Andhra HC (Pre-Telangana)
Diddi Rambabu vs Principal, Hyderabad Public School, ... on 1 May, 1998
Equivalent citations: 1998(3)ALD775, 1998(3)ALT310
ORDER
1. All these four writ petitions are inter connected and the subject-matter is one and the same in all these writ petitions. Hence they are being disposed of by a common judgment.
2. Here are a set of persons claiming to be the respectable persons in the society who could become members of the General Body of the Hyderabad Public School Society from time to time as per the revised bye-laws of the society as approved by the Government in G.O. Ms. No.2713, dated 20-10-1965 wherein the General Body of the society was constituted apart from the Board of Governors to fulfil the requirements of Indian Public Schools Conference that the school seeking for affiliation from the Conference should have a scheme of management, but have no respect for law and they could successfully frustrate the constitutional mandate as envisaged under Article 15(4) of the Constitution of India intended to bring the socially and educationally backward classes of citizens to the main stream of the society by affirmative action like reservations in educational institutions etc. for long 20 years, inspite of specific orders of the Government in G.O. Ms. No.697, dated 26-7-79, while implementing rule of reservation in favour of Scheduled Castes and Scheduled Tribes as directed in the the said G.O. Apart from these reservations were also made in favour of the children of the staff, old students, brothers of old students and children of the staff working in the local bodies under whom the school authorities are working. I have no manner of doubt that these persons having secured membership of the society and because of their proximity to the political bigwigs, the governmental representatives meekly surrendered to them and most of them did not evince any interest in the administration of the affairs of the school and it has now reached a stage that the Governmental representatives are under the impression that they are on the Board of Governors at the mercy of these individuals and they have not only became willing partners in committing the illegalities by these individuals but also went to the extent of swearing to false affidavits supporting the illegal activities of these individuals, as and when some of the aggrieved persons approached the Courts, quite contrary to the documentary evidence, depending upon the social background of the learned Judge before whom the case is posted and succeeded in not implementing the rule of reservation in favour of the backward class students for over two decades. But when their illegal activities came to the force in the year 1988 they have not only tried to set up title to the school properties but also started claiming that the school belongs to the society and the Government has nothing to do with the school and tried to amend the bye-laws of the Society with a view to takeover the administration of the schools which was till then vested in the Board of Governors, majority of whom arc governmental representatives. Having come to know of the drastic changes brought in the bye-laws of the Society by these individuals, the Secretary to Government, Education Department, in his letter dated 3-2-1988 addressed to the Inspector General of Registration and Stamps, requested him not to revise or incorporate any changes in the bye-laws suggested by the General Body without the knowledge and approval of the Government as public interest is involved. Questioning the said letter the Society filed Writ Petition No.5528/1988 and obtained interim stay of that letter. In these circumstances the then Government headed by Sri N.T. Rama Rao passed legislation in Bill No.34 of 1989 to divest these respectable persons from the membership of the Society after obtaining the permission of the Ministry of Human Resources Development, Government of India, in File No.19/2/89/ Schools/1, dated 1-5-1989 which is as hereunder:
"The undersigned is directed to refer to Ministry of Home Affairs-O. M.No. 16-2-89-Judl. dated 13th January, 1989 regarding the Hyderabad Public School (Taking over of Management) Bill, 1988.
2. Ministry of Human Resources Development (Department of Education have no objection to accord approval to the introduction of the proposed Bill in the State Legislature of Andhra Pradesh and the above concurrence is based on the understanding that the Managing Body for the School will be set up within 3 months of the legislation coming into effect."
3. But before the Bill received the assent of the Governor there is a change in the Government and the then Chief Minister Dr. M. Chenna Reddy withdrew the Bill on the assurance given by the society to restore status quo ante. In other words, restoration of the management of the affairs of the Society to the Board of Governors and whose strength will be 16 and headed by the Secretary-In-charge, School Education who are governmental representatives was assured. Before the above decision was taken, it is worthwhile to note the reply of Dr. M. Chenna Reddy, the then Chief Minister on the floor of the Assembly on 30-3-1990. The Honourable Chief Minister tried to give a clean chit to these individuals by throwing the blame on the Principal. He further stated that "during the last session of this House, after the Honourable members have all agreed for the take over opined when the Education Secretary was functioning as the Chairman for it, all the matters went on smoothly during his tenure, we want to get the present situation to that state of affairs, I assure the members that we will bring the situation to its normalcy after this month that is in the next academic year. ....... If it is not possible the Government will not go back from taking over the management of these public schools. However, we will try once to set it right to function smoothly.........
As in the previous occasion we are thinking of appointing a Government Official as the Chairman to look after the affairs of the Institution effectively and to see that the Principal is not having any connections with the affairs of the institution. We will consider this matter legally and constitutionally in pursuance of the Court cases. If it is necessary to bring a Bill, you arc aware that even if the House is not in Session we can promulgate an ordinance. That difficulty is not there."
4. Intact, most of the records of the society are not traceable, as and when writ petitions are filed against the Society the officers started filing sworn affidavits stating that the Government has nothing to do with the school and the same is a private school run by an independent society registered under the A.P. (TA) Societies Registration Act (Act No. 1 of 1350 Fasli). I do not know how such statements were made by the responsible officers without verifying the records. I am unable to visualise the compelling reasons for swearing to irresponsible affidavits by responsible officers who arc the custodians of the public property and public trust. With the result, these individuals arc now emboldened to claim the public properties worth hundreds of crores of rupees and the school which was originally started for the education of the children of Jagirdars in the erstwhile Nizam State is now serving the interest of neo rich and neo jagirdars and psudo intellectuals of the present day society. To what extent the claim of these individuals can be sustained in law will be examined in the latter part of the judgment.
5. Regarding the reservations in favour of the backward classes, except in one case i.e., in Writ Petition No.7352 of 1987, this High Court refused to grant cither interim directions or adjudicate the dispute without loss of time in the light of the general importance involved in the matter. With the result the parents who could not secure admission to their wards lost their interest in pursuing the Writ Petitions. In Writ Petition No.7352 of 1987, this Court granted interim directions and in fact an appeal having been filed against the interim order, the society did not press for suspension of that order. Ultimately by the time the Writ Petition came up for final hearing in 1996 the student finished his secondary education and joined Intermediate Class. Hence the Court dismissed the Writ Petition as no cause was surviving for adjudication. With the result the students belonging to backward classes could not get the benefits under G.O.Ms.No.697 dated 26-7-79 with these years.
6. While things stood thus in April 1997 one Mr. Dindi Ram Babu claiming to be the Convenor of the A.P. Youth Congress Committee filed Writ Petition No.8391/97 as public interest litigation questioning the action of the respondent society in not implementing the rule of reservation in favour of the backward classes mainly on the ground that such action violates Articles 14 and 15(4) of the Constitution of India. While the said writ petition is pending, the Society filed Writ Petition No.18304 of 1997 questioning the orders of the Government, dated 26-7-97, wherein the Government directed the Society to implement the rule of reservation and obtain interim stay of the orders. Subsequently both the writ petitions were clubbed together and arguments went on for a long time to secure records in this case.
7. While I was waiting for the documents, called for, the Society filed Writ Petition No.5676 of 1998 questioning the minutes of the meeting of the Board of Governors held on 19-1-1998 as communicated to the members it was shown that rule of reservation was implemented in favour of the Backward Classes, though such a decision was not taken at that meeting and in issuing notification in the newspaper calling for applications from the candidates for admission for the academic year 1997-98. On the ground that even before the controversy with regard to the applicability of the A.P. Education Act could be resolved the President of the Parents Teachers Association of the School filed another Writ Petition No.8362 of 1998. This writ petition seemed to have come up for admission before my learned brother Justice Bilal Nazki on 27-3-1998. His Lordship has given notice on admission and further ordered that in the meantime the respondents may proceed with the selection of the candidates for fresh admission but they shall not declare the results of such selection till the next date of hearing. On 20-4-1998 the matter came up before my learned brother Justice G. Bikshapathy who admitted the writ petition and directed the office to post that writ petition alongwith Writ Petition No. 18304 of 1997 i.e., the first writ petition filed by the society. Likewise the 2nd Writ Petition No.5676 of 1998 filed by the society came up for admission before my learned brother, Justice B. Sudershan Reddy. On 13-4-1998 while admitting the writ petition his Lordship directed the Registry to post the writ petition along with earlier two writ petitions in which judgment was reserved after hearing the arguments. Hence I propose to dispose of all the writ petitions by a common order.
8. From the pleadings and arguments advanced across the bar the following issues arise for consideration in these writ petitions :
1. Whether the Hyderabad Public School is an instrumentality of the State as defined under Article 12 of the Constitution of India or whether it is a private educational institution owned by Hyderabad Public School.
2. Even assuming that the contention of the members of the General Body of the society that the school is a private institution as the same is affiliated to the Indian Public Schools Conference and the students are appearing for ISCE Examination, whether the provisions of A.P. Education Act are applicable or not and whether the State Government is injuncted to compel the society to implement rule of reservation in favour of the socially and educationally backward classes of citizens.
3. Is it open to the society to implement one limb of the G.O. 697 and refuse to implement the other limb of the order.
4. Can the society question the orders issued by the Government ?
5. Whether the reservations that are being implemented by the society in favour of the children of the members of the society, staff, old students, brothers of old students and children of the others working in the local bodies with whom the school authorities are having work, can be sustained in law.
9. For the sake of convenience, firstly, I would like to take up Writ Petition No. 18304/97, filed by the Society, on the basis of conclusions of which the other three writ petitions can be disposed of.
Issue No. 1 :
The case of the Society is that the Jagirdars College that functioned during the rule of erstwhile Nizam was re-organised as Hyderabad Public School in the year 1951. The Hyderabad Public School Society bearing Registration No. 18/1951 registered under Societies Act (Act 1 of 1350 Fasli) is in the management of the affairs of the School and the Government has no control whatsoever over on the administration of the affairs of the School. The School is purely a private and non-commercial organisation and being a member of Indian Public School Conference (hereinafter referred to as TPSC), by virtue of its affiliation, the provisions of A.P. Education Act, cannot be made applicable to it, more so. when the School is not governed by any grant-in-aid scheme of the State Government. Officials of the Government were made members of the Board, because of their experience in the field of education and finance and the same has nothing to do with the governmental power to supervise or administer the affairs of the school.
10. It is also their case that G.O. Ms. No.697, dated 26-7-1979, is applicable only to the Schools recognised as private institutions under Rule 67 of the rules made under A.P. Education Act. Since the School is not a recognised school by the Government, it is not required to follow the said G.O. and they have also given a list of private schools affiliated to IPSC, which are not implementing the rule of reservation. The Counsel for the Society in so many words admitted that if the Court comes to the conclusion that the School is established and owned by the Government, he has no case and he is bound by the orders issued by the Government.
