Andhra HC (Pre-Telangana)
Netaji Memorial Educational ... vs Counsel For The on 30 July, 2013
Author: K.G. Shankar
Bench: K.G. Shankar
HON'BLE SRI JUSTICE K.G. SHANKAR
Writ Petition Nos.9503 of 2005
DATED:30-07-2013
Netaji Memorial Educational Society,Vijayawada, rep.by its Secretary and
Correspondent,Sri K. Chalapathi Rao... Petitioner
AND
The Government of Andhra Pradesh,rep. by its Prl. Secretary, School
Education,Secretariat, Hyderabad, and 3 others .. Respondents
Counsel for the petitioners: Sri N. Subba Rao
Sri P.V.S.S.S. Rama Rao
Counsel for the Respondents: Govt.Pleader for School Education
<Gist:
>Head Note:
?Cases referred:
1. (2011) 9 SCC 613
2. (1995) 4 SCC 507
3. (2012) 6 SCC 1
HON'BLE SRI JUSTICE K.G. SHANKAR
Writ Petition Nos.9503 of 2005, 7055 of 2006,
23292 of 2010 and 22580 of 2010
COMMON ORDER:
This batch of writ petitions is disposed of through this common order, as the same question is involved in all these writ petitions.
2. The petitioners in these cases are the management of private schools. They seek for a Writ of Mandamus to declare that Memo bearing No.12080/ COSC/A2/2004-4, dated 20.10.2004 issued by the first respondent is illegal and arbitrary and violative of Articles 14, 19 and 45 of the Constitution of India, that the norms fixed for staffing pattern for primary schools through G.O.Ms.No.39, Education, dated 03.05.2002 is irrational, arbitrary and detrimental to the interest of the students, that norms issued through G.O.Ms.No.103, dated 05.08.2005 is violative of Article 19 (1)(g) and contrary to Sections 46 and 99 (2) of the Andhra Pradesh Education Act, 1982 (Education Act, for short) and Rule 10 (17) of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (1993 Rules, for short) and consequently to direct the respondents to accord permission to the members of the first petitioner-association to fill up the vacant aided posts in the interest of imparting better education in the private schools.
3. The petitioners, however, confined their claim to Memo No.12080/COSC/A2/2004-04, dated 20.10.2004 (the impugned Memo, for short) issued by the Education Department regarding the ban after creating or filling up of existing vacancies in the private educational institutions except with the prior authorization of the Government .
4. Extensive arguments were advanced by both sides. The petitioners contended that the impugned order is violative of Article 21-A as well as Article 19 (1)(g) of the Constitution of India and Section 46 of the Education Act. The relevant portion of the Memo is extracted for easy reference and for further discussion. The Memo reads:
"The attention of the Commissioner and Director of School Education, A.P., Hyderabad is invited to the reference cited and he is informed that the Point No.17 of the Minutes of the High Level Meeting shall be replaced with the following:
No new posts of Grant-in-Aid would be created and the existing vacancies will also not be filled up, except what has been specifically authorized since there is a General ban on recruitment except for the posts, for which permission was specifically grant by the Government.
This may please be acknowledged."
5. It may be noticed that the impugned Memo was issued by the Principal Secretary to Government School Education pursuant to the minutes of the High Level Meeting conducted by the Chief Minister on 08.10.2004 at 3.30 p.m. Point No.17 of High Level Meeting is also extracted below:
"17. The necessary of continuance of grant-in-aid posts was discussed in detail. It was suggested by Secretary (Services) that it may not be expedient to wind up the posts which are already in existence, simply for the reason as some of these institutions which are getting grant-in-aid are doing better service to the public. The CM said that in that case, there should not be any necessity to create new posts of grant-in-aid."
