidyamandir



High School & Ors.) in deciding the matters.

3




3. The subject matter of the various writ



petitions, which were disposed of by the learned



Single Judge of the Andhra Pradesh High Court,



culminating in the various appeals, which were



disposed of by the common judgment dated 29th



December, 2006, is the effect of the ban order



imposed by the State Government vide Memo



No.1280/COSE/A2/2004-4 dated 20th October, 2004, on



the filling up of existing vacancies in the aided



posts of teachers where the recruitment process



had already been initiated by the management of the



private schools. The learned Single Judge, who had



heard the writ petitions, had declared that the



said ban would not be applicable to the recruitment



process already initiated by the management of the



private schools for filling up the vacant aided



posts of teachers prior to the coming into effect



of the aforesaid memo. The learned Judge had given



a further direction to the said authorities to



allow the writ petitioners to complete the process

4




of selection. In some cases, a further prayer was



made that the concerned authorities be also



restrained from transferring teachers from one



school to another by declaring them surplus and to



release the amount of salaries payable to the



teachers appointed against the aided posts.





4. For the sake of convenience, the Division Bench



of the Andhra Pradesh noted the facts from the



paper book of W.A.(S.R.)No.121938 of 2005, filed by



the Government of Andhra Pradesh and Others against



an order dated 9th March, 2005, passed by the



learned Single Judge in Writ petition No.22804 of



2004, i.e., C.A.M. High School, Nellore Vs.



Government of Andhra Pradesh and others, wherein,



pursuant to leave granted, a prayer had been made



for quashing the impugned Memo dated 20th October,



2004, along with Rc.No.140/B2-1/2005 dated 3rd



November, 2005, issued by the Director of School



Education, Andhra Pradesh, Hyderabad.

5





5. C.A.M. High School, Nellore, is a private aided



school established by Samavesam of Telugu Baptist



Churches, wherein all the posts of teachers



sanctioned for the school are aided posts. In



2004, the management of the school approached the



District Education Officer, Nellore, for grant of



permission to fill up the existing vacant posts.



The said officer, by his letter dated 17th



September, 2004, to the Regional Joint Director,



School Education, Guntur, recommended grant of



sanction to the management of the school to fill up



the vacant aided posts. Such permission was duly



granted by letter dated 22nd September, 2004, which



has been reproduced in full in the judgment of the



Division Bench of the Andhra Pradesh High Court.



Pursuant to such permission being granted by the



Regional Director of School Education, Guntur, the



management of the school initiated the recruitment



process by requesting the District Employment

6




Officer, Nellore, to forward the names of eligible



candidates and also by publishing advertisements in



two daily newspapers inviting applications for



filling up the vacant posts.





6. While the recruitment process was underway, the



school was informed that the Government had issued



the above-mentioned Memo dated 20th October, 2004,



imposing a ban on the filling up of the vacant



posts and, therefore, the selection process could



not be completed. The management thereupon filed



Writ Petition No.22804 of 2004 for a declaration



that the decision contained in the said Memo dated



20th October, 2004, was not retrospective and the



same could not, therefore, be applied to the



ongoing process of recruitment initiated for the



purpose of filling up the vacant aided posts for



which permission had already been granted by the



competent authority. As was noted by the Division



Bench, in the counter filed by the District

7




Education Officer, Nellore, it was not disputed



that in furtherance of the sanction granted by the



Regional Joint Director, Guntur, the process of



recruitment of 8 teachers had been initiated by the



management of the school and that Shri M.



Ramalingam, Deputy Educational Officer, had been



nominated as the departmental representative on the



Staff Selection Committee. In fact, the date of



interview had been fixed in consultation with Shri



Ramalingam, but the same could not be completed on



account of the promotion of Shri Ramalingam as the



District Education Officer.





7. Thereafter, the management of the school suo



motu fixed 14th December, 2004, as the date of the



interview, but, although, the interviews were held,



no further steps could be taken up on account of



the ban order imposed by the State Government vide



Memo dated 20th October, 2004. The Division Bench



observed that the learned Single Judge had taken

8




note of the fact that while permission had been



given to fill up the vacant posts on 22nd September,



2004, the Memo in question was issued subsequently



on 20th October, 2004.