11. The learned Advocate-General supported by Sri A. Ramalingeswara Rao, Counsel appearing for the impleaded respondents strenuously contended that the school is a governmental institution and having run the institutions for some time, the Government decided to develop the institution as a self-supporting institution and registered a society in that regard. As per the by-laws of the Society, the management of the affairs of the school vests in the Board of Governors of whom majority arc the governmental officials. While the land at Begumpet belongs to Government, the land at Ramanthapur belongs to Osmania University and they were given on long term lease at an annual rent of Re. 1/-. The buildings were constructed with the monies of the Government.
12. The General Body of the Society has no role to play and its functions are more advisory in nature. The words "subject to the control of the General Body of the Society and these rules", the Board of Governors shall administer the affairs of the society were incorporated in bye-law No.14(1) of the byelaws of the society in 1965 because of the insistance of ICSE that the school should be run by an autonomous body. On that account, the members of the General Body who might have paid Rs. 100/- as annual subscription and Rs.1,000/- as subscription for life cannot contend that the school alongwith its properties are owned by the society and they can administer the affairs of the school as per their whims and fancies, without the consent and approval of the Government.
13. Further under the bye-laws of the Society the Chairman of the Board of Governors, the Principals of the schools, will be appointed by the Government. All these facts lead to an irresistable conclusion that the Government is having an all-pervasive control over the administration of the affairs of the Society.
14. To appreciate the respective contentions of the parties a reference to the historical background of the school is necessary.
15. As stated supra, most of the original records relating to the Society from all Government offices are not traceable and the Society has not come forward to produce all the records though this Court directed the Society to produce all the records by order dated 2-2-1998. It is only with the help of certain xerox copies of the original orders passed by the Government, that could be picked up from the voluminous papers filed by the Government and from the resolutions of the Board of Governors, the historical background of the school be culled out as hereunder.
16. In the year 1923, Mr. Wakefield, former Secretary to Government, Revenue Department, in the Nizam Government, started Jagirdars College at Hyderabad, exclusively for educating the children of Jagirdars in the former State of Hyderabad at Begumpet. About Ac. 185.00 cents of land was donated by sarfekhes, paigas and acrue milk, for construction of the buildings and play ground, The Nizam Government used to collect 2% as education cess on the net income of Jagirdars and the same was utilised towards expenditure for running the college.
17. From the records available, it is seen that the school is to be managed by Board of Governors comprising Hon'ble Education Member, Hon'ble Finance Member, Hon'ble Revenue Member, 2 Jagirdars (to be selected by the Jagirdars once in every 3 years). Education Secretary, the Director of Public Instruction, the Principal of the Jagirdars College (Secretary). After abolition of the Jagirdar system, the School was taken over by Hyderabad Government and the same was run with the funds of the Government. During that period, the college was renamed as Hyderabad Public School and after two years of management by the Government, the Government has taken a decision that the School should support itself from the fees and boarding charges that arc to be collected from the students and the interest on its investments and it should cease to be a liability on the Government. It is useful to extract the Lr. No.705/P., dated 17th April, 1950, which is as fellow's:
" "No.705/P. Education Secretariat Peshi Branch, Hyderabad Division Dt. 17th April, 1950. HYDERABAD GOVERNMENT. The Private Secretary to Sahibzada Nawab Basalat Jah Bhdr., President, Board of Governors, Jagirdars' College, Hyderabad Dn.,
I am directed to inform you that it has been decided to reconstitute the Jagirdars' College as a public school in the form of a private institution. As such, it may kindly be noted that the school should, hereafter, cease to be a liability of Government and that it should support itself from the fees and boarding charges it may collect and interest on its investments.
In order to give the school a change to build up, Government will be prepared to give a grant-in-aid to the full amount of the cost of teaching staff instead of 2/3 rd only of such cost for the first two years. Further, the finance of the school will be entirely outside the Government account and will be maintained just in the same way as a private aided institution docs.
Sd/-
Sajjad Mirza Secretary, Education 17/4.
18. The Asst. Finance Secretary in his letter No. 1786, dated 12-5-1950 indicated the Government's sanction for reconstitution of Jagirdars' College as Hyderabad Public School. Tire conditions imposed by the Government that are relevant to decide the issue in controversy are that :--
(1) The Hyderabad Public School will be a private institution governed by the Board of Governors under the control of the Government.
(2) The Government decided to give grant-in-aid to the extent of full amount of costs, salaries of the teaching staff and establishment to build up the institution as a self-supporting institution.
(3) After expiry of the two years period, the institution will get grant from Government admissible under grant-in-aid rules for grant-in-aid to educational institutions, operative from time to time.
(4)(a) All the assets of the Jagirdars' College including the arrears of 2% education cess from the Jagirdars, the cash and securities and Jagirdars' College Fund, will be transfered to Hyderabad Public School's account.
(b) the funds of the Hyderabad Public School will remain entirely outside the Government account and will be operated upon by the Board of Governors of the Hyderabad Public School. The accounting audit arrangements from the Hyderabad Public School will be the same as local bodies, (5) The Government shall have the power to nominate the auditor of the school to audit the accounts at the close of every financial year.
(6) The existing buildings and grounds arc the property of the Government. The Hyderabad Public School will continue to make use of the whole estate, with equipment, appliances and additions etc., effected hereafter by the Hyderabad Public School will revert to the Government without any compensation when it ceases to function.
(7) xxxx (8) As per the constitution of the Hyderabad Public School as approved by the Government, the 1st President of the Board will be Shebzada Nawab Jah Bahadur. Mr. K.A. Lateef will be ex-officio Secretary, till the new incumbent takes charges of the post of the Principal.
The expenditure mentioned in item (1) above in the current financial year will be borne by the Government in excess of budget and the same will be included in the next year's budget.
19. In the note appended to the letter, the Secretary to Government, Education Department, was requested kindly to make sure in consultation with legal department as to what action should be taken to transfer the properties to a regularly constituted body. Till the final decision is arrived at in the matter, the clause No.3(11) (N) will be deleted from the constitution of the Hyderabad Public School. Inspite of my best efforts, I could not get a copy of the constitution of the Hyderabad Public School as it existed in the year 1950.
20. Thereafter the Education Secretary in Lr. No.1191/17/56/PS, dated 5-8-1950 forwarded a copy of the above letter and opinion of the Legal Advisor and requested him to place them before the Board of Governors. After ascertaining the view of the Board of Governors, an application for registration of the Society under Act 1 of 1350 Fasli was filed by Boorgula Ramakrishna Rao, the then Education Minister, Government of Hyderabad, Finance Minister, Mr. C. V.S. Rao, Education Secretary, the Director of Public Instruction, Secretary, Commerce & Industry Department, Principals of Nizam College and Hyderabad Public School, one Member of Parliament, Mr. Baqar Ali Mirza, one Retd. Chief Engineer, Mr. Syed Ali Raza, Mr. Mir Akbair Ali Khan, Bar-at-law, and Mr. G.S, Melkote from medical profession.
21. The principal objectives and aims of the society are to establish a residential secondary school known as Hyderabad Public School, open to all without distinction of race, creed, caste or social status etc. The rules of the Society are:
(1) The Board of Governons may from time to time determine the terms and conditions on which another person shall be admitted to the membership of the Society and it shall rest with the Board of Governors, whether any applicant shall or shall not be admitted to membership.
(2) Any person in sympathy with the objects of the society shall be eligible to become a member of the society on payment of annual minimum donation of Rs.100/-.
(3) The application of any person desiring to become a member shall be proposed and seconded by a member of the Board of Governors and on election shall be entitled to all the rights and privileges of a member.
(4) The person admitted to membership, can become a life member by paying of Rs.1,000/-.
(5) The General Management and conduct of the affairs of the Society shall vest in the Board of Governors.
(6) xxxx (7) x x x x (8) (a) To carry on the management of the society and the Hyderabad Public School, hereinafter referred to as "the School".
(b) To recommend to Government the appointment of the Principal, and Vice-Principal of the School on such terms and conditions as they may think fit and proper and to appoint other members of the staff with a salary of over I.G. Rs.250/-.
(c) x x x x
(d) With the permission of Government, to borrow money with or without security to sell, exchange or otherwise dispose of any properties of the society, immovable or movable, for the purpose of the school and the Society, on such terms and conditions as they may think fit and proper.
(e) With the permission of Government, to lease or let any properties of the Society on such terms and conditions as they may think fit and proper.
(f) With the permission of Government, to execute conveyances, transfers, transfers of Government securities, reconveyances, mortgages, leases, bonds and agreements in respect of all property; movable or immovable belonging to the society or to be acquired for the purposes of the Society.
(g) To enter into any agreement with Government for receiving grants-in-aid.
xxxx xxxx
(o) To appoint Committees if necessary to effectively cany out the objects of the school and the Society.
(p) To suggest to Government amendments or alterations in the rules.
(q) To do all such matters as arc not specifically mentioned in these rules in the interest of the good administration of the School and the Society.
xxxx xxxx Accounts:
(14) The Board of Governors shall cause true accounts to be kept of all transactions of the Society and of all sums of money received and expended by them.
xxxx xxxx (18) The Board of Governors shall have the accounts of the School and Society audited once a year, either by a Chartered Accountant or by the Accountant-General of Hyderabad Government by paying such remuneration, if necessary, as they think fit, and pass the audit report.
22. As stated supra, the Society was registered with Regd. No. 18/51 by the Hyderabad Government. From the above it is seen that the control and administration of the school and its properties were entrusted to Board of Governors and there is no General Body of the Society, as is being given the impression now.
23. The Secretary to Government, Education Department in his Proceedings No.59/50/PS, dated 9-8-1951, forwarded the Memorandum of Association and the rules of the Society sanctioned by the Government to the Hyderabad Public School, Begumpet, and he was directed to take necessary steps for formation of the new Board of Governors. In his next Proceedings No. 1223/49/PS/50, dated 16-8-1950, he communicated the list of Board of Governors constituted by the Government to the Principal, Hyderabad Public School. While continuing Sahibzada Nawab Basalat Jah Bahadur as President, the rest of the members are no other than the persons who signed the Memo of Association. The Registrar of Joint Stock Cos., Hyderabad, in his letter No.3496, dated 24-9-1951, informed the Principal that the Society has been registered, and the certificate of registration may please be obtained from his office at an early date. The Board of Governors in resolution No.3, at their meeting held on 8-8-1953 requested the Government to raise the annual grant from Rs.50,000/- to Rs.80,000/- per year as agreed by the Council of Ministers, atleast for the next three years. In resolution No.4(1), the Board requested the Government that the rent for the School building and ground should be fixed at Re. 1/- per year and it should include all the buildings within the school compound. In another resolution, the Board requested the Government that after termination of the 50 years lease, the School should be allowed to renew the lease for a further period of 50 years. From the minutes of the meeting of the Board of Governors held on 20-2-1958 it is seen that Sri S.B.P. Pattabhi Rama Rao in the capacity of Minister for Education and Dr. Bezawada Gopala Reddy, Minister for Finance were nominated as Chairman and Member of Board of Governors apart from other officials. In Resolution No.5, the Board requested the Government to amend Rule 7 as hereunder:
"The Board of Governors of the Society shall consist of the following x x x:
1. The Minister for Education Chairman, Ex-Officio.
2. The Minister for Finance ...Member
3. The Secretary to Government Education Department ... Member
4. The Director of Public Instruction ... Member
5. The Principal of the School ... Secretary."
24. They have also requested the Government to permit the Principal to nominate not less than 4 and not more than 7 citizens as approved by the Government and among them one should be the parent of the boy studying in the Public School and one should be the old boy of the Jagirdars' College or Public School. While accepting the resignation of Sri P. Jagan Mohan Reddy, on his appointment as a Judge of High Court, Sri D.S. Reddy., Vice-Chanccltor, Osmania University, was recommended by the Board to the Government for appointment in the above vacancy.