6. The facts which led all these writ petitions may briefly be stated at the outset.
a) A High Level Meeting was convened by the Chief Minister on 18.10.2004 to discuss various aspects relating to the School Education. Inter alia, it was decided to continue the grant-in-aid posts mainly on the ground that the institutions which are receiving grant-in-aid have been rendering good service to the pubic. However, it was decided that no fresh posts of grant-in-
aid posts should be created.
b) While so, through the impugned Memo, the Principal Secretary issued orders not only banning creation of new grant-in-aid posts but also banning filling up the existing vacancies of grant-in-aid posts except with the prior permission of the Government. When the petitioners' institutions wanted to fill up the vacant grant-in-aid posts, the 4th & 5th respondents did not approve the attempts of the petitioners in filling up of the grant-in-aid vacancies. Aggrieved by the same, the present writ petitions are filed.
7. Sri N. Subba Rao, learned counsel for the some of the petitioners contended that point No.17 of the minutes of the meeting does not suggest ban of filling up of existing vacancies of grant-in-aid posts and that the impugned Memo to the extent of banning filling up of existing vacancies is beyond the power of the Principal Secretary. It is his contention that the impugned Memo is in deviation of Point N.17 of the High Level Meeting.
8. A series of writ petitions were filed questioning the impugned Memo. In those cases, the process of filling up of the existing vacant grant-in-aid posts was commenced before the impugned Memo was issued. When the private institutions tried to fill up the vacancies, either the Regional Joint Director of the School Education of the concerned region or the District Educational Officer of the concerned District declined permission to those petitioners to fill up the vacancies. The writ petitions were allowed by various Benches of this Court holding that the impugned Memo does not apply to cases where the procedure of selection has already commenced. Assailing the same, Government preferred Writ Appeals before a Division Bench of this Court.
9. In Writ Appeal No.1578 of 2005 and batch and some of the writ petitions, the Division Bench passed orders on 29.12.2006 holding that the impugned Memo did not have retrospective operation and that the process of recruitment initiated by the managements of the private schools prior to 20.10.2004 can be continued.
The Division Bench observed in the Government of A.P. v. Sri Sevadas Vidyamandir High School, Adilabad (Writ Appeal No.1578 of 2005 and batch) as under:
"We may have delved deep into the issue whether the note dated 19-10-2004 recorded by Principal Secretary (W & P) and consequential Memo dated 20-10-2004 could be treated as the decision taken in the meeting held on 8-10-2004 under the Chairmanship of the Hon'ble Chief Minister and whether Memo dated 20-10-2004 was issued in accordance with the rules of business framed under Article 166 of the Constitution of India, but in view of our conclusion that the said Memo does not have the effect of stultifying the process of recruitment initiated by the management of the private schools prior to 20-10-2004, we do not consider it necessary to finally pronounce on this issue."
10. The Government which failed the writ appeals preferred Special Leave Petitions before the Supreme Court. Through judgment in Govt. of A.P. v. Sri Sevadas Vidyamandir High School1, the Supreme Court dismissed the Special Leave Petitions. The order of the Division Bench of this Court, consequently, has become final.
11. The learned counsel for the petitioners as well as the learned Government Pleader for School Education placed reliance upon this decision. The learned Government Pleader contended that the impugned Memo was found to be valid, if not directly, by necessary implication by the Division Bench of this Court holding that the impugned Memo has no retrospective effect. His submission is that the Division Bench by necessary implication held that the impugned Memo was valid from the date of the Memo.
12. On the other hand, the learned counsel for the petitioners contended that the Division Bench of this Court did not consider the question of the validity of the impugned Memo.
13. Sri N. Subba Rao drew my attention to the relevant portion of the judgment of the Division Bench of this Court already extracted above. The Division Bench referred to the contention that the impugned Memo was not issued in accordance with the rules of business under Article 166 of the Constitution of India and held that it was not pronouncing any view on that aspect.
The fundamental contention of the learned Government Pleader is that the impugned Memo was found to be valid in view of this pronouncement of the Division Bench.
14. I do not accept the contention of the learned Government Pleader for the reason that the Division Bench in clear terms observed that they did not consider it necessary to finally pronounce on such issue. It is not as though this Court accepted the validity of the impugned Memo when the Division Bench declared that the impugned Memo did not have retrospective operation. It cannot be implied that the Division Bench held that the impugned Memo has prospective operation.
