Andhra HC (Pre-Telangana)
K. Rama Sastry vs Government Of Andhra Pradesh And Others on 11 September, 2000
Equivalent citations: 2000(5)ALD601, 2000(5)ALT392, AIR 2001 ANDHRA PRADESH 28, (2000) 5 ANDHLD 601, (2000) 5 ANDH LT 392, (2001) 3 ESC 1009
ORDER
1. All the four writ petitions arise out of an existing dispute as to the right to manage an Aided Elementary School in Bhattiprolu. The issues that arise in the writ petitions are interconnected. The petitioner is the same and the respondents are educational authorities. Therefore, the writ petitions are proposed to be disposed of by this common order. The parties are referred to by their status in WP No.21601 of 1997.
2. One K. Subrahmnyam started an Elementary School in Bhattiprolu village in 1940. The school known as Aided Elementary School (K.S.), (hereinafter called 'the school') was admitted to grant-in-aid. Subrahmanyam was himself discharging the functions of the management, manager and correspondent of the school. Subrahmanyam has six sons - K. Neelakanteswara Rao, K. Kama Sastry, (petitioner) K. Shankara Rao, K. Venkateswara Rao, K. Panakala Rao and K. Lakshmikantha Rao, (fourthrespondent). On 27-6-1988 Subrahmanyam made an application to the District Educational Officer (DEO) requesting transfer of the management and correspondentship in favour of the petitioner. The DEO issued proceedings on 26-10-1988 approving the transfer of management and correspondentship to the petitioner. As on that date, the petitioner was working in Irrigation Department of Government of Andhra Pradesh. It is also pertinent to note that the fourth respondent claims that on 22-2-1988, Subrahmanyam made an application to the DEO transferring the management and correspondentship in favour of the fourth respondent.
3. Subrahmanyam died on 15-12-1989. As on that date though he was a Government employee the petitioner was administering the school as management, manager and correspondent. He continued to do so from 27-10-1988 to 1-4-1993. On 2-4-1993 the DEO issued orders effecting changes of management in favour of the fourth respondent. Again on 7-4-1993 the DEO modified the order dated 2-4-1993 changing the correspondentship from the petitioner to fourth respondent. The petitioner challenged these two orders of the DEO in WP No.7773 of 1993 before this Court. As there was no prior notice to the petitioner, who was managing the school, this Court allowed the Writ Petition on 14-4-1995 giving liberty to the DEO to conduct enquiry after giving opportunity to the rival claimants. From 2-4-1993 to 16-6-1995 the Fourth respondent managed the school as correspondent. After the judgment of this Court in WP No.7773 of 1993, the DEO appointed Mandal Educational Officer (MEO) to look after the affairs of the school as special officer, who took charge on 16-6-1995.
4. As directed by this Court in WP No.7773 of 1993 the DEO issued notices to all the sons of late Subrahmanyam, got enquiry conducted through Deputy DistrictEducational Officer, Bapatla, and based on the report of the Deputy District Educational Officer, issued proceedings dated 14-8-1997. In the said proceedings the DEO approved the appointment of the fourth respondent as manager and correspondent of the school. WP No. 21601 of 1997 is filed questioning the proceedings of the DEO dated 14-8-1997.
5. Aided Elementary School (K.S), Bhattiprolu, represented by K. Rama Sastry, petitioner in WP No.21601 of 1997, filed WP No.4866 of 1999 seeking a direction to the Government of Andhra Pradesh, the Director of School Education and the DEO to pay the amounts to the management of the petitioner-institution for the years from 1-4-1978 to 31-3-1999. The same petitioner filed WP No.3429 of 2000 questioning the action of the DEO and the fourth respondent in inviting applications from eligible candidates to fill up three aided posts of secondary grade assistants. The other writ petition, being WP No.9496 of 2000 is filed by the petitioner for a direction forbidding the DEO and the fourth respondent from shifting ihe school from its own site and building to other building.
6. The petitioner, who initially engaged a Counsel later, appeared as Party-in-Person. When the interlocutory application being WP MP No.12134 of 2000 in WP No.9496 of 2000, seeking a direction to the DEO and the fourth respondent not to shift the school, was listed before this Court, the learned Government Pleader for School Education and the fourth respondent as well as the Party-in-Person made a request to dispose of all the matters finally. Accordingly, all the four writ petitions were directed to be listed and were heard together.