25. While things stood thus around 1960 the IPSC seemed to have addressed a letter to the society stating that Articles of the Society do not give autonomous status to the society for administration of its affairs which is a prerequisite as per resolution passed by the Conference and the school would be disaffiliated on that account. The letter of the IPSC was considered by the Board of Governors at its meeting held on 14-9-1960 and passed the following resolution :
"that the Board feels that until and unless the Constitution of the School is altered so as to make the Board fully autonomous the school would not be in position to function as a public school. The Board therefore requests the Government to alter the constitution, make the Board fully autonomous to enable the same to function effectively otherwise the school would be disaffiliated and the responsibility will rest with Government."
As the Chairman expressed his inability to be a party to this resolution the meeting was adjourned as UK members felt that there was no point in proceeding with the agenda unless the question of autonomy of the Board is decided. Again the Board of Governors of the Hyderabad Public School in its meeting held on 9-11-1960 reiterated the decision taken and conveyed to the Government through their resolution taken in the Board's meeting held on 14-9-1960, that unless and until the Board is made fully autonomous to function effectively and to save the Hyderabad Public School from disaffiliation from the Indian Public School Conference which has given its final ultimatum in its meeting held in February, 1960 at Jaipur, we will not be in a position to transact any business pertaining to the school. Again the Chairman made it clear that he is not a party to the resolution. In fact the resolution proposed by Prof. Haroun Khan Sherwani for constitution of a Sub-Committee to revise the constitution of the school on the basis of its autonomy, was not supported by other members. Again the meeting was adjourned as the members refused to transact any business, A copy of G.O. Ms, No.2314, dated 25-7-1962 wherein the bye-laws were revised was placed in the meeting of the Board of Governors held on 10-9-1962. The Board having not satisfied with those rules requested the Chairman to inform the Government that the Board had appointed a Sub-Committee to make proposals for changing the constitution of the school in order to make it an autonomous body and the proposal would be submitted at an early date.
26. The Government having considered the request of the Board of Governors, issued G.O. Ms. No.2713, Education Department, dated 20-10-1965 approving the revised Memorandum of Association and rules of the society with effect from 1-10-1965. While the aims and objectives of the society remained the same, the rules of the society were modified and a general body was brought into existence giving the society autonomous status. Part II-A of the rules deals with general body of the members. The general body of the society shall be composed of patrons, honorary members, life members and ordinary members.
Rule 3: Patrons :
The General Body of the Society is empowered to choose the distinguished persons who rendered distinguished service in the cause of education and also from distinguished persons from other fields of national service as patrons of the society.
Rule 4: Honorary Members:
A member of the Board of Governors who is not the ordinary member of the society shall be Honorary Member of the Society, and shall not be liable to pay any subscription to the society and his membership shall cease on the expiry of his term of office as member of the Board of Governors. The other members of the society who are not Honorary Member shall be the ordinary members.
Rule 5 :
Every application for membership of the society shall be proposed by the original members of the society.
Rule 6:
Every application for membership of the society shall be first placed before the Board of Governors, and in case the Board recommends the admission of the applicant as member, the same will be placed before the General Body of the society. If the general body agrees to admit the said member by a majority of not less than three fourths of the members present and voting such person shall be admitted to the membership of the society.
Rule 7 :
The total number of the members of the society shall not exceed 100.
Rule 8 :
An ordinary member has to pay an annual subscription of one hundred rupees and a member who pays Rs. 1,000/- in one lumpsum will become a life member.
Rules 9 to 11 deal with disqualification of the members with which we arc not concerned.
Rule 12: Board of Governors :
(a) There shall be a Board of Governors for the management of the Hyderabad Public School and any other educational institution established by the Society. It shall consist of the following members:
(1) The Secretary to Government of Andhra Pradesh, Education Department.
(2) The Vice-Chancellor of the Osmania University.
(3) Director of Public Instruction of the Government of Andhra Pradesh.
(4) Principal, Sainik School, Korukonda.
(5) Principal, The Hyderabad Public School, Hyderabad.
(6) One parent of a student studying in the Hyderabad Public School (Other than a teacher of the School) to be elected by the Hyderabad Public School Parent-Teacher Association.
(7) Two members of the Society elected by the General Body of the Society.
(8) Two prominent persons residing in the State of Andhra Pradesh to be coopted by the other members of the Board of Governors.
(b) The Government of Andhra Pradesh will appoint the Chairman and Vice-Chairman of the Board from among the members of the Board. The Principal of the School shall also be the Secretary to the Board of Governors.
13. The term of office of the Board of Governors shall be two years.
14.(1) Subject to the control of the General Body of the Society and subject to these rules, the Board of Governors shall be responsible for the management of the affairs of the Society.
(2) The Board of Governors may appoint a Standing Committee consisting of its members to carry on the routine and day to day affairs of the Society and of the Board.
(3) The Board may make bye-laws specifying the powers exercisable by the Standing Committee and by the Secretary.
III. Office bearers of the Society.
15. The following office bearers of the Society shall be elected by the General Body of the Society at its annual meeting:
President.
Vice-President.
Secretary-Treasurer.
16. Those rules may be altered by the General Body of the Society by passing a special resolution which must be supported by not less than one fifth of total number of members of the Society and by a majority of not less than three fourths of the members present and voting.
17. The Quorum for a meeting of the General Body shall be 10% of the members eligible to vote.
18. A notice of 15 days shall be given for a meeting of the General Body of the Society.
19. Regular accounts of the Society shall be maintained and presented to the General Body. From this it is seen that while two members of the General Body of the Society elected and one parent of a student studying in the school elected by parents' teachers association, the rest of the Board of Governors are Government Officials and they shall cease to be members of the Board of Governors, the moment they are transferred from the post held by them or on completion of the two years term on the Board of Governors. The most important factor to be kept in mind is that the Government reserved the power to appoint the Chairman and Vice-Chairman of the Board from among the members of the Board. As per Rule 13 subject to the control of the General Body of the society and subject to these rules, the Board of Governors shall be responsible for the Management of the affairs of the Society.
27. Every year in the annual General Body Meeting of the Society, the President, Vice-President and the Secretary-cum-Treasurer will be elected from among the members of the Society.
28. The Board of Governors at their meeting held on 22-3-1968 in Resolution No.3 adopted the revised statement of powers of the Board of Governors and of the Principal as shown in Appendix (1) deals with the powers of the Board of Governors which are extracted as under:
Powers of the Board of Governors:
l.(a) The Board shall have all powers which may be necessary or expedient, for the proper management and administration of the School.
(b) The Board of Governors shall function notwithstanding any vacancy in its body and no act or proceeding of the Board shall be invalidated merely by reason of the existence of a vacancy or vacancies among its members or of any defect in the appointment or nomination of any of its members.
(c) Without prejudice to the generality of powers conferred on the Board by clause (a) above, the Board shall have the following powers:
(i) to carry on the management of the Hyderabad Public School hereinafter called 'the School';
(ii) to fix the fees to be collected from the boys of the School;
(iii)to regulate the expenditure and to manage the accounts of the School;
(iv)to recommend to Government the appointment of the Principal of the School on such terms and conditions as they may think fit and proper and to appoint the Bursar, Vice-Principal and the Senior Masters;
(v) to receive Grants, Subscriptions and donations for the purpose of the School, provided that no such subscriptions or donations shall be accepted if they are accompanied by conditions inconsistent or in conflict with the satisfactory running of the School;
(vi) to make rules and regulations for the conduct of meetings and affairs of the Board and to adopt and vary them from time to time;
(vii) to purchase, take on lease or accept as Gift or otherwise, any land which may be necessary or conveient for the purpose of the school and on such terms and conditions as they may think fit and proper;
(viii) to construct, purchase, take on lease or accept as a Gift or otherwise, any building or buildings which may be necessary or suitable for the purposes of the School; and on such terms and conditions as they may think fit and proper;
(ix)to sell, exchange, lease or otherwise dispose of any properties of the School, movable or immovable, on such terms as they may think fit and proper;
(x) to execute conveyances, transfers of Government Securities, re-conveyances, mortgages, leases, bonds and agreements in respect of property, moveable or immovable, belonging to the School or to be acquired for the purposes of the School;
(xi) to raise and borrow money on bonds, mortgages; promissory notes or other obligations or securities founded or based upon all or any of the properties and assets of the School, or without any securities and upon such terms and conditions as they may think fit;
(xii) to invest the funds of the School in or upon such Securities as they may deem fit, and from time to time transpose any investment;
(xiii) to make such Grants as they may think fit for the benefit of any employee or employees of the School;
(xiv) to make such rules and bye-laws as they may from time to time consider to be necessary for regulating the management of the School and the affairs of the Board;
(xv) to delegate all or any of its powers to the Principal of the School or to Standing Committee or subcommittee or to any one or more members of its body or its officers; and (xvi) to do all such other acts and things as may be requisite in order to further the objects of the School:
(d)(i)Accounts :-The Board of Governors shall cause true accounts to be kept of all transactions of the School and of all sums of money received and expended by them and the matters in respect of which such receipts and expenditure take place and of the assets and liabilities of the School. The books of account shall be kept at the office of the School.
7(ii) Funds .--The funds of the School shall be employed solely for the purpose and object of the School;
(iii) Moneys accruing to the School shall be paid into the State Bank of India, or some other Bank to be specified by the Board and shall not be withdrawn except on cheques signed by the Principal in accordance with such financial and accounts rules as are for the time being prescribed by the Board;
(iv)The Board of Governors shall have the accounts of the School and Society audited once a year, by a Chartered Accountant by paying such remuneration, if necessary, as they think fit and pass the audit report.
(e) The Principal of the School shall, subject to the supervision and control of the Board of Governors; be incharge of the current school accounts, short term deposits; saving Bank accounts and cause true accounts to be kept of all sums of money received and expended by him and the matters in respect of which such receipts and expenditure take place.
29. The above will make it abundantly clear that the General Body of the Society is mainly an advisory one and except electing two members out of the General Body members, they have no effective say in the administration of the affairs of the school. This General Body was created for the first time for the society in the year 1965 to comply with the requirements of Indian Public School Conference and the words occurring under Rule 13 "subject to the control of the General Body of the Society and subject to these rules" should be read only to show the functional autonomy to the society in the administration of the affairs of the school in conformity with the requirements insisted by the IPSC. But nothing more could be inferred that the General Body of the Society is having the control over the administration of the affairs of the society and it can take a different view on policy matters than that of the Board of Governors who are no other than the policy makers of the Government in imparting education at various levels.