The Doctrine "falls in uno, falls in omnibus" is not applied in India for logical reasons. On the same analogy, I consider that it is not logical to conclude that the impugned Memo was accepted by the Division Bench of this Court to be valid and prospective in its operation. More over, the Division Bench left that question open without considering the same.
15. The learned Government Pleader contended that the judgment of the Division Bench operates as constructive res judicata. The principles of res judicata apply when a valid pronouncement is made in respect of the controversy. Where the Division Bench categorically denied making any comments regarding the controversy, it cannot be said that the controversy has been resolved by the Court for it to operate as res judicata.
16. Regarding constructive res judicata, what a claimant ought to have raised before a Court, if not raised before the Court, would be considered to have been raised and negatived by the Court operating as constructive res judicata in a subsequent lis. Before the Division Bench, it was also urged whether the impugned Memo was not valid. It is the Division Bench which refrained from going into the question of validity of the impugned Memo. Consequently, whether the impugned Memo is valid or otherwise has not been decided by the Division Bench. The question of the decision of the Division Bench operating as res judicata or constructive res judicata for the present batch cases, therefore, does not arise. The contention of the learned Government Pleader that this present writ petitions are barred by res judicata or constructive res judicata, consequently, is negatived.
17. Where the earlier decision did not issue any finding regarding the validity of the impugned Memo and where the earlier decisions of the single Judge of this Court, the Division Bench of this Court and the Supreme Court do not operate either as res judicata or as constructive res judicata for this batch of writ petitions, the claim of the writ petitioners deserve to be considered on merits.
18. Sri N. Subba Rao, learned counsel for the petitioners contended that the impugned Memo is violative of Article 21-A of the Constitution of India. Article 21-A which was brought into the Constitution through 86th amendment in 2002, obligates the State to provide free and compulsory education to all children between age of 6 years and 14 years. One of the modes through which education is important to the children of this group is according permission to private institutions and providing grant-in-aid to such private institutions. Smothering the private institutions by forcing them not to fill up existing vacancies of grant-in-aid posts would certainly restrict these institutions from imparting compulsory education to children freely and effectively.
19. The impugned Memo restricts the private schools from filling up the vacant posts of grant-in-aid vacancies. It is the contention of the learned counsel for the petitioners that the petitioners' schools have no alternative but to leave the vacancies unfilled, so much so, there is shortage of teachers which ultimately affects the career of the students. The learned Government Pleader pointed out that the ban to the impugned Memo is applicable only in respect of aided posts' vacancies and not the unaided posts' vacancies and submitted that if the managements were seriously interested in the welfare of the children, they could have filled up these posts with unaided teaching staff.
20. I am not able to appreciate this contention of the learned Government Pleader. The very scheme of 1993 Rules, passed through G.O.Ms.No.1, Education (P.S.2), dated 01.01.1994 was brought out to enable the private institutions to run their schools effectively charging reasonable fee from the children. It is not open for the Government to claim that despite the impugned Memo, the private schools could have filled up the vacancies with unaided staff. The impugned Memo certainly restricts the right of the private institutions to fill up the vacancies of grant-in-aid posts which ultimately tinkers with Article 21-A of the Constitution of India. Article 21-A creates an obligation on the State to provide free and compulsory education to the children between the age of 6 years and 14 years. In view of Article-45 which obligates the State to provide education till the completion of 6 years of age and in view of Article 21-A which mandates the State to provide free and compulsory education for children between the age of 6 years and 14 years, when the Government is not capable of maintaining institutions to impart education to every child, Government cannot take away the grant-in-aid that was already conferred upon some posts in the schools. What the impugned Memo has been attempting to do is withdrawing the grant-in-aid scheme slowly and step-by-step whenever an employee retired from service. I am afraid that such a step on the part of the Government is violative of Article 21-A of the Constitution of India.