7. The DEO filed counter-affidavit inter alia stating that after the judgment of this Court in WP No.7773 of 1993 the DEO issued proceedings on 16-6-1995 toall the legal heirs of late Subrahmanyam calling upon them to file a detailed reply, that pending enquiry Special Officer (MEO) was appointed to draw the salary of the teachers, that the petitioner did not submit a reply, that the DEO by proceedings dated 9-8-1995 directed the Deputy District Educational Officer to conduct enquiry that, the petitioner did not appear before the Deputy District Educational Officer on 7-12-1995 though he was specifically summoned, that the statements of 29 persons, including family members of late Subrahmanyam, Sarpanch, MPTC Members, Ward Members, teaching staff and other residents of Bhattiprolu, were recorded by the Deputy District Educational Officer and that the Deputy District Educational Officer submitted a report on 15-12-1995 reporting that the petitioner committed number of irregularities and all those who participated in the enquiry expressed desire that the petitioner is not a fit person to hold the management of the school. The petitioner, who received the show-cause notice dated 22-5-1997 did not submit any explanation/ defence statement. He addressed a letter on 2-7-1997 requesting supply of copies of documents and the office of the DEO did not receive another letter dated 22-7-1997 allegedly sent by the petitioner within the stipulated time. After considering all aspects, the DEO issued proceedings dated 14-8-1997 approving the appointment of the fourth respondent as manager and correspondent.
8. The fourth respondent in his counter-affidavit states that late Subrahmanyam with the consent of other sons appointed fourth respondent as manager and correspondent of the school. The petitioner tampered the declaration given by late Subrahmanyam and forwarded the same to the DEO who appointed the petitioner as correspondent without visualising the fraud played by the petitioner. The petitioner resorted to various irregularities liketerminating teachers, reinstating teachers after taking bribe, threatening teachers with termination etc. On 6-3-1993 the three brothers and sister-in-law (wife of elder brother late Neelakanieswara Ran) issued no objection certificate requesting the DFO to appoint fourth respondent as correspondent. The brothers also produced a copy of the declaration issued by their father. The DEO accordingly appointed fourth respondent as manager of the school, which was later, clarified as appointment as correspondent and since then he is continuing as Correspondent form 7-4-1994. Other allegations are same as those made in the counter of DEO.
9. The petitioner submits that having accepted the transfer of the management by late Subrahmanyam to him, the DEO has no power or authority to again approve the appointment of fourth respondent as manager and correspondent of the school. He also contends that no notice was issued before passing the orders in proceedings dated 14-8-1997 approving he appointment of the fourth respondent as correspondent and therefore, the order is null and void. The fourth respondent is working as a teacher in an aided post in other school and therefore he is not eligible for being appointed either as manager or as correspondent of the school. The petitioner also submits that the Government and the DEO are bound to pay maintenance grant as per G.O. Ms. No.320, dated 16-9-1994 and in the inaction on the part of the authorities is arbitrary and illegal and therefore he sought a direction for release of grant. The DEO and the fourth respondent have conducted the selection to fill up three aided posts of secondary grade teachers and completed selections on 14-3-2000 without following communal roaster and the Andhra Pradesh Public Employment (Organisation of Local Cadres) Order, 1974 (the Presidential Order). Lastly the petitioner submits that the fourth respondent is shifting the school contrary toSection 20(3)(b)(i) of the Andhra Pradesh Education Act, 1982 ('the Act' for brevity).
10. Learned Government Pleader relies on various provisions of the Act and submits that when there is a dispute as to the enjoyment of right to the management of a private school, the DEO is not a competent authority to decide the issue. Under Section 24 of the Act the competent authority only recognises the correspondent/ manager as nominated/appointed by the management for the purpose of day-today administration of the school. The correspondent/manager is answerable for implementation of various provisions of the Act, Rules and the Guidelines issued by the educational authorities. Therefore, the learned Government Pleader submits that the petitioner and the fourth respondent may be relegated to a suit for seeking appropriate declaration of right of management of the school.
11. The learned Counsel for the fourth respondent submits that by virtue of the proceedings dated 14-8-1997, the fourth respondent is acting as correspondent of the school and therefore the fourth respondent alone is entitled to claim any grant and the petitioner has no locus standi to claim any maintenance grant from the authorities and also to question the action of the DEO as well as the fourth respondent in conducting selections to fill up aided posts of secondary grade teachers.
