Andhra HC (Pre-Telangana)
Pakalapati Satyanarayana Raju vs Government Of A.P. And Others on 19 July, 2001
Equivalent citations: 2001(5)ALD478, 2001(5)ALT763
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. This writ appeal and the writ petition involving common question of law and fact were taken up for hearing together and are being disposed of by this common judgment.
2. At all materials times the petitioner had been working in a paid post. He was appointed as a Superintendent by the 4th respondent-MANSAN Trust (hereinafter referred to as 'the Trust'). The Trust runs several educational institutions. By reason of G.O. Rt. No. 876 Education (EE) Department, dated 16-5-1992 the post of Superintendent was upgraded to the post of administrative officer. Whereas the post of the Superintendent, upgraded as administrative officer, is a paid post, the posts of Secretary and the Correspondent are honorary posts. The incumbent of the post of Correspondent resigned whereafter, his duties were assigned to the petitioner. By reason of an order dated 25-11-1997 the Director of School Education approved the petitioner as administrative officer with effect from 17-10-1997 purported to be in terms of Rule 7 of the A.P. Grant-in-aid Code. The Regional Joint Director of School Education, also approved the posting of the petitioner as Correspondent. Several other authorities also approved the same. The petitioner, however, was placed under suspension by the 4th respondent herein by an order dated 25-12-1999. A writ petition was filed questioning the said order which was allowed by this Court.
3. However, it appears that the Government of Andhra Pradesh issued G.O. Ms. No. 52 Revenue (Endowments I), dated 18-1-2001 for appointment of a full time executive officer; the material portion whereof reads thus:
Government after careful consideration hereby sanction one post of Executive Officer in the cadre of Assistant Commissioner in the scale of pay of Rs. 6,350-13,000 to the 'MANSAS' Trust, Vizianagaram, for appointment of an independent Executive Officer on regular basis, subject to the following conditions:
(i) The pay and allowance of the Executive Officer will be paid by MANSAS Trust.
(ii) The appropriate level officer will be deputed by the Endowments Departments and the corresponding post in the Endowments Department will be suppressed.
(iii) The post shall be used as Executive Officer-cum-Correspondent.
4. A writ petition was filed by the petitioner which was marked as Writ Petition No. 1329 of 2001. In the said writ petition a miscellaneous petition was also filed being WPMP No. 1638 of 2001 wherein the following prayer was made:
.......to suspend the operation of the G.O. Ms. No. 52, Revenue (Endowments-I) Department, dated 18-1-2001 to the extent of utilising the services of Executive Officer as Correspondent pending disposal of the above writ petition and to pass such other order or further orders as the Hon'ble Court may deem fit and proper in the circumstances of the case.
5. By an order dated 30-1-2001 the prayer of the petitioner to suspend the operation of G.O. Ms. No. 52 was rejected on the ground that the same was prematured. On or about 15-3-2001 the 5th respondent entrusted the duties of the Correspondent to the Executive Officer. Another writ petition was filed by the petitioner questioning the said order which was marked as Writ Petition No. 4892 of 2001 wherein an order of stains quo was passed. By reason of the order impugned in the writ appeal dated 27-4-2001 the writ petition filed by the petitioner was dismissed by a learned single Judge of this Court.
6. Mr. V. Venkata Ramana, the learned Counsel appearing on behalf of the petitioner, would submit that the Government of Andhra Pradesh has no authority to direct appointment in the post of Correspondent in terms of Section 24 of the A.P. Education Act.
7. Mr. C. Seetharamaiah, the learned Counsel appearing on behalf of the unofficial respondent, on the other hand brought to our notice that on 15-3-2001, two orders -(1) Rc No. 1/2001-3 and (2) Rc . No. 1/2001-1 have been issued which read thus:
'Rc. No. 1/2001-1:
Pursuant to the orders of the Government and Commissioner, Endowments Department, Hyderabad, Sri B. Veerender Varma, Assistant Commissioner and Executive Officer, MANSAS Trust, Vizianagaram entrusted the duties of the Correspondent, MANSAS Educational Institutions, Vizianagaram forthwith.' 'Rc No. 1/2001-3:
The Management has entrusted the duties of Correspondent to Sri B. Veerender Varma, Executive Officer, MANSAS Trust. He shall not attend to the duties of Correspondent hereafter.'
8. The learned Counsel would contend that the first order dated 15-3-2001 is an independent order of the management. Such an order being within the purview of Section 24 of the said Act, only because the State directing the Executive officer to be appointed as correspondent will be of no significance. The learned Counsel would contend alternatively that the petitioner cannot be said to have any legal right to continue in the post of correspondent. Approval of the State Government would be necessary only in a case where grant-in-aid post is created and not otherwise. The Act was enacted to consolidate and amend the laws relating to the educational system in the State of Andhra Pradesh for reforming, organising and developing the said educational system and to provide for matters connected therewith or incidental thereto.
9. Section 2(28) of the A.R Education Act defines 'manager' to mean:
(i) in relation to a Government educational or special institution, the officer or authority to whom the power of immediate control over the administration of the institution has been entrusted:
(ii) in relation to a local authority education or special institution, the authority or officer of the local authority educational or special institution concerned in charge of education;
(iii) in relation to a private educational or special institution, the person nominated to manage the affairs of the institution under sub-section (2) of Section 24.
10. The power of the State Government to create post of an Executive Officer is not in dispute. It is also not in dispute that having regard to the scheme of the Act it is the management of the institution alone who can appoint Correspondent. The only obligation on the part of the management is to intimate such nomination within 30 days thereof to the competent authority.