21. Chapter VIII of the Education Act, 1982 deals with grant-in-aid scheme. Section 46 of Education Act empowers the Government to withhold, reduce, or withdraw any grant payable to any educational institution depending upon the efficiency and the financial condition of the institution after according an opportunity to the institution to explain why the grant cannot be withdrawn. Sec.46 (2) envisages that the grant-in-aid can be withheld or reduced or withdrawn in the event the educational institution did not maintain the standards including failing to fulfil the conditions of the grant. It may, however, be noticed that Sec.46 does not speak about a ban, but speaks about withholding, reducing or withdrawing the aid to individual institutions.
22. It is the contention of the petitioners that no reason was assigned why a general ban was clamped virtually withholding the grant-in-aid. Sec.46 of Education Act did not contemplate such a general ban.
If the intention of the Government was to ban grant-in-aid scheme, it can be only through legislation by amending the Education Act. Through executive instruction, this virtual ban cannot be imposed against the provisions of Sec.46 of Education Act. I, therefore, consider that the impugned Memo is not in conformity with Sec.46 of Education Act and being an executive instruction, cannot supersede Sec.46 of Education Act.
23. In State of H.P. v. Recognized & Aided Schools Managing Committees2, the Supreme Court considered Rule 45-Q and 45-J of Grants-in-Aid Rules of the Himachal Pradesh and held that imposition of the maximum limit for the disbursement of grant-in-aid to the schools was arbitrary and unjustified. The Supreme Court further observed that the Government was under obligation to provide grants-in-aid to the schools as envisaged under the scheme of 1993 Rules. It is contended by the learned counsel for the petitioners that in the light of the Rules of the State of A.P., the impugned Memo virtually banning the grant-in-aid scheme is bad and is liable to be set aside.
24. The learned counsel for the petitioners also placed reliance upon Society for Unaided Private Schools of Rajasthan v. Union of India3, where the application of Article 21-A of the Constitution was considered exhaustively by the Court. It may be pointed out that Article 21-A of the Constitution provides free and compulsory education to children and Sec.46 of Education Act provides for withdrawing, reducing or withdrawing the grant-in-aid to specific institutions under specific circumstances. Where the Government did not choose to do so, but created a general ban, the contention of the petitioners that such a ban is liable to be declared as against the 1993 Rules, the Education Act and the Constitution is just and reasonable.
25. G.O.Ms.No.1, Education (P.S.2), dated 01.01.1994 created 1993 Rules. Rule 12 inserted sub-rule 3A through G.O.Ms.No.58, Education (SE-PS-I), dated 13.07.2006. Rule 12 (3A) envisages that before filling up of the aided teaching or non-teaching posts, the educational agency shall necessarily obtain clearance from the competent authority to the effect that there are no surplus posts in the concerned district and that if there are suitable surplus candidates, they shall be deployed against such vacancies in accordance with the subject requirements. The Rule further contemplates that the competent authority shall obtain the permission from the Government in its turn before issuing clearance for filling up of any of the aided posts.
26. It is contended by the learned counsel for the petitioners that when Rule 12 (3A) was enacted, it automatically supersedes the impugned Memo passed on 20.10.2004, first because the impugned Memo was an executive instruction whereas the Rule is a Statutory Rule in accordance with the provisions of Education Act and secondly because Rule 12 (3A) is an amendment subsequent to the impugned Memo. I have no reason to disagree with this contention of the learned counsel for the petitioners. Admittedly, executive instructions cannot substitute for subordinate legislation. Added to it, the impugned Memo was not even in terms of Point No.17 of the minutes of the High Level Meeting. Further, when the sub- rule was inserted subsequent to the impugned Memo, it shall be considered that the Government was conscious of the impugned Memo. Consequently, the impugned Memo stands superseded by Rule 12 (3A).