12. It is also pertinent to notice that in WP MP No.4501 of 2000 in WP No.3429 of 2000 this Court passed interim orders on 3-3-2000 directing the DEO to constitute a selection committee by including the petitioner as well as the fourth respondent as interview committee members. Accordingly, the petitioner also was one of the selection committee members. Be that as it may, it is not denied that on 14-3-2000 the selection committee consisting of thepetitioner and the fourth respondent besides others conducted interviews and selected candidates. The selected teachers also joined the posts on 23-3-2000.
13. In the light of the rival submissions made by the Party-in-Person, the learned Government Pleader and the learned Counsel for the fourth respondent, the points that arise for consideration are:
(1) Whether the educational authorities are competent to change the management of the educational institutions and what is the scope of Section 24 of the Act?
(2) Whether the educational authorities after having approved the transfer of the management once, can rescind orders and accord approval for appointment of correspondentship of the management without there being any proposal from the management of the educational institutions?
(3) Whether the proceedings issued by the DEO, Guntur, in Rc.No.3595/CS/93 dated 14-8-1997 are legal and valid ? and (4) To what relief?
14. Before considering various points that arise for consideration it is necessary to notice the history of Legislation to regulate and control private institutions. Since ages philanthropic individuals and groups of individuals established private educational institutions as a charity. Even when an individual all alone establishes a school for imparting education, there is no profiteering motive. Indeed, profit making cannot be an object of establishing educational institutions. When the State started funding education even in private educational institution by giving grant-in-aid the Government issued various executive instructions from time to time, which also dealt with the methodand manner of appointment of manager or sometimes called correspondent. A manager/correspondent is the person who was made responsible for proper utilisation of grant-in-aid. Though the A.P. Grant-in-Aid Code (compilation of various Government Orders) is non-statutory, but still the Rules contained in Grant-in-aid Code were followed in the matter of sanctioning grant-in-aid. Rule 2 of the Code contains definition of manager, which says manger including Board of Managers. Rule 7 of the Code lays down that every institution on behalf of which aid is sought shall be under the management of one or more, persons recognised by the education department, who in the capacity of proprietors, or of trustees or of members of the committee elected by the Society or Association by which the institution is maintained, shall undertake to be answerable for the maintenance of institution and the fulfilment of all conditions of recognition and aid including due enforcement of Rules. The management is also required with the approval of the department to appoint a person as correspondent to transact current business of the institution with the department.
15. The application for change of management in respect of secondary schools and special institutions shall be made to Regional Deputy Director of Public Instruction and in respect of other institutions to the Director of Public Instruction. Likewise, the change of correspondentship can only be effected with the approval of the competent authority. The Director is also empowered to declare any person unfit to hold the post of correspondentship in respect of a college receiving aid and remove correspondent permanently or for a specific period for proven charge of maladministration. An important facet of Grant-in-Aid Code is that the same is applicable for educational institutions other than elementary schools. Be that as it may, theGrant-in-Aid Code provides that the competent authority has to recognise the management either consisting one or more persons or an association and also approve the correspondent appointed by the management.
16. The 'management' and 'the correspondent' of an educational institution are two distinct entities. However, in case the 'management' is only one person, the Code does not prohibit the same person being correspondent also.
17. The Andhra Pradesh (Andhra Area) Elementary Education Act, 1920 provided for better management of elementary education in Andhra Area of State of Andhra Pradesh. Section 3(xii) defined public management as managed by the State Government or local authority and alt other managements are private management's. The Act provided for Government contribution and for providing education taxes by local authorities. This Act was amended in 1935, 1939, 1943 and 1946. Section 56 of 1920 Act empowered the State Government to make Rules for declaring the conditions subject to which elementary schools may be admitted to recognition or aid.
Andhra Pradesh Primary Education Act, 1961 repealed 1920 Act as well as Andhra Pradesh (Telangana Area) Compulsory Primary Education Act, 1952. Section 2(b) of 1961 Act defined approved school under private management as recognised by Education Department for the purpose of 1961 Act. In pith and substance 1961 Act contains law relating to free and compulsory primary education for the children in the State of Andhra Pradesh. It is not, however, denied that the matters relating to recognition of educational agency, grant and approval of recognition and aid were being done in accordance with Grant-in-Aid Code.