30. That being the position prevailing, the Government issued G.O. Ms. No.697, Education (F) Department, dated 25-7-1979 reiterating the policy of the Government with regard to the implementation of the rule of reservation in favour of backward classes, Scheduled Castes and Scheduled Tribes and directed the private recognised schools, local bodies and Government schools including the public schools to implement the G.O. But for the reasons best known to the Board of Governors headed by a senior officer of the rank of Secretary to Education Department and a handful of persons in all 17 members of the General Body in the Society, while started implementing the rule of reservation in favour of Scheduled Castes and Scheduled Tribes long after the issuance of G.O. refused to implement the same in favour of the Backward Classes students. With the result the aggrieved parents of the Backward Class students started approaching the Court seeking redressal of their grievance. At the same time the illegalities that are being committed by the society, including making illegal admissions of the students and illegal appointments started coming to light and infect one Mr. T. Bal Reddy and some parents of the students studying in the school filed a Writ Petition No.13207/1989 for issuance of quo warranto against one Mr. O.P. Pathak, Principal, Hyderabad Public School, Ramanthapur, by contending that he does not possess the qualifications to hold the post of Principal. In the affidavit filed in support of this petition, several illegalities committed by Principal, Hyderabad Public School at Ramanthapur, in collusion with the members of General Body of the Society were reduced to writing. At the same time a rift has been developed between the General Body members of the Society and the Parent Teachers Association. With the result the President of the Parent Teachers Association submitting representations against the illegal activities of these handful of persons who are trying to knock away the public properties. In these circumstances, these individuals prepared a master plan to take over the administration of the school by divesting the Governmental officials of the positions held by them.
31. Ultimately in the meeting of the society held on 24-8-1987 one Mr. Ranga Rao submitted a note on the amendment of the bye-laws and Sub-Committee was asked to go through the amendments and report back to society. At the meeting held on 9-9-1997 they proposed to completely change the bye-laws of the society, the basic structure of the society and altered the composition of the Board of Governors where the General Body members gained supremacy and control over the administration of the affairs of the society and confirmed the changes in the bye-laws in the meeting held on 18-12-1987. Having come to know of the sinster move of these individuals, the Government addressed a letter No.356/ SSE.2/88, dated 3-2-1988 to the Inspector-General of Registration and Stamps not to revise or incorporate any changes in the bye-laws of the society, as proposed by the General Body of the Society. Thereafter the Government introduced the Legislative Assembly Bill No.34 of 1989 on 13-9-1988 to take over the management of the society and after its adoptation the Bill was sent to the Governor for his consent. But the Governor seemed to have returned the Bill without signing it by raising certain doubts. While this is under active consideration of the Government, there is a change in the Ministry and from the note file it is seen that these individuals met Dr. M. Chenna Reddy, the then Chief Minister on 25-4-1990 and agreed to restore status quo as it existed prior to the proposed amendment of the bye-laws and as per the understanding reached in the said meeting the Secretary, in-charge of the School Education will be the Chairman of the Governing Body in which there will be 16 members as desired by the then Chief Minister. This fact itself will prove beyond doubt that the Society accepted the supremacy of the Government in running the affairs of the School and they are estopped from contending that the Government has nothing to do with the administration Schools.
32. Ultimately the General Body of the Society at its meeting held on 30-5-1990 restored the old bye-laws of the society and the composition of the Board of Governors was slightly changed. The relevant bye-laws dealing with the powers and functions of the office bearers of the Society arc extracted hereunder:
Rule 14(g): deals with powers and functions of the Office Bearers which is as follows:
Powers and junctions of the office bearers :
1. President : The functions of the President are as follows :
The President shall be the Head of the Society and shall exercise the following powers:
(i) shall preside over the meetings of the Managing Committee.
(ii) shall usually preside over all the meetings of the society.
(iii) shall have the right to exercise a casting vote.
(iv) shall have power to call for extraordinary General Body Meeting, if such meeting is for the purpose of changing bye-laws at the request of the Board of Governors.
2. Vice President:
In the absence of the President, the Vice-president shall carry out the functions of the President and shall assist the President in matter entrusted to him.
3. Duties of the Secretary-cum-Treasurer:
The duties of the Secretary-cum-Treasurer are as follows:
(i) shall supervise all the office work of the society and shall attend the routine correspondence, but in the matter of special and important nature, obtain the approval of the President.
(ii) shall issue notice to the members in accordance with the rules for holding the meetings.
(iii) shall place important matters before the Managing Committee for a decision.
(iv) shall specify the nature, fix time and place of the meeting with the approval of the President.
(v) it shall likewise be the duty of the Secretary-cum-Treasurer to convene the extraordinary General Body Meeting within seven days of the receipt of a written requisition made by atleast 1 -3 or 10 members of the General Body whichever is less.
(vi) shall collect subscription from the members and issue receipts.
(vii) shall disburse the payments provided no single item of such expenditure shall exceed Rs. 1000/- at any time.
(viii) shall submit the accounts to the Managing Committee at the end of every month.
(ix) shall have the power to keep the money, not exceeding Rs. 100/- in his custody. The amount in excess of Rs.100/- shall be deposited in the Bank in the name of the Society and shall be operated upon by any two of the Office Bearers i.e., President, Vice-President, Secretary-cum-Treasurer. The Managing Committee may authorise any two of the Office Bearers to operate the Bank Account in case of non-availability of any Office Bearer aforementioned.
(h) Quorum:
The quorum of the Managing Committee shall be 5 of which atleast two shall be non-office bearers. Where no quorum is present at the meeting within half an hour of the appointed time of the meeting, it shall stand adjourned. For the adjourned meeting no quorum shall be required.
14.(B) Ordinary General Body Meeting:
The Ordinary General Body Meeting shall be convened at least once in a year; ordinarily in the month of July to:
(i) approve the annual Budget.
(ii) Approve the Audited statement of Accounts and appoint auditors for the ensuiring year and fix his remuneration
(iii) Sanction the Budget
(iv) Consider resolutions, if any
(v) Elect the Managing Committee, if necessary
(vi) Elect the Members of the Governing Body, if necessary.
(vii) Transact any other business
15. With the prior approval of the Government, the rules may be altered by the General Body of the Society by passing a special resolution which must be supported by not less than one fifth of the total number of the society and by a majority of not less than two thirds of the Members present and voting and confirmed by two thirds of the Members present at the second special meeting.
32. From this it is seen that the functions of the General Body of the society are clearly enumerated in the bye-laws of the society. As a matter of fact the powers that can be exercised by the office bearers of the General Body and members have nothing to do with the administration of the affairs of the school, more so in policy matters relating to the curriculum, admissions, appointment of the teaching staff etc. The General Body of the society cannot usurp the powers which are not vested in it and they have to act within the parametres specified in the bye-laws. From the above factual narration of the historical background of the school it is seen that after the abolition of the Jagirdari system the college was taken over by the Government and after re-organising the same as the public school the erstwhile Hyderabad Government way back in 3 950 has taken a policy decision to develop the school as a self supporting school in the form of a private institution. In that direction the Government got the society registered with Registration No. 18 of 1951 by no other than the former Education Minister, his other cabinet colleagues apart from the department officials filed an application for registration of the society. It is only to satisfy the requirements of the Indian public schools conference for the first time, apart from the Board of Governors, a General Body was created to confer functional autonomy for the administration of the affairs of the school. In the meeting of the Board of Governors held on 22-3-1968 the Board adopted the revised statement of the powers of the Board of Governors and of the principal which are explicit without leaving any doubt about the supremacy of the Board of Governors in administering the affairs of the school and the General body is a figurehead of the society without any say in the affairs of the school.
33. Further these individuals, in the meeting held with the then Chief Minister on 25-4-1990 having conceded the supremacy of the Government in the management of the affairs of the schools agreed to restore status quo ante. Accordingly, in the General Body meeting held on 30-5-90 the original bye-laws of the society with slight modifications were restored. As per the new bye-laws of the society, the Secretary, Education Department, dealing with school education shall be the Chairman of the Board of Governors. Under Rule 12(d) and (e) the Board of Governors arc empowered to appoint the Principals of the schools, full time Secretary and Administrative Officer, with the prior approval of the Government of Andhra Pradesh.
34. After new bye-laws came into force one Mr. T.D. Prasad who was working as Joint Director, Adult Education, was appointed as full time Secretary of the Board of Governors-cum-Administrative Officer by the Government by G.O.Ms.No.135 Education (Prog.) Dept, dated 21-6-90.
35. Coming to the lands and buildings occupied by the public schools both at Begumpet and Ramanthapur, as per the letter of the Finance Secretary dated 12-5-50 the Government agreed to allow the public school to use the buildings and ground belonging to the Government, subject to the conditions that they shall revert back to the Government including any additions made by the school without any compensation when it ceases to function. Pursuant to the above decision, the Cabinet seemed to have taken a decision to lease out the properties initially for a period of fifty years, at an annual rent of Rs.1/-. Though the decisions is not there in the records, the same is reflected in the Resolution No.4(2) of the Board of Governors at their meeting held on 8-8-1953 to the effect that at the termination of the fifty years of lease period of the grounds and the buildings the school should be allowed to renew the lease for a further period of fifty years if it wishes to do so. The Board of Governors at their meeting held on 4-5-78 in Resolution No.4 expressed satisfaction for according approval for the extension of the lease of the buildings and lands for the balance period of forty years. At the same time they requested the principal to write to the Government for sanction of grant in aid for the maintenance of the school building.
36. The Government after formation of the society leased out the buildings and ground initially for a period of 10 years w.e.f. 15-6-1954 on payment of nominal rent of Rs.1/- per annum. Though the said lease was extended from time to time vide G.O.Ms.No.39 dated 3-1-64, G.O.Ms.No.565, dated 28-2-1964 formal lease deeds seemed to have not been executed, and G.O.Ms.No.202 dated 22-12-78 in supersession of the above G.Os the lease was extended retrospectively for the balance period of 40 years from 15-6-64. In terms of the said G.O. a regular base deed was executed on 31st December 1981 by the Principal, H.P.S. (B) on behalf of the Chairman and Board of Governors in favour of the Government. The lease is subsisting upto the year 2004.
37. Coming to the lands occupied by the public school at Ramanthapur, the Osmania University Syndicate at its 167th meeting held on 9-5-72 considered the request of the Chairman, Board of Governors of Hyderabad Public School for allotment of the land belonging to the Osmania University for construction of the buildings, hostel and for playground etc. for the School to be started there and resolved to allot an extent of Ac.20.00 of land to Hyderabad Public School on lease basis, and the same was approved by the Government vide G.O.Ms.No.584, Education Department, dated 20-1-73. The Principal of the Public School once again addressed a letter dated 1-4-73 requesting the Osmania University to allot atleast Ac.20.00 more acres of land to re-draw the layout plan and finalise the same so that the construction of the buildings could be started. The Osmania University Syndicate at its 182 meeting held on 21 -4-73 acceded to the request of the Public School. But from the record available it cannot be said that the Government approved the action of the University in allotting another Ac.20.00 of land adjacent to the land that was already made available to the school. The terms and conditions of the allotment of the land are not made available to the Court. But from the material papers filed by the Society it is seen that the Principal of Hyderabad Public School paid Rs.780/- towards lease amount through cheque dated 6-2-92 for the period from 9-5-72 to 21-4-92 which works out Rs.1/-per annum per acre under his covering letter dated 7-2-92.