8. Various appeals had been filed by the State of



Andhra Pradesh against the said decision of the



learned Single Judge before the Division Bench.



While the appeals were pending, the Government



began a process of rationalization for filling up



all the vacant posts. Taking note of the same, the



Division Bench adjourned the hearing of the appeals



with liberty to the counsel for the writ



petitioners in one of the cases to comprehensively



amend the pleadings and also to challenge the



legality of the Memo dated 20th October, 2004, if so



advised. In furtherance of such leave, the writ



petition filed by the C.A.M. High School, Nellore,



was amended to challenge the legality of the said



Memo dated 20th October, 2004. Ultimately, the

9




Division Bench dismissed the appeals filed by the



Government of Andhra Pradesh and allowed the writ



petitions filed by the management of the private



schools and directed that they would be free to



appoint selected candidates and seek approval of



such appointments from the Competent Authority.



The Division Bench also quashed the exercise of



rationalization undertaken in furtherance of the



interim order dated 31st October, 2005, together



with the directions contained in the letter dated



3rd November, 2005, issued by the Director of School



Education, with liberty to the Competent



Authorities to undertake a fresh exercise of



rationalization, which might lead to certain



teachers being declared surplus and for their



absorption.





9. Appearing for the Government of Andhra Pradesh,



Mr. P. Vishwanatha Shetty, learned Senior Advocate,



submitted that the ban order imposed by the State

10




Government, vide Memo dated 20th October, 2004, came



into operation in respect of appointments of



teachers in private aided institutions in the



State. Mr. Shetty submitted that the Government of



Andhra Pradesh, which had the full authority to



extend grant-in-aid to educational institutions,



also possessed the consequential and incidental



power to adjust the posts covered under the grant-



in-aid scheme and to transfer personnel from one



institution to another. Since a decision had been



taken up by a High Power Committee presided over by



the Chief Minister, its decision was final and



conclusive and it was not open to the High Court to



scrutinize the same. It was submitted that in



certain eventualities it could become necessary to



declare staff of a school to be surplus and to



transfer them to other schools and the power of the



Government in such cases could not be curtailed.



Mr. Shetty submitted that it is to meet such



eventualities that a decision had been taken by the

11




State Government to rationalize the staff pattern



of the different institutions on a need-based



basis.





10. On the other hand, it was emphatically argued



on behalf of the respondent School that the Memo



dated 20th October, 2004, did not have retrospective



effect and could not, therefore, stultify the



recruitment process initiated by the management of



private aided schools where permission of the



Competent Authority had been given prior to 20th



October, 2004. Accordingly, it was incumbent on



the part of the Competent Authority to grant



approval for the appointments made pursuant to the



permission granted prior to 20th October, 2004, to



the private aided schools for filling up the vacant



posts in the school.





11. Holding the brief on behalf of Ms. Sunita Rao,



learned Advocate, appearing for the respondent



schools, Ms. Mahalakshmi Pavani, learned Advocate,

12




submitted that as had been held by the Division



Bench of the Andhra Pradesh High Court, the



rationalization process was violative of Rule



10(17) of the A.P. Educational Institutions



(Establishment, Recognition, Administration and



Control of Schools Under Private Management) Rules,



1993, inasmuch as, although, the said statutory



Rules stipulated that the strength of students in



private aided schools for two consecutive years



would be the determining factor for transfer of



surplus staff, the State had resorted to a wholly



whimsical and arbitrary method to determine such



surplus staff. Ms. Pavani submitted that in any



event, having permitted the schools in question to



fill up the vacant grant-in-aid posts after taking



into account the need and the roll and attendance



of students, it was no longer open to the State



Government to adopt a different posture on account



of the Memo dated 20th October, 2004, which was, in



any event, prospective and not retrospective. Ms.

13




Pavani submitted that interviews had been duly



conducted on 14th December, 2004, for filling up the



vacant posts in question, but the State Government



had quite unreasonably refused to allow the



recruitment process to be completed and to grant



approval to candidates who had already been



interviewed and had been selected for appointment.