In 1975, the State Legislature enacted the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975 (hereinafter called '1975 Act') to provide for control over the recognised private educational institutions and to provide for conditions of service of teachers in such schools. Section 2(2) defined educational agency as any person or body of persons entrusted with the establishment, management and maintenance of such private educational institution. Section 10 of 1975 Act provides for inspection or enquiry by a competent authority and Section 11 requires the educational agency to furnish returns, statistics and other information to the competent authority. The contravention of the provisions of the Act is made a punishable offence under Section 12. Under 1975 Act also educational agency i.e., a person or body persons is the management of the institution. A reading of the definition under Section 2(2) indicates that a person or body of persons can be entrusted with the management and maintenance of the educational institution.
18. The law of education, as adumbrated in 1920 Act, 194S Act, 1956 Act, 1961 Act and 1975 Act, was consolidated and amended by Act 1 of 1982 i.e., the Andhra Pradesh Education Act, 1982 (hereinafter called 'the Act'), which repealed all the earlier enactments, some of which are referred to hereinabove. It is necessary to notice the definition of educational agency, educational institution, management and manager, as defined by the dictionary clause of the Act.
Section 2(17) Educational agency: Educational agency means in relation to,--
(a) any minority educational institution, (anybody of persons which,) has established and in administering or proposes to establish and administer such minority educational institution, and
(b) any other private educational institution, (any body of persons) entrusted with the establishment, management and maintenance of such private educational institution.
Section 2(18) Educational institution: Educational institution means a recognised school, (colleges including Medical College), special institution or other institution (including an orphanage or boarding home or hostel attached to it) by whatever name called, the management of which carries on (cither exclusively or among other activities) the activity of imparting education therein, and includes every premises attached thereto; but does not include a tutorial institution.
Section 2(27) Management: Management means the managing Committee or the governing body, by whatever name called, of a private institution to which the affairs of the said institution are entrusted, but does not include manager.
Section 2(28) Manager: Manager means-
(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 educational or special institution, the authority or officer of the local authority educational or special institution, concerned incharge 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."
19. Under the Act educational agency in relation to minority educational institution is a body of persons, which has established the institution, and in the case of private educational institution body of persons entrusted with the establishment, management and maintenance of such private educational institution. The manager is the person who is to take care of the day-today affairs of the institution whereas the management means the only managing committee or the governing body of private institution. Therefore, the concept of a single person being educational agency or management is specifically omitted from the scheme of the Act. After coming into force of the Act with effect from 13-7-1982, no educational agency can establish an institution without obtaining permission from the competent authority. Section 20-A of the Act which was inserted in the parent Act by Andhra Pradesh Education (Amendment) Act, 1987 prohibits a single individual from establishing a private institution. From coming into force of 1987 Amendment Act only group of persons or societies or associations alone are entitled to establish educational institutions. The private institutions established by an individual and recognised by the competent authority prior to 1987 Amendment Act are however excluded from the rigour of Section 20-A of the Act.
20. Another important provision, which has to be noticed, is Section 24 of the Act, which deals with appointment and removal of manager of private institution. Subsection (1) of Section 24 of the Act provides that the management of every private institution shall be constituted in such manner with such a number of members as may be provided by the Rules made by the Government. The management constituted under sub-section (1) of Section 24 shall nominate a person to manage the affairs of the institution whether such manager is called secretary/correspondent/manager orany other name. In the event of complaint against management of lapses/irregularities the competent authority may suspend the management and appoint special officer till reconstitution of the management and if the manager is responsible for such lapses/ irregularities, the competent authority may recommend to the management to take action against the manager. Section 25 of the Act provides for duties of manager of private institution.
21. In exercise of powers conferred under Section 99 read with Sections 20, 21, 79, 80 and 83 of the Act, the Governor of Andhra Pradesh promulgated the Rules relating to grant of permission for establishment of schools, up-gradation of schools, according recognition to schools, administration of schools and disciplinary and control of the employees of the schools under the management. (G.O.Ms.No.1, Education (PS2), dated 1-1-1994). These Rules are called Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (the Rules for brevity). It is necessary to notice the relevant Rules.
22. In respect of primary and upper primary schools, the DEO is competent authority as per Section 2(12) of the Act read with Rule 3 of the Rules. Rule 15 of the Rules provides that every educational agency shall constitute a governing body consisting of president of the agency, manager (by whatever name called), headmaster, one representative of teaching staff, president of parent-teachers' association and an educated mother from among the parents to be nominated by educational officer. The president of the educational agency shall be the chairman of the governing body. As per Rule 16 the governing body is entrusted with the duty to advise the educational agency in various aspects of administration of schools, etc.