38. One of the allegations made against the members of the society is that they have allowed encroachments in the land belonging to the Public School at Begumpet and the Government called for a report from the Director of Survey and Settlement and Land Records. The officer concerned submitted his report after demarcating the land belonging to the Public School. In para (4) of the report, it was clearly stated that the State Manager of the school was not having any record pertaining to the properties of the school duly showing the boundaries. In para (5) of the report it is stated that 250 Pucca houses were constructed by naming the locality as Indira Gandhi colony in an extent of Ac.3.06 guntas of land situate in S.No.57 of Bahaloolkhanuda village about 10 years back. Ac.0.16 guntas of the land in T.S.No.1 of Block B of Ward No.95 of Begumpet village was effected by the road widening. Ac.0.13 guntas in S.No. 147/2 of Begumpet village was covered by Hindu Grave yard. It is brought to tight that a Temple locally called as 'Katla Maisamma Mahalakshmi Devasthanam' was built in the limits of the school land in an extent of 340 Sq.metres. It is also stated that an extent of Ac.19.14 guntas of land in S.Nos.58 to 62 of Bahaloolkhanguda village and an area of Ac.4.17 guntas in S.No.195 of Khairatabad village was kept fallow and the Hyderabad Public School authorities are auctioning this area every year for grazing purpose.
39. Learned Counsel for the society filed 10A -1 Adangal with regard to the lands on which the Begumpet Public School is located. In both the columns relating to pattedar and occupier it is shown as if the land and buildings belong to the Public School.
40. Coming to the financial assistance received by these schools, in the courier filed in Writ Petition No.8362/1998, which is an exhaustive document with regard to the case of the Government, it is seen that after the Jagirdars' College was renamed as Hyderabad Public School, the Government spent Rs.26.46 lakhs for construction of the pre-primary, primary school, science block and additional rooms and another Rs.50 lakhs was released for providing furniture and science equipment etc. As the repairs are being attended by the Public Works Department, the Government exempted the school from payment of centage charges. As far as the Ranianthapur Public School is concerned the Government sanctioned a loan of Rs.54 lakhs repayable without interest and as on today the society paid Rs.43.6 lakhs having a balance of Rs. 10.4 lakhs. Further the Government was releasing yearly grants of Rs.50,000/- as grant in aid to the Hyderabad Public School. That apart the Government issued G.O.Ms.No.3239, Education Department, dated 27-12-65 for carrying out repairs and maintenance of the main wall, roof, and maintenance of the roads of the school, re-laying of sewerage pipes and construction of compound wall or fencing to be done at Government cost and directed the Education Department to make available the necessary funds.
41. From the audit report of the Senior Deputy Accountant General from 10-5-1976 to 22-5-1976 it is seen that yearly grant of Rs.50,000/- is being given every year for payment of salaries to the staff of the institution. Having reviewed the financial position observed that the school is having sufficient funds in investments and there is no necessity for Goverment grant. It is doubtful whether the particulars of grant in aid are exhaustive as records have not been properly maintained by the Government and most of them are not traceable. Apart from the amounts that are being collected towards fees by these public schools, Government placed properties worth hundreds of crores of rupees, as per the present day market value, apart from contributing huge amounts for construction of the buildings, for maintenance of the buildings apart from the amounts released for payment of the salaries etc.
42. In the counter filed in W.P.No.8362/98 the financial grant extended by the Government to some extent was given in a tabular form and same is re-produced here under.
Sl. No. Year G.O. No. & Date Amount Rs. in lakhs Purpose
01. 1954-55 to 1964-65 Lr.No.2041/487/ 23/J1 Edn. dt-25-8-54 7.30 Salaries
02. 1962-63 G.O.Ms. No. 554, Edn,dt.8-3-63 2.00 Completion of Science Block.
03. 1963-64 G.O. Ms. No. 3628,Edn. dt.
131263 2.00 Construction of addtional buildings.
04. 1963-64 G.O. Ms. No. 645, Edn, Dt. 16-12-63 2.00 Construction of additional buildings.
05. 1964-65 G.O.Ms.No.645 Edn, dt. 10-3-65 2.00 Construction of additional buildings.
06. 1965-66 G.O.Ms. No. 825 Edn, dt. 10-3-65 0.40 Purchase of Science Equipment.
07. 1965-66 G.O. Ms. No. 645 Edn, dt. 10-3-66 2.00 Construction of addtional buildings.
08. 1965-66 E.O. Ms. No 2251 Edn. dt. 18-8-85 0.50 Salaries
09. 1966-67 G.O.Ms. No. 278 Edn, dt. 17-2-67 & G.O.Ms.No.447 Edn, dt. 31-3-67 & G.O. Ms. No. 1331 Edn, dt. 31-3-67 1.50 Construction of Science Block
10. 1966-67 GO.Ms.No.101 Edn, dt. 20-1-67 0.96 Construction of Pre-primary
11. 1966-67 Govt. Memo No. 133/ CC2/66-2, dt 24-6-67 & Govt. No. 1341/CC2/67-1 Dt. 17-3-67 0.10 Eqipment and furniture for pre-primary dasses.
12. 1967-68 G.O. Ms No. 442 Edn, dt. 1-3-68 & G.O. Ms. No. 871 Edn. dt. 14-4-69 2.00 Comptetion of Science Building
13. 1979-80 G.O. Ms. No. 132 Edn, dt. 25-2-80 0.50 Annual Grant
14. 1980-81 G.O. Ms. No 296 Edn, dt. 13-3-81 0.50 Annual Grant
15. 1981-82 G.O. Ms. No. 295 Edn, dt. 23-3-82 6.00 Construction of Building
16. 1981-82 G.O. Ms. No. 214 Edn, dt. 23-3-82 6.00 Construction of Building
17. 1981-82 G.O.Ms. No. 304 Edn. dt. 22-3-82 0.50 Annual Grant
18. 1981-82 G.O. Ms. No. 305 Edn, dt. 23-3-82 0.45 Scholarships Grants released towards purchase of equipment and furniture.
19. 196566 G.O.Ms.No.825 Edn. dt.26-3-66 0.40 Purchase of sciencs equipment.
Amounts released to HPS Ramanthapur
20. 1975-76 G.O.Ms.No 983 Edn. dt.
19-10-76 2.00 Equipment
21. 1977-78 G.O. Ms. No.-383 Edn. dt.15-3-78 0.50 Annual Grant
22. 1978-79 GO. Ms. No. 318 Edn. dt. 13-3-79 050 Annual Grant
23. 1978-79 G.O. Ms. No. 315 Edn. dt.16-3-73 0.50 Construction
24. 1979-80 G.O. Ms. No. 213 Edn. dt. 11-3-81 0.50 Annual Grant
25. 1980-81 G.O. Ms. No. 286 Edn.
dt. 11-3-81 0.50 Annual Grant
26. 1981-82 G.O. Ms. No.306 Edn. dt. 23-3-82 0.50 Annual Grant
27. 1981-82 G.O.Ms, No 226 Edn. dt. 15-382 0.20 Scholarship
43. By order dated 10-12-97 while directing the Government to file affidavit with regard to the information sought for, I specifically observed that the affidavit shall advert to the facts whether the properties held by the Public Schools belongs to Government and the Contributions made by the members of the General Body of the society in developing the society. I further directed to state whether the office bearers of the society can question the orders passed by the Government in a Court of law. In the counter filed by the Secretary to Government, Education Department, who is also the Chairman of the Board of Governors, it is categorically stated that "I submit that after formation of the society the members have not subscribed more than what they are required under the bye laws i.e. membership fee of Rs.1,000/- for life member and Rs.100/- per annum for an ordinary member."
44. In all the affidavits filed on behalf of the General Body of the society no whisper whatsoever was made about the contribution of these members in the development of the school to the present stage.
45. While the above facts were culled out from the voluminous record filed in the Court in a haphazard manner by the Government, now I would like to refer to the letter of Mr. P. Jagadish Reddy addressed in the capacity of Secretary and Treasure to the Hon'ble Prime Minister at a time when the Government was contemplating the take over the school, though he suppressed most of the facts he admitted the fact that the land belongs to Government and the Hyderabad Public School Society was managed by the Board of Governors.
46. In Ramana Dayaram Shetty v. International Airport Authority of India, the Supreme Court prescribed certain tests for determining whether an organisation can be said to be an instrumentality or agency of the Government. It further held that if the entire share capital of the Corporation is held by the Government it would go a kaigway towards indicating that the society is an instrumentality or agency of the Government where financial assistance of the State is so much to meet almost the entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with governmental character. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. If the functions of the Corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of the Government. Though these are not inclusive and clinching and they are merely indicative the same has to be used with care and caution to find out whether the Corporation is an instrumentality or agency of the Government.
47. In this case the entire land and buildings of the society belong to the Government. To provide autonomous status the Goverment itself registered the society under the provisions of Hyderabad Act 1 of 1350 Fasli on 20-9-51 so that it can develop into a self supporting organisation. As on today, according to them, there are 28 members in the society and as to how many of them are life members and how many of them are ordinary members no information is made available. It is their case that without bringing even a single pie over and above the membership fee prescribed in the Bye-laws of the society, the entire school is being administered with the fees received from the students supported by governmental assistance as and when required either for construction of the buildings or grants for payment of salaries etc. As per the existing bye-laws of the society the Principals and the Secretary and the Administrative Officer shall be appointed or removed by the Board of Governors with the prior approval of the Government of Andhra Pradesh. Likewise, without prior approval of the Government the rules cannot be altered by the members of the society on their own. Unless the Board of Governors recommends appointment of a person as member of the society he cannot be taken as a member of the general body of the society. From this it is seen that there is deep and pervasive control of the State in running the affairs of the society. In case of Unni Krishnan, J.P. v. State of Andhra Pradesh, the Supreme Court held that the right to education has been treated as one of the transcedental importance in the life of an individual and educating a citizen is the main function of the State and private educational institutions supplement the functions performed by the institutions of the State. Private educational institutions merely supplement the effort of the State in educating the people and it is not an independent activity. It is an activity supplemented to the principal activity carried on by the State.