12. Having considered the submissions made on



behalf of the respective parties, we are of the



view 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 20th October, 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

14




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 rationalization 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.



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.

15





13. 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.





14. As far as SLP(C)Nos.15231-32 of 2011 are



concerned, the same have been filed by the



Government of Andhra Pradesh, represented by its



Principal Secretary, Education Department,



Hyderabad, against Shaik Lal Mohammed and others.



These Special Leave Petition are directed against



the orders in the Writ Appeals filed by the



Correspondent, Asafia High School, Malakpet,



Hyderabad, against Shaik Lal Mohammed and others.



The school was aggrieved by the order of the



learned Single Judge in a writ petition filed by



two employees of the school for a direction upon



the State authorities to convert their posts into



Class IV posts with effect from 9th June, 1980 and

16




16th March, 1981, respectively, and to pay them



their arrears of salaries, which, according to



them, were due. The two respondents had worked as



sweeper and gardener-cum-watchman from 9th June,



1980 and 16th March, 1983, respectively. It was



their claim that since their posts had been



admitted into the grant-in-aid scheme and they had



been appointed as full-time contingent employees,



they were entitled to claim the benefit of certain



Government Orders under which they were entitled to



be converted as employees on the last grade service



and the salary attached to such grade.





15. Claims of the said respondents were rejected



by the State authorities on the ground that the



posts had not been created under the orders of the



Competent Authority and they had not been in



service for a period of 10 years as on 1st April,



1985. Furthermore, they had not acquired the



minimum educational qualification of Class VII as

17




on the day G.O.Ms.No.259 dated 18th June, 1993, had



been published. The learned Single Judge held that



the said G.O.Ms. dated 18th June, 1993, was



applicable to the said two respondents, who were



the writ petitioners, and since the said findings



had not been challenged by the Government, they had



become final and, accordingly, the said respondents



were entitled to have their posts converted into



Class IV posts. Consequently, the order of



rejection passed by the Regional Joint Director,



Hyderabad, dated 6th April, 2004, was set aside and



the writ appeal filed by the State against the said



decision of the learned Single Judge was dismissed



and the writ petitions filed by the said respondent



Nos.1 and 2 were allowed.





16. It is in the light of the finding of the



Division Bench of the High Court that findings of



the learned Single Judge, had not been challenged,



that G.O.Ms.No.259 dated 18th June, 1993, was made

18




applicable to the petitioners. As the same had



become final as between the writ petitioners and



the State and it was no longer open to the State to



come to a different conclusion, we see no reason to



interfere with the impugned decision of the High



Court and the said Special Leave Petitions are,



accordingly, dismissed also.





17. As far as SLP(C)No.469 of 2011 is concerned,



the same has been filed against the judgment and



order dated 9th July, 2007, passed by the Division



Bench of the Andhra Pradesh High Court, rejecting



the prayer made on behalf of the State and the



State authorities to condone the delay of 366 days



in filing the writ appeal. Even the filing of the



Special Leave Petition was delayed by 107 days.



Since the subject matter of the writ petition was



also with regard to the application of the ban



order imposed by the Memo dated 20th October, 2004,



which we have already considered in SLP(C) Nos.9541

19




and 10945 of 2007 decided in the earlier part of



the judgment, we are not inclined to interfere with



the order of the Division Bench dismissing the writ



appeal on the ground of delay. The SLP(C)No.469 of



2011 is, therefore, dismissed in the light of the



decision rendered in the aforesaid Special Leave



Petitions and also on the ground of delay.





18. Having regard to the different circumstances in



which the Special Leave Petitions have been filed,



the parties will bear their own costs therein.





............................................................J.

(ALTAMAS KABIR)





............................................................J.

(CYRIAC JOSEPH)





............................................................J.

(SURINDER SINGH NIJJAR)



New Delhi,

Dated: 06.09.2011

the effect of the ban order imposed by the State Government vide Memo No.1280/COSE/A2/2004-4 dated 20th October, 2004, on the filling up of existing vacancies in the aided posts of teachers where the recruitment process had already been initiated by the management of the private schools. « advocatemmmohan