23. The conspectus of various provisions of the Act and Rules shows that the educational agency, the management and the manager (be in secretary or correspondent) are different and distinct bodies/entities. The educational agency is a person (at present it can only be a group of persons, whatever be the nature of such group) or an association, which may have one or more educational institutions under their control. The management is the governing body for each school or educational institution to be constituted by the educational agency and approved by the competent authority in accordance with the Rules. Each management has to nominate or appoint the manager for each school to manage the affairs of the institution under sub-section (2) of Section 24 of the Act. In case the educational institution is established by a single individual or a person prior to coming into force of Andhra Pradesh Education (Amendment) Act, 1987, the law recognises such person or individual as the educational agency or/and the management. It is possible that the same person may request the competent authority to recognise such person alone as the manager/correspondent. If there be more number of educational institutions under such person, it is possible for the single person management to appoint different managers for different educational institutions. After coming into force of the Act and the Rules even such individual person has to comply with Rule 15 in constituting a governing body having regard to the intention of the Act and the Rules of entrust the function of advising the educational agency to the governing body. The controversy in this case needs to be resolved in the above statutory environment.
In Re Point No. 1:
24. Either under the Act or under the relevant enactments, which stoodrepealed by the Act, the competent authority is given power to recognise the management and approve the appointment of manager. The right to change the management as distinguished from recognising the management does not inhere in the competent authority. Indeed a person, who establishes an educational institution, can himself act as management or entrust the management to some other person. However, after coming into force of the Act even a single person management has to necessarily constitute a governing body in accordance with Rule 15 of the Rules, considering himself/herself as the president of the educational agency. It is in this context that we have to consider the nature of the right to establish an educational agency.
25. As observed by his Lordship Hon'ble Mr. Justice S. Mohan in Unni Krishnana v. State of A.P., , the law recognises that education is always charity and partakes a trust. His Lordship quoted with approval the following from the opinion of Lord Watsom in Commissioners for Special Purposes of Income-Tax v. Pemsel, (1891) AC 531 :
"Charity in its legal sense as understood in the English Law comprises four principal divisions: (1) trusts for the relief of poverty; (2) trusts for the advancement of education; (3) trusts for advancement of religion;(4) and trusts for other purposes beneficial to the community not falling under any of the preceding heads."
26. Whether the right to establish educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India. This is no more res integra. Hon'ble Mr. Justice B.P. Jeevan Reddy in Unnikrishnan's case (supra) while referring to University of Delhi v. Ramnath, , held that impartingeducation has never been treated as a trade or business in India. His Lordship furtherobserved :
"It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business."
27. His Lordship however observed that 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. (See Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, . 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 as to the right of a claimant to manage an educational institution.
28. The learned Government Pleader is fair in not disputing this legal position. Sri Rama Sastry, party-in-person, only submits that after the death of late Subrahmanyam the petitioner was recognised as management and therefore the same position be continued and the fourthrespondent, who is the rival claimant, has to seek a declaration from civil Court.
29. Point No.1 is decided accordingly.
In Re Point Nos.2 and 3:
30. The admitted facts are as follows:
(a) Late Subrahmanyam started school in 1940. The same was admitted to grant-in-aid and till his death he was the management and correspondent of the school.
(b) Before his death he transferred the management of the school to the petitioner due to his old age. The brothers of the petitioner, including the fourth respondent signed a no objection certificate to the effect that they would not raise any objection on the transfer of management to the petitioner.
(c) The DEO by proceedings dated 26-10-1988 approved the transfer of management to the petitioner. After the death of Subrahmanyam on 15-12-1989 from 27-10-1988 till 1-4-1993 the petitioner acted as 'management' as well as 'correspondent' of the school.
(d) In April, 1993 the DEO initially accepted the change in the management of the school, but later modified the same as change of correspondentship.
(e) This shows that the proceedings dated 26-10-1988 of the DEO approving transfer of correspondentship from Subrahmanyam to Rama Sastry was modified but the transfer of management was not changed.
(f) The writ petition, being WP No.7773 of 1993 filed by the petitioner questioning the orders of the DEO were set aside and this Court directed the DEO to conduct enquiry after giving adequate opportunity to the petitioners and others. During the pendency of the writ petition the fourth respondent was acting as correspondent of the school.