48. In this case also the activity of the society is a governmental activity. From the historical background of this case, it is seen that after Jagirdari system was abolished the college was taken over by the then Hyderabad Government and Government itself flouted a decision to register it as a society and entrusted the administration of the public schools to Board of Governors, mostly comprising of governmental officials. Though a General Body was created for the society in the year 1965 only to meet a contingency set forth by IPSC they cannot transgress their limits. Its functions are only of routine nature and at best they can aid, advise the Board of Governors in administering the affairs of the schools. But they cannot usurp the powers of administering the college by themselves which was not entrusted to them under the bye-laws of the society and they cannot question the actions of the Government. A creature under an instrument cannot exercise more powers than what were conferred under the instrument and question the very powers of the authority or body that created it. This view of mine is supported by a judgment of the Supreme Court in the case L. Chandra Kumar v. Union of India and others, 1997 (3) SC 147 wherein, while considering the constitutional validity of the clause 2(d) of Article 323-A and clause (d) of Article 323-B, the Supreme Court observed that the Tribunals are competent to hear the matters where the vires of statutory provisions are questioned, however, in discharging their duties they cannot act as substitutes for High Courts and the Supreme Court which have constitutional set up been specifically entrusted with such an obligation. Their function in this respect is only for supplementary and all also such decisions of the Tribunal will be subject to scrutiny before the Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The tribunals shall not entertain any question regarding the vires of their parent statues following the settled principle that a Tribunal which is a creature of an Act cannot declare that the very Act to be unconstitutional.
49, For the foregoing reasons, I have no hesitation to hold that the Hyderabad Public School Society is an instrumentality of the State and the Schools run by the society are the Government schools. I have gone through the judgments relied on by the petitioner Counsel in support of his contention. The subject-matter in W.P.No.5035/80 relates to the dispute regarding the service of one Mr. Govardhan Chary and this Court held that unless the factum of control by the State is established, however indirectly it may be the institution merely because it receives State aid cannot be said to be an instrumentality of the State to come within the meaning of Article 12of the Constitution of India. Sucha finding was recorded on the basis of the counter affidavit filed by the society that the school is not admitted to grant in aid scheme and the school is not being run by the funds of the State Government. The learned Judge made some observations with regard to the Board of Governors also by staling that apart from the officials of the Government there arc others who are also on the Board of Governors such as Vice Chancellor of the Osmania University and there are independent persons who are expected to be independent. This observation was made how the Vice Chancellor came to be on the Board of Governors and without reference to the background of the case and the bye-laws of the Society. A Division Bench of this Court in Writ Petition No.7705/96 dated 1-8-96 has also taken a similar view. Their Lordships proceeded on the basis of an affidavit filed on behalf of the Secretary to Government, Education Department, stating that the school is a private institution and that the State has nothing to do with it.
50. The entire historical background set out above establishes beyond doubt that these persons who have no respect for law simply mislead the Court and obtained such a judgment by playing fraud on the Court. Further their Lordships did not consider the question whether a private institution can be established without obtaining the recognition from the State. In other words, permission to start the school, from the state is required as is now well settled principle that imparting education is the principal activity of the Government and the private institutions can only supplement the effort of the State in educating the people and no private educational institution survives or subsists without recognition and/or affiliation, Unni Krishnan's case (supra). Further there was no occasion for the learned Judges to consider the historical background of the School as neither the Counsel for the petitioner ever bothered to bring it to the notice of the Court nor the Government. Hence I have no hesitation to hold that the above two cases were not correctly decided, more so in the light of the voluminous documentary evidence which was referred to supra. Hence I am not inclined to follow the ratio decidendi laid down in these two decisions as a Judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eye of law.
51. Hence while rejecting the contention of the Society that the Government has no control over the administration of the affairs of the Schools managed by the Society as devoid of merits, it is held that the Hyderabad Public School is established by the Government with the public funds and as such it is a Government School. Mere constitution of a Society and allowing few individuals to become members of the Society, the Government cannot be divested of its powers in the administration of affairs of the School/Society more so in policy matters pertaining to admissions and curriculum etc. Issue No. 2:
52. The song of the Society in refusing to implement the rule of reservation in favour of Backward Classes is that after abolition of the Jagirdar System, the college was reorganised as Hyderabad Public School and was affiliated as a Member of IPSC in 1952 and the students are appearing for ISCE examinations conducted by the said Council. Though the officials of the Government find a place on the Board of Governors of the School, the dual role played by them as the officials of the Government and the Board of Governors of the School are distinct and different and as such the School is not under the administrative control of the State Government. Hence, the provisions of the A.P. Education Act are not applicable to them and the Government cannot compel the Society to implement the rule of reservation in favour of the Backward Classes.
53. The above plea of the Society was resisted by the respondents by contending that even if it is a private school, the permission of the Government is required for the establishment of the school. It is now well settled that without recognition, no private educational institution can be established. The very fact that the school prepared and sent students for SSC examinations till the academic year 1980-81 and the fact of issuance of No Objection Certificate conclusively establishes that the school is established with the permission of the Government.
54. Further under the rules for affiliation of ISCE, only a recognised school is eligible to apply for the affiliation to the Council. Further, the provisions of A.P. Education Act extends to the whole of territory of Andhra Pradesh and all the schools except the institutions that were mentioned in Section 1 comes under the purview of the Act and under Section 2(35), a private institution is defined as an institution imparting education or training, established and administered or maintained by any body of persons can be recognised as educational institution, but, does not include the institutions maintained by the Governmental authorities and institutions imparting religion.
55. Before dealing with their contention, I felt it appropriate to extract certain statements made by the Secretary of the Society in Writ Petition No.5676/98, which prove that these individuals are under an impression that they belong to the princely class forgetting the changes brought in the administration of the country through a democratic form of Government whereunder equality before law and equal protection to all the citizens arc assured and the college established to educate the children of the Jagirdars which has become a captive in the hands of neo-Jagirdars will be polluted if the students belonging to Backward Classes are admitted in these schools and their children studying in these prestigious institutions will loose their identity. The Deponent stated in para 3 of the affidavit as follows:
"I submit that the contemporary prestige and reputation of the Hyderabad Public School, Begumpet and Hyderabad Public School Ramanthapur has lived upto its rich tradition. It is still construed and considered as one of the most prestigious educational institutions in the State of Andhra Pradesh. It is arguably one of the best. Its stress on the all round development of a child in a healthy environment has been focussed over the years towards high performances and committed training of the young for the morrow."
56. I have gone through the various affidavits filed by them from time to time in various writ petitions and none of them have thrown any light, as to why they are refusing to implement rule of reservation for Backward Classes. Now, from the above statement of the Secretary it is seen that he is referring to the children of the neo rich/princely class and he wants to keep up the tradition by shutting the doors of the educational institutions to the people who are just now trying to ameliorate their living conditions by taking up education to gain rightful existence leaving the hazardous manual labour to which their fore-fathers were forced to adopt for their livelihood as it has been recognised all over the world that education is having transcendental importance in the life of an individual and education means knowledge and knowledge itself is power.
57. The Secretary makes this sort of statements even after the judgment of the Supreme Court in Mohini Jain's case and Unni Krishnan's case, wherein the Supreme Court held, "the right to education is implicit in the right to life and personal liberty guaranteed under Article 21, and as such, right to receive education is a fundamental right flowing from right to life.
58. In para 4 of the affidavit, the Secretary states "that the performance of the school has been outstanding in the academic field and he has given the results of the school from 1992 to 1993-1996-97.
59. Knowing full well the mind of these individuals, by order dated 20-2-1998 apart from the other information under item No.9, the information with regard to the SC and ST candidates was called for and it is useful to extract the same, "Though in para 5 of the affidavit it is stated that the list of SC/ST candidates admitted is given in a separate annexure. But no such annexure is seen. Further, the Secretary says that SC & ST students were not admitted on the basis of the G.O. The Secretary is directed to substantiate his statement by furnishing details of SC/ST students that are admitted from the year of inception of the school in a tabular form showing ; (1) Name of the candidate; (2) Father's name; (3) Year of admission; (4) passed; (5) Division secured; (6) Failed; and (7) Whether any scholarship is being paid by the Government."
60. But, conveniently the Secretary filed two letters addressed by the Principal to him wherein he requires 4 to 5 weeks time to furnish the information and also requests the Chairman, Board of Governors to permit him to appoint one clerk-cum-typist for a temporary period exclusively for this job. Here it is pertinent to note that in the meeting of the Board of Governors held on 28-11-1962 in resolution No.37, the Board refused to implement the reservation in favour of SC students and the same is extracted hereunder:
"Resolution No.37 : Concession for Harijans :-With reference to the letter from the Education (SW) Department, Government of Andhra Pradesh No.5159/ R1/60-15, dated 18-10-1962 : The Board resolved that no special reservation need be made for admission of Harijan boys, but those Harijan boys who satisfied the necessary qualification for admission may be admitted, provided the fees are paid by either the Government or the parents concerned."
61. The above resolution clinchingly establishes that reservation in favour of SC and ST candidates is not being followed in these prestigious institutions as they are afraid that the entire atmosphere will be polluted if the children of the people who lived their entire life with a piece of loin - cloth, enter the precincts of these prestigious institutions. Without fear of contradiction, I can go on record that if any SC boy is admitted in this school prior to G.O. Ms. No.679, it is on his own merit, but not on the basis of the reservations, and I have no manner of doubt that the boy must be the son of a highly placed bureaucrat who can afford to get his child educated in a prestigious institution, where the yearly school fee of the child far exceeds the entire cost of his education.
62. From the records of the Society it is seen that the Society did not implement the reservation in their favour, also for a long time. To establish that fact, the Minutes of the meetings held on 30th May, 1983, published in Proceedings No. Admn./SOC/ May.83/HPS, dated 7th June, 1983 are produced hereunder:
2, Matters arising and resume of action
1. Admissions - 1983 : The Sub-Committee's report regarding the reservations for admission was presented by the Principal. The Society unanimously accepted the proposal of the Sub-Committee as under:
(a) that 7% of the admissions be reserved to the sons/daughters of ex-students of the school, who have either studied for atleast 5 years or who have studied and passed either the ICSE/ISC Examination.
(b) that 8% of admissions will be reserved for brothers/sisters (one only) if students who are on the current rolls of the School.
(c) if the number of applicants exceed the percentage of vacancies available then the admissions be based on test/merit.
(d) that applications for the reservation of these categories will be admissible and limited only to one of the category."
63. It is seen that the Society seemed to have started implementing rule of reservation in their favour from the academic year 1988 :
No.Anm/BG/Mar.88/HPS.
4th March, 1988 Reservation Pattern:
(a) 2 children only of old students who have studied at least five years in the school or those who have passed the 10th class or 12th class board exam from school .....7%
(b) One brother or sister of student presently studying in school ....8%
(c) For academic year 1988-89 Govt. of India Merit Scholars in HPS(B) .....12 in HPS(R) .....4 (as this has already been committed by the Principals. In future, the Principals should not commit without the sanction of the Board.)
(d) Concession given to children of teaching and non-teaching staff will continues.
(e) SC applicants sponsored by the respective concerned Government Department ...14%
(f) ST applicants sponsored by the respective concerned Government Department .....4%
64. The Board at its meeting held on 16th June, 1989 approved the prospectus for admission of the students for the academic year 1989-90 in the Chance Vacancies in following words:
"I. Filling up of Chance Vacancies for various classes for 1989-90 At HPS (B) and HPS (R):
The Committee has decided that alt Chance Vacancies arising in different classes after re-opening of both the schools are to be reserved for the following categories of candidates only.
01. Staff Children.
0.2. Boarders.
0.3. Children of Old Boys.
0.4, Brother/Sister of existing student.