11. Such intimation is necessary so as to enable the competent authority to take action against such manager who can be found responsible for the lapses or irregularities of the institution. The competent authority may also for reasons to be recorded in writing, declare a person to be unfit to be a manager of the private institution after giving opportunity to such person of making a representation against such declaration and under intimation to the management whereupon the person aforesaid shall cease to be the manager of the private institution, as a consequence whereof, the management shall have to nominate another person. Section 25 provides for the duties of a manager.
12. Section 79 occurring in Chapter XIV of the Act provides for payment of salaries, allowances and disciplinary action against employees of private institution. Rule 8 of the Grant-in-Aid Code provides for declaration by the management as regards grant-in-aid. Chapter IV of the Code provides for teaching grants on behalf of the aided colleges for general education and for teachers training. Chapter V provides for special education. Rule 7 of the Grant-in-Aid Code whereupon reliance has been placed by Mr. Venkataramana reads thus:
Management :--Every institution on behalf of which aid is sought shall be under the management of one or more persons recognised by the Department; who in the capacity of proprietors, or of trustees or of members of committee elected by the Society or Association by which the institution is maintained, shall undertake to be answerable for the maintenance of the institution and the fulfilment of all the conditions of recognition and aid including the due enforcement of such rules of discipline as are prescribed from time to time.
The management may, with the approval of department, appoint a person as Correspondent to transact the current business of the institution with the department. Applications for change of management in respect of Secondary Schools and Special Institutions (excluding Oriental Colleges) shall be made to the Regional Dy DPI concerned. In respect of all other institutions applications for change of management shall be made to the DPI.
Applications for change of management of institutions should be made to the Director. The Director shall approve the change of correspondentship in respect of college. The change of correspondentship in respect of other institutions shall be approved by the officers authorised by the Director in that behalf.
The Director, may, after giving an opportunity for making representation declare any person unfit to hold the post of Correspondent in respect of a College receiving aid under the Code and remove him from the correspondentship either permanently or for receiving aid under the Code and remove him for a specified period for provided charge of maladministration or for failure to comply with for not following or adhering to the instruction issued by the department, besides taking such other action as may be deemed necessary under the provisions of the Code. The order of the Director in all such matters shall be final.
13. Having regard to the fact that the post of Correspondent is an honorary post, question of taking recourse to such grant-in-aid in relation to the said post of 4th respondent herein does not arise.
14. As noticed hereinbefore, upon appointment of the Executive Officer, the management has issued two letters on 15-3-2001. On is independent of the appointment of the Executive Officer and another pursuant to the directions contained in G.O. Ms. No. 52.
15. If the 4th respondent herein does not want the petitioner herein to continue as Correspondent, he cannot claim any legal right to continue to occupy the said post. As indicated hereinbefore he has been appointed only to look after the office so long as another Correspondent is not appointed. He does not have any legal right to continue on the said post as he was appointed only on officiating basis.
16. It is also well settled that when there exists two sources of power, an action shall not be invalidated only because it is found that exercise of one source of power was without jurisdiction. It is also well settled that non-mentioning of the provisions of law or quoting wrong provisions of law would become irrelevant if power therein exists. (See State of Karnataka v. Krishnaji Srinivas Kulkarni, ).
17. In this view of the matter, we are of the opinion that the petitioner herein has no legal right to continue in the said post. In any event, as the right of the petitioner to continue in the said post is not governed by any statute as by reason of the impugned order he has not been dismissed, discharged or reduced in rank and no punitive measure has been taken, he cannot maintain a writ application. Reference in this connection may be made to Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58. The matter would have been different had the services of the petitioner were protected under a statute. In Ram Saran Shastry v. State of W.B., 1995 (1) CHN 419, one of us (S.B. Sinha, CJ) held:
Admittedly the post was not sanctioned. There is no dispute that none of the statutory requirements was followed in the appointment of the petitioner as a teacher in the school. The appointment was de hors the statute. Prayer for exercise of jurisdiction in view of the wrongs done to the petitioner not accepted. The conditions of service of the petitioner was not governed by any statute or statutory rules. The petitioner did not receive any salary or allowances from the Government. No account is being spent on the petitioner from the public fund. Even Grant-in-Aid Code is not applicable in the case of the petitioner nor any breach of the condition has occurred. No writ lies against the Managing Committee of the respondent school as the writ petition does not involve any public law element between the petitioner and the concerned respondents.
18. It is true that one of us (V.V.S. Rao, J.) in K. Rama Sastry v. Government of A.P.,, referring to Most Rev P.M.A Metropolitan v. Moran Mar Marthoma, , held:
.....right to establish educational institution perhaps could be 'occupation' within the meaning of Article 19(1)(g) of the Constitution of India. Be that as it may, a person, who starts an educational institution as a mission for the purpose of charity has also right to nominate his successor, for the founder has an incorporeal transferable right in the educational institution. In the event of any dispute among the rival claimants for such incorporeal rights to manage the educational institution the dispute has to be necessarily resolved in a civil Court. There is always complex and competing oral evidence to be appreciated and hence it is better the matter is resolved in a civil Court because the right to the management of an educational institution is a common law right and the jurisdiction of the civil Court in such a case is not specifically ousted. Therefore, the competent educational authority be it DEO, or Regional Joint Director or Director has no competence to appoint management. In the event of a dispute the educational authority has to necessarily await the decision by a competent civil Court has to the right of a claimant to manage an educational institution.
19. But such a question does not arise in this case inasmuch, as noticed hereinbefore, the petitioner has been appointed only on officiating basis. In any event, unless there exists a statutory interdict, an appointing authority has also the power to remove him.
20. For the reasons aforementioned, there is no merit in the writ appeal and the writ petition which are accordingly dismissed. There shall be no order as to costs.