(g) After conducting enquiry, the DEO issued impugned proceedings on 14-8-1997 approving the appointment of fourth respondent as manager and correspondent of the school. The order was issued based on the declaration given by the family members of late Subrahmanyam and keeping in view the statements of others.
31. After the death of Subrahmanyam the petitioner was recognised as correspondent of the school. It is not clear whether the DEO recognised transfer or management to the petitioner. However, it does appear from the proceedings dated 2-4-1993 that from 27-10-1988 since the petitioner took over as the manager the department of education recognised the petitioner himself as the management of the school. It is for this reason the DEO issued modified order changing the correspondentship from Rama Sastry to Kantha Rao by proceedings dated 7-4-1993.
32. Further, it is ununderstandable as to how the competent authority i.e., DEO can approve the correspondent/manager of the school without there being a valid appointment by the recognised management of the school. The declarations by the family members as well as the statements recorded by the DEO during the enquiry do not by themselves constitute the proper appointment of the fourth respondent as correspondent of the school. Whether it is valid or not after the death of the founder the petitioner alone was acting as correspondent/manager and was also legally'management of the school'. In effect, the impugned order has resulted in entrustment of management itself to the fourth respondent. As held on point No.1, the DEO is not competent to change the management. Therefore the order passed by the DEO dated 14-8-1997 is unsustainable. For the purpose of recognising the manager/ correspondent as per Section 24 of the Act, the petitioner, who was acting as educational agency has to appoint the correspondent/ manager. The educational authorities have to take a neutral stand and they are not legally correct to change the management from the petitioner to fourth respondent, though the educational authorities are competent to approve the change of management provided there is no serious challenge to such approval from any quarter.
33. Accordingly, I hold that the impugned order insofar as the same changes the management and Correspondentship from petitioner to fourth respondent is unsustainable. The submission of the party-in-person that he was not given adequate opportunity is without any basis. The submission of the learned Counsel for fourth respondent that his client was appointed as correspondent and that there is no change of management cannot be accepted. Admittedly, the fourth respondent is working as a teacher in an aided School and it is not proper to approve him for the post of manager/Correspondent.
34. In this affidavit petitioner's grievance is that he did not receive the notice 'in time'. He did receive the notice and asked for details. As averred by the DEO the petitioner's letter dated 22-7-1997 was not received within the stipulated time. Therefore, it should be held that the petitioner was given adequate opportunity and he ought to have appeared before the Deputy DEO as well as DEO after receiving notice and ought to have placed material before them.
35. Point Nos.2 and 3 answered accordingly.
In Re Point No. 4:
36. The petitioner was recognised by the DEO as the management of the school. Though the proceedings dated 26-10-1988 issued by the DEO is to the effect that the transfer of correspondentship of aided elementary school is approved in favour of the petitioner, it is not denied that form 27-10-1998 to 1-4-1993 the petitioner was discharging the functions as 'management' and also acting as correspondent exercising all powers under the Grant-in-Aid Code as well as various administrative orders. Indeed, it is alleged by the petitioner on 27-6-1988 when late Subrahmanyam had sent an application for transfer of correspondentship he enclosed a no objection certificate signed by five brothers of the petitioner. Be that as it may, till he was removed as correspondent by order dated 7-4-1993 (this order modified earlier order of DEO dated 2-4-1993 approving change of management) the petitioner was functioning as 'management' as well as 'Correspondent'. What was approved by order dated 7-4-1993 by the DEO is change of correspondentship and not management. However, as it is a management by single person for considerations of economic viability and to avoid conflict of decisions generally single person himself would act as management as well as manager. Presumably because of this the petitioner was kept out of the affairs of the school.
37. As already noticed the petitioner approached this Court and filed WP No.7773 of 1993. During the pendency of the Writ Petition, till 16-6-1995 the fourth respondent was correspondent of the school. By that time the fourth respondent was working as teacher in another aided school and unless there are compelling circumstances or reasons, his appointment, as correspondent cannot be said to be in the best interest ofthe school. After this Court disposed of the writ petition directing the DEO to conduct enquiry in accordance with principles of natural justice, the DEO appointed Mandal Educational Officer as Special Officer. After enquiry the DEO issued impugned orders on 14-8-1997. In these proceedings, the DEO approved 'appointment of fourth respondent as manager and correspondent of the school' keeping in view the statements given by 29 persons of the local elite who are interested in the management of the school.