0.5. Children of parents on transfer.
0.6. Wards of Officials of Local bodies having administrative dealing with the School"
65. The Board of Governors at their meeting held on 15th February, 1996 approved admission policy for the academic year 1996-97.
66. While no reservations are made for Pre-Primary Classes, only from Class-I, reservation in favour of SC and ST candidates are implemented and the same is extracted as hereunder:
"For PPI:
(a) 5% of seats available to be reserved for Brothers/Sisters of existing students (only one Brother/Sister will be eligible in this category).
(b) 5% of seats are reserved for the children of old students (only two children to be allowed).
(c) Staff: Open.
(d) 2 seats to be allowed to children of Class IV Employees.
(e) To draw a waiting list of 10% of seats available as reserve.
For Class I
(a) 5% of seats available to be reserved for Brothers/Sisters of existing students (only one Brother/Sister will be eligible in this category).
(b) 5% of seats are reserved for the children of old students (only two children to be allowed).
(c) Staff: Open.
(d) 2 seats to be allowed to children of Class IV employees.
(e) 15% of scats available to be reserved for SC children sponsored on full scholarship by Social Welfare Department.
(f) 7% of seats available to be reserved for ST children sponsored on full scholarship by Tribal Welfare Department The candidates under the categories of SC and ST will be selected directly by the Directors of respective Government Departments after conducting the Tests at their own level. The Hyderabad Public School will not make any selection for these reserved seats."
67. The Board at its meeting held on 15th January, 1997 in Resolution No.V approved reservations in favour of SC and ST students and in Resolution No.VII, approved reservations in favour of other categories of students. The same has been extracted as hereunder:
"V. to provide reservation to SC/ST children for admission into HPS (B) and HPS(R) for the year 1997-98 as follows :
HPS Begumpet HPS Ramanthapur
(a) 15 scats in class PP1 of which 10 willbe for SC children and 5 for ST children.
(a) 15 seats in Class I of which 10 will be for SC children and 5 for ST children.
(b) 26 seats in Class I of which 17 seats will be for SC children and 9 seats for ST children.
(b) 15 seats in Class Vof which 10 to be offered to SC children and 5 seats to be offered forST children.
x x x x VII. to follow the rules of reservation for other categories as was done during 1996-97 academic year viz.
For PPI:
(a) 5% of seats to be reserved for Brothers/ Sisters of existing students (only one brother/sister) will be eligible in this category.
(b) 5% of children of old students will be eligible under this category (only two children to be allowed).
(c) 2 seats to be allowed to the children of subordinate staff (Class IV).
For Class I:
(a) 5% of brothers/sisters of existing students.
(b) 5% of children of old students."
68. From this it is seen that these prestigious institutions have been observing the rule of reservation not only in favour of constitutionally permissible classes but also in favour of the persons connected with the schools such as old students and the present students and the wards of the officers working in local bodies (Hyderabad Municipal Corporation and Kapra Municipality) behind which there is no rationale at all. I have no manner of doubt that these people would have shown empty hands to SC and ST students also had there not been a powerful lobby of IAS officers belonging to these classes in the administration and one or the other of them had become the Chairman of the Board of Governors by virtue of becoming the Education Secretary of the State Government, In para 4 of the affidavit filed in support of Writ Petition No.5676/98, the deponent says as follows:
' 'A pulse of history is felt, with its Moghul style architecture, while entering the hollowed portals of the Institution and walking through its corridors, xxxx., after the Hyderabad Public School Society was formed which took over the management of the School with late Dr. Sarvepalli Radhakrishnan, former President of India, as the first patron of the Society. Mr. John W.R. Kempe was appointed the first Principal of the School. Hyderabad Public School has come a long way since but has not lost that touch."
69. I do not know what the deponent means by these averments whether he is afraid that if the children of constitutionally permissible classes are admitted to the socalled prestigious school, the Moghul style of architecture will be mined or in any way their admission is going to affect the stature and reputation of these individuals, who are associated with this school. I can only sympathise with the deponents' ignorance over men and matters and the foundations on which the democratic form of rule is functioning in a welfare State. It is also interesting to note that the School is imparting several extracurricular activities like Carpentary, School band and so on and so forth. I would like to pose a question to this deponent that any of their students in these two fields can be a match to an illiterate and ignorant person who is eaking-out his livelihood by continuing the traditional occupation of his fore-fathers. I conclude with one word that less these people speak about their merit, having cornored and grabbed everything in the Society better for them. In fact, to establish that no one has borne meritorious and if equal opportunities are provided, the students belonging to these unfortunate sections will not lag-behind to prove their merit, I directed the deponent to furnish information with regard to S.C. and S.T. students that were admitted in their school all these years. But, the deponent conveniently avoided to furnish the information, knowing fully well that he will be caught on the wrong side if the said information is furnished, more so, having stated in the affidavit that the particulars of S.C. and S.T. students were given in annexure, which was not there at all.
70. Before the legality of their contention is taken up for consideration, I wo:uld like to clear decks on two aspects of the matter. The first being, whether merit is the sole criterion for getting admission into the so-called prestigious institution or these people converted the school into their private property taking the laxity and ignorance exhibited by the governmental officials in discharge of their duties as members on the Board of Governors.
71. Writ Petition No. 13207/87 filed for issuance of quo-warranto against UK Principal of Hyderabad Public School, Ramanthapur by one Mr. Bal Reddy and others, who are the parents of the current students and ex-students of the public school at that point of time enumerated innumerable of illegalities that have been committed by the Principal in collusion with these persons. In para 13 of the affidavit they have given a number of instances as to how merit was the casuality while admitting some of the students.
72. I will deal the allegation and the answer (statement) filed by the Principal in seriatom.
Allegation No. I: Master V. Satyanarayana Prasad Rao s/o Sri V. Chandn Rao, MLA,, appeared for a written test for admission to 5th class for the academic year 1985-86 at Hyderabad Public School, Ramanthapur and could not get selected. For the academic year 1986-87 also he could not get selected. But curiously he was given admission into VI class on 20-7-1986 i.e., after one month of the commencement of the academic year.
Reply : Regarding Satyanarayana Prasad Rao s/o Sri Chandm Rao, MLA., he was admitted to VI class in 1985-86 session, in view of the fact that the boy was fit age-wise for class VI and there was a vacancy available in Class VI at that time.
Allegation No.2 : Master M Rajkumar s/o Mr. Rajgopal failed in the written examination but he was admitted into the school on 16-1-1986.
Reply: Master M Rajkumar was admitted to class V as a brother case in view of the fact that he secured 151 marks out of 300 marks. He was given preference as he was recommended as B.C. candidate by the former Education Minister. It should be kept in mind that admissions were over by observing rule of reservation in favour of brothers and sisters of the old students and in fact, though the boy got 151 marks he could not secure admission as per the ranking obtained by him. But he was given seat in the above mentioned manner.
Allegation No.3 : One Master Mullapudi Mrutyunjaya Prasad grandson of the then President of the Society Sri Mullapudi Harichandra Prasad, was admitted against supernumery vacancy in Class I, giving a go by to the selection process, who did not even register his application for admission for academic year 1987-88 session.
Reply : It is in exercise of my discretion, I admitted Master Mrutyunjaya Prasad against a supemumery vacancy in Class I as a special case as the child happened to be the grandson of a member of Board of Governors, who served the H.P.S. Society for the last 20 years and who is currently the President of the Society. And his admission is not in any way affected the merit list.
73. The Board of Governors at their meeting held on 12th December, 1995 under Item No. 11, admitted Master M Abhishek as a special case. The resolution is extracted hereunder:
"1. The Board resolved to give admission to Master M. Abhishek son of Mr. M.J. Hemanth in Class PP1 in HPS Begumpet as a special case."
74. From this it is seen that this boy was given admission after half of the academic year is over, without any test or any such sort of things.
75. Again the Board of Governors at their meeting held on 18th June, 1996, admitted two candidates by increasing the sanctioned strength, under resolution No.4 and the same is extracted hereunder:
"(iv) It was also resolved to admit unsuccessful twin brothers/sisters of those just admitted in Class I and IV in case of HPS (B) and Class V in case of HPS (R). This Board noted that this would mean and increase in the sanctioned class strength by two in case of Class IV in HPS (B) and one in case of Class V in HPS (R)."
76. From the above it is seen that as an younger brother was admitted to 1st class, his twin brothers/sisters were given admission in HPS (B) in IV class and from the resolution it is not known in which class the brother of the boy who was given admission in Class V in HPS (R) got admission.
Item No.1(b) : HPS (B) : The Principal, HPS (B) informed that there are 25 vacancies in PP1, 15 vacancies in Class I and 8 vacancies in Class V, and several vacancies in Classes 8, 9 and 10. The Board revolved as follows :
"(i) The Principal may fill up the vacancies in Classes 8, 9 and 10 as and when he gets applications but not too for into the first academic term.
(ii) In Class V the Principal informed that there were several candidates who had appeared in the Entrance Test who had passed in one subject and failed in the other. The Board resolved that he may admit all these who had passed in one subject and achieved atleast 35% in the other. If there are any further vacancies he may fill them by conducting the entrance test for these students who were on transfer.
(iii) PP1 and Class I: It was resolved that waiting list in the Old Boys quota be cleared. Further admission be given to Mast. Ramanujula Naidu s/o late Sri Paradesi Naidu, IPS, sponsored by the Government of Andhra Pradesh. After taking these seats into account, it was resolved that 50% of seats be allotted to Brothers/Sisters of existing students who are studying in Pre-Primary/ Primary sections, by draw of lots. The Principal is requested to prepare a list of these students and invite all Members of the Board for these draw of lots. The Balance of seats available will be filled by the Admissions Committee."
77. From the minutes of the Board of Governors at their meeting held on 28th November, 1962 it is seen that these Princes having got the costliest education imparted left the schools without clearing the dues and ultimately the Principal of the school reported that an amount of Rs.1,68,269/- has to be collected towards arrears of fees from the students that left the institution. This fact was seen in resolution No. 18.
78. A cursory look at the minutes of the Board of Governors and the counter affidavit filed in writ petition No. 13207/87 revealed the above things. From these it is anybody's guess, how merit is being followed in case of admissions in this prestigious institution.
79. The second aspect relates to the stand of the Society with regard to implementation of rule of reservation in favour of backward classes.
80. After issuance of G.O.Ms.No.697, dated 26-7-1979, to a letter written by the Dy. Director, the Principal furnished the information in his letter dated 28th January, 1981 in the following words :
"The Hyderabad Public School Principal Ramanthapur, NRK Moorthy Hyderabad-500 991, Telephones: (A.P.) O:703391 R: 71219 To Sri P. Ramachandra Pillai, Dy. Director (Training), Director of School Edn. Office, Hyderabad.
Dear Sir, Ref: Your DO No. 107-D2-3/80, dated 16-12-1980.
(1) With reference to your letter dated please find enclosed information in detail as required by you.
(2) Regarding number of applications received and accepted it is to inform you that whatever applications received from S.Cs./S.Ts. and B.Cs., have been accepted and they have been tested. Hence, there is no question of any rejection.
(3) Not applicable.