27. The learned Government Pleader inter alia submitted that the ban through the impugned Memo was imposed to prevent institutions from misusing the same. Sri P.V.S.S.S. Rama Rao, learned counsel for some of the petitioners contended that 1993 Rules are not only exhaustive but also stringent and did not allow any bottlenecks for the managements of the private institutions to misuse the scheme of grant-in-aid of posts. He referred to Rule 12 (1) and Rule 12 (2) and submitted that the Rules envisaged that the staff of the institution shall be in accordance with the staffing pattern prescribed by the Government and that the teaching and non-teaching staff shall be recruited through a Staff Selection Committee and not as the concerned institution chooses. He repeated the contention of the learned counsel for the other petitioners that 1993 Rules are Statutory Rules made in exercise of the powers conferred u/s.99 of Education Act and that the Rules, therefore, are liable to be applied strictly. He further submitted that even the Rule of Reservation has been taken care by Rule 12 (6) of the Rules and that on the face of such Rules, the general ban through the impugned Memo is invalid. He pointed out that grants-in-aid posts are created u/s.3 (2) of the Andhra Pradesh Private Educational Institutions Grant-in-Aid (Regulation) Act, 1988 and that after fixing the cadre strength and after providing grant-in-aid, Government is not entitled to take away the same by clamping ban through executive instructions.
28. The scheme envisaged grant-in-aid through the Grant-in-Aid Act provides norms. I am afraid that the benefit of grant-in-aid conferred upon the institutions cannot be taken away by banning the filling up of grant-in-aid posts through the impugned Memo. The ban usually is a temporary affair, but the ban created under the impugned Memo would appear to be a perpetual ban which is not permissible without amendment of the Act and the Rules.
29. Sri P.V.S.S.S. Rama Rao also contended that the discrimination between private institutions and government institutions with reference to grant-in-aid is violative of Article 14 of the Constitution of India. Admittedly, Government has been conducting District Selection Committee (DSC) examination every year. The candidates selected through DSCs have been appointed in Mandal Parishad Schools and Zilla Parishad Schools, which also receive grants-in-aid. It is the contention of the learned counsel for the petitioners that filling up of the grant-in-aid posts in Mandal Parishad and Zilla Parishad Schools through Selection of DSC and banning of filling up of the grant-in-aid posts in private institutions is violative of Article 14 of the Constitution of India.
30. Ordinarily, the Government institutions cannot be compared with private institutions and lack of parity between the organs of the two institutions cannot be treated as an unreasonable clarification. However, in the present case, admittedly, Mandal Parishad and Zilla Parishad Schools also have been receiving grant-in-aid. Consequently, so far as grant-in-aid schemes are concerned, those schools stand on the same footing as private institutions. Filling up of the grant-in-aid pots in such schools and restraining the private institutions from filling up of the grant-in-aid vacancies at the same time is indeed unreasonable discrimination prohibited by Article 14 of the Constitution of India. Even on this count, I agree with the contention of the learned counsel for the petitioners that the impugned Memo is violative of Article 14 of the Constitution of India.
31. The learned Government Pleader placed reliance upon G.O.Ms.No.40, Education (SC-PS.1) Department, dated 18.06.2013 which deals with the rationalization of services of aided staff in private aided schools and submitted that through para 12 of G.O.Ms.No.40, the ban imposed by the impugned Memo stood relaxed to the extent of transfers and promotions required for the rationalization exercise. However, this G.O. has no relevance for the present case for the reason that the petitioners are questioning the ban to fill up the vacant grant-in-aid posts and not questioning the ban regarding the promotions. I, therefore, do not consider it appropriate to mould the relief in the present batch of writ petitions in terms of G.O.Ms.No.40.
32. For the above mentioned reasons, I am constrained to hold that the impugned Memo is violative of Articles 14, Article 21-A and Article 45 of the Indian Constitution and is also violative of 1993 Rules which are statutory in nature and hold that the impugned Memo is illegal and unenforceable.
33. Accordingly, these writ petitions are allowed declaring that the impugned Memo in memo No.12080/COSE/A2/2004-4, issued by the Principal Secretary to Government, School Education, dated 20.10.2004 (first respondent) is illegal, arbitrary and violative of Articles 14, 21-A and 45 of the Constitution of India and direct the respondents to accord permission to the petitioners institutions to fill up the vacant grant-in-aid posts in accordance with the Rules. The petitioners have not agitated about the other reliefs sought for and the same are, consequently, not granted. There shall, however, be no order as to costs.
_________________ K.G. SHANKAR, J Date: 30.07.2013