38. The right to establish and manage a school is valuable right and the same in transferable in accordance with the wishes of the founder. Unless there is a nomination by the management of the school, the DEO or any educational authority is not competent to approve appointment of manager except while exercising power under sub-section (3) of Section 24 of the Act. The approval of appointment of fourth respondent as manager is purportedly based on the statements given by 29 persons including the other family members. In my considered opinion, legally it is not permissible for the DEO or any educational authority to approve the appointment of manager/correspondent as nominated by third parties who have no enforceable right. Such enforceable right possibly subject to legality, can only be claimed by the other brothers of the petitioner, who already signed a no objection certificate in 1988. Therefore, the impugned order is wholly without jurisdiction and cannot be sustained. The Act, the Rules or the Grant-in-Aid Code do not confer any power on the DEO to interfere in the inter se disputes regarding management of an educational institution. As rightly contended by the learned Government Pleader for School Education, it is for the competent Civil Court to give a declaration of such right. There are seriously disputed questions of fact as to tampering the alleged original application made by late Subrahmanyam fortransferring the management and correspondent of the school, regarding no objection certificate issued by the other brothers of the petitioner including the fourth respondent, regarding the statements recorded by the Deputy DEO in the enquiry and other scores of issues. It is also not proper for this Court to record a finding on these issues. It is therefore left open to the fourth respondent or the petitioner or any of the legal heirs of late Subrahmanyam to approach the civil Court and seek appropriate relief. The civil Court shall have to decide the controversy without being influenced by any of the findings and observations made herein above.
39. The question however remains as to who should be entrusted with the management till the dispute between the petitioner and the fourth respondent and others is resolved in accordance with law. Till he was removed as correspondent by order dated 7-4-1993, the petitioner was acting as management and manager for about five years after the death of Subrahmanyam. As I have already held that even a single person school has to follow the Rules issued in G.O.Ms.No.1 dated 1-1-1994 especially Rule 15, the interest of the institution and justice would be served by entrusting the management to the petitioner. However, this is subject to the condition that the management of the school, i.e., the petitioner, shall constitute a governing body of the school in accordance with Rule 15 (for this purpose the petitioner shall be treated as President of the educational agency as well as correspondent/manager) within a period of one week of taking charge. This is subject to further direction that the DEO shall appoint a Special Officer to advise the governing body and also to exercise financial powers, if any. The petitioner as manager/ correspondent shall follow the decision taken by the governing body under the supervision of the Special Officer, it is also open to the DEO to nominate the fourth respondent orany of the brothers of the petitioner or sister-in-law (widow of Neelakanteswara Rao, brother of petitioner who died) as members of the governing body if they fall within any of the categories mentioned in sub-rule (1) of Rule 15 of the Rules. Further, the fourth respondent is directed to hand over charge of the management/correspondentship to the petitioner immediately within one Week of receipt of the copy of this order.
40. WP No.4866 of 1999 seeking writ of mandamus for maintenance of grant from 1-4-1978 to 31-3-1999 is disposed of recording submission of the learned Government Pleader that for the years 1997-98 and 1998-99 the school sanctioned and paid maintenance grant in accordance with G.O.Ms.No.320 dated 16-9-1994. If any grant is not paid, it is open to the governing body to request the DEO, which shall be considered in accordance with law. In regard to WP No.3429 of 2000 it is not denied that the petitioner was also a member of the selection committee and the selections were already approved and selectees joined as teachers. It is not proper to issue any direction in the absence of teachers as parties to these proceedings. Therefore, WP No.3429 of 2000 is dismissed.
41. The other writ petition, being WP No.9496 of 2000 is disposed of directing DEO to conduct enquiry into the matter of shifting the school by the fourth respondent into a rented building. There is force in the submission of Party-in-Person that when there is a building owned by management there is no necessity to shift it to a rented building. If the DEO finds that the building owned by the management is sufficient to accommodate the strength of the school the DEO shall take appropriate steps for reshifting the school from rented school to original school building immediately. In any enquiry that may be conducted by the DEO it is only appropriate that the petitioner and the fourth respondent and teachers maybe given an opportunity to make representation in the matter and the views of the governing body shall be taken intoconsideration.
42. In the result, all the writ petitions are disposed of as above. The DEO is directed to implement the directions within a period of two weeks from the date of receipt of this order. There shall no order as to costs.