Thank you so much, Yours faithfully, Principal."
81. From the above letter the Principal has given an impression that the orders of the Government have been implemented in their true spirit.
82. In the year 1983, for the repeated letters written by the Commissioner of School Education. Whether the Government orders are being implemented or not, the School did not furnish any information. In those circumstances, the Director, Backward Classes Welfare, A.P., Hyderabad in his D.O. Letter No.B1/4272/B1, dated 11-2-1985, brought to the notice of the Chairman, Board of Governors Sri V.P. Rama Rao, IAS., who is no other than the Principal Secretary to Government, Education Department, that the Government issued order for reservation of 25% of seats to the students belonging to backward classes in public schools. But, no backward class students were sponsored by the Department so far, inspite of the fact that they got 25% reservation in Public Schools and stated as hereunder:
"xxxxx No B.C. candidates were sponsored by the Department so far inspite of the fact they have got 25% reservation in Public Schools. I therefore, proposed to sponsor the B.C. candidates under 25% reservation and the expenditure on them will be borne by this Department.
I, therefore, request you kindly to approve for admission of B.C. and Denotified Tribe candidates as against their quota in the three Public Schools functioning at Begumpet, Ramanthapur and Vanasthalipuram from the academic year 1985-86. On hearing from you, further action of sponsoring of candidates as is being done in respect of Scheduled Castes and Scheduled Tribes will be made at my end.
X X.X X X.
83. Though the Government came forward to bear the expenditure on them, the Chairman, Board of Governors, did not move in the matter. In those circumstances, one K.K. Lingam (minor represented by his father Sri K. Ramulu) filed Writ Petition No.777/85, I would like to extract the statements made by the Principal in the counter affidavit filed on behalf of the respondents. In para 3 and 5 he stated as follows :
"x x x x x x. The minimum marks prescribed for admission to Class I was 60% in each subject i.e., English and Mathematics. Even as per G.O.Ms. No.697/Education, dated 26-7-1979, clause (ii) of the G.O. says that admissions shall be made strictly on the basis of marks obtained in the qualifying examination and as per the reservation 25% of seats were given to Backward classes as per the said G.O. x.x xxx.
5. The allegation in paragraph 6 of the affidavit of the petitioner that the school is bound to follow G.O.Ms.No.697 with regard to reservation is not accepted. But the Board also adopted to go by reservation as contemplated by G.O.Ms.No.697. As already explained above, there were 14 candidates who were admitted from backward classes out of 58 vacancies, which is more than 25%."
84. His Lordships Justice K. Ratnaswamy, as he then was, disposed of the writ petition by order dated 16-12-1985 by relying on the statements extracted above in the following terms:
"xxx xx.
In view of the fact that the Government have issued the G.O. prescribe the rule of reservation to be followed by the respondents, the respondents are bound to follow the rule of reservation prescribed. The petitioner did not expressly plead in the writ petition that 25% prescribed for Backward Classes has not been adhered to. From a reading of the averment made in para 5 of the counter affidavit, it would be clear that the respondents have adhered to the rule of reservation and compiled with the condition of admitting 14 candidates belonging to the Backward Classes which would be coming to 25% prescribed for the Backward Classes. Therefore, I do not find any substance in the writ petition and it is accordingly dismissed, but in the circumstances without costs."
85. From the above judgment it is seen that the learned Judge recorded a finding in so many words that when once the Government prescribes rule of reservation, the respondent school is bound to follow the same. But, the Society not only failed to implement rule of reservation, but also taken a round about turn and started contending before other Judges where the writ petitions came up for admission, in the manner stated supra, which found favour with these Judges and ultimately, the rule of reservation was not implemented all these years.
86. Now coming to the contention raised by the Society;
The Delhi School Education Act, 1973 (Act 18/73) (for short 'the Delhi Act') came into force on 9-4-1973 to provide for better organisation and development of School Education in the Union Territory of Delhi and all matters connected therewith or incidental thereto.
87. Chapter 1 of the Delhi Act deals with the definitions. Chapter-II deals with the Establishments, Recognitions, Management of, and Aid to, Schools. Chapter-IV, deals with recognition of schools. Under Section 4(1), the appropriate authority may, on an application made to it in the prescribed form and in the prescribed manner, recognise any private school, if the conditions enumerated therein are fulfilled.
(a) it has adequate funds to ensure its financial stability and regular payment of salary and allowances to its employees;
(b) it has a duly approved scheme of management as required by Section 5;
(c) it has suitable or adequate accommodation and sanitary facilities having regard, among other factors, to the number, age and sex of the pupils attending it;
(d) it provides for approved courses of study and efficient instruction;
(e) it has teachers with prescribed qualifications; and
(f) it has the prescribed facilities for physical education, library service, laboratory work, workshop practice or co-curricular activities.
88. Sub-section 2 deals with procedure i.e., every application for recognition of a school shall be entertained and considered by the appropriate authority and the decision thereon shall be communicated to the applicant within a period of four months from the date of the receipt of the application; and where recognition is not granted, the reasons for not granting such recognition shall also be communicated to the applicant within the said period.
89. Sub-section 3 provides appeal. Subsection 4 deals with cancellation of recognition obtained by fraud, misrepresentation, etc., sub-section 5 states that grant of recognition shall not, by itself, entitle any school to receive aid. Under sub-section 6, every existing school shall be deemed to have been recognised under this section and shall be subject to the provisions of this Act and the rules made thereunder:
90. Under Section 5 of the Delhi Act, every School must have a scheme of management approved by the appropriate authority
91. Chapter 4 deals with admission to schools and fees.
92. Section 19(1) : For the purpose of any public examination every recognised higher secondary school shall be affiliated to one or more of the Board or Council conducting such examination and shall fulfil the conditions specified by the Board or Council in this behalf. Under sub-section (2) the students of higher secondary schools have to take the public examination to be conducted by one of the affiliated Board or Council under this Act. The middle school students have to take the public examination conducted by the Director of Education, Delhi. Clause 4 deals with primary schools and the same throws some light on the contention of the petitioner. The same is extracted hereunder :
"Every student of a recognised primary school shall be prepared for, and presented to, the public examination held by a local authority competent to hold such examination for the students of such schools."
93. Under Section 28(1), the Administrator may, with the previous approval of the Central Government, and subject to the condition of previous publication, by notification, make rules to carry out the provisions of this Act. Section 2(b) deals with the conditions which every existing school shall be required to comply; sub-section (i) deals with the particulars which a scheme of management shall contain and the manner in which such scheme shall be made; sub-section (q) deals with admissions to a recognised school.
94. Now, coming to the definitions part; Clause 2(e) defines appropriate authority as follows:
"appropriate authority" means-
(i) in the case of a school recognised or to be recognised by an authority designated or sponsored by the Central Government, that authority;
(ii) in the case of a school recognised or to be recognised by the Delhi Administration, the Administrator or any other officer authorised by him in this behalf;
(iii) in the case of a school recognised or to be recognised by the Municipal Corporation of Delhi, that Corporation;
(iv) in the case of any other school, the Administrator or any other officer authorised by him in this behalf;
95. Clause 2(n) "managing committee" means the body of individuals who are entrusted with the management of any recognised private school; Clause 2(r) "private school" means a school which is not run by the Central Government Administrator, a local authority or any other authority designated or sponsored by the Central Government, Administrator or a local authority; Clause 2(s), "Public examination" means an examination conducted by the Central Board of Secondary Education, Council for Indian School Certificate Examinations or any other Board which may hereafter be established for the purpose and recognised by the administrator or any other officer authorised by him in this behalf; clause 2(t) "recognised school" means a school recognised by the appropriate authority;
96. From the above provisions it is seen that though the Act is intended for the educational institutions established and maintained in the Union territory of Delhi by virtue of the recognition granted by the Administrator, the Council of Indian Schools Certificate Examination is also permitted to conduct public examinations. As seen from Section 19 of the Act, the ISCE is empowered to conduct public examinations to the students of a recognised higher secondary school affiliated to the Council. And from Sections 4 and 19 of the Act recognition of a school and affiliation of a school arc altogether different and distinct and the question of affiliation to the council will arise only when the school established is a recognised school. The recognition under the Act can be given to a school by an authority designated by the Central Government, if the school is to be recognised by the Central Government If it is a school established within the Union territory of Delhi the recognition can be granted either by the Administrator or an officer authorised by him in this behalf. In the case of a school established in Municipal Corporation of Delhi, the recognition can be granted by the Municipal Corporation. And in case of any other school, the Administrator or other officer authorised by him in that behalf. Though a private school can be run by the authorities not mentioned under Section 2(r) the same has to be recognised for the purposes of this Act. In fact, from the definition of Managing Committee under Section 2(n), the school run by the Managing Committee should be recognised. From Section 19 also it is seen that only recognised schools can be affiliated to the Council or the Board constituted under the Act, but not an unrecognised school. Under Section 2(c), wherein the appropriate authority was defined, sub clause I, II and III relate to the schools to be recognised by the Central Government, schools that are established within the Union territory of Delhi and the Municipal Corporation of Delhi. Only in sub-clause 4 there is some ambiguity, whether any reference is made to the schools functioning outside the Union territory of Delhi or not is not clear,
97. To my mind, the question of granting recognition, in other words granting permission for establishment of a school in the State of Andhra Pradesh cannot be vested with the Administrator of the Union territory of Delhi, more so, the appropriate authority for grant of recognition and affiliation have nothing in common. Further, except recognising the examinations conducted by ISCE, which was registered under the Societies Act by virtue of the recognition given by the Administrator, neither the Act nor the Administrator have to do anything with the schools constituted outside the Union territory of Delhi. At any rate it is not the case of the Society that the school is recognised by the Administrator or any other authority empowered in that behalf under the Act.
98. The Council of ISCE published the information for the guidance of schools seeking affiliation to the schools.
99. Chapter 1 deals with provisional affiliation of schools. Clause 1(2), Schools seeking affiliation to the Council for its examinations will have to obtain a Certificate of Recommendation/No Objection Certificate from the State Education Department in the prescribed form. In other words unless the State Government recognises or issues No Objection Certificate for affiliation of the School to ISCE no school on its own can seek affiliation to the Council. It means that unless the State Government permits for establishment of a school in private sector, the question of issuing recognition or No Objection Certificate by the State Government does not arise. Under clause 1(3)(d), the school must have a properly constituted Governing Body, which is responsible to, and under the Control of, the Society or Trust.
100. In St. Xaviers College v. State of Gujarat, , a Constitution Bench of 9 Judges categorically held as follows:
"Recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution, has no right to insist that the certificates or degree (if they can be called as such) awarded by such institution should be recognised by the State-much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance - the very life-blood of a private educational institution. Ordinarily speaking, no educational institutions can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the Country."
101. The same view was affirmed by the Supreme Court in Unni Krishnan 's case in the following terms :
"The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the Principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-in its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14and 15. If so, it cannot confer such immunity upon its affiliates.''
102. Further, the distinction between the recognition and affiliation was clearly pointed out by their Lordhips of the Supreme Court in The Principal and others v. the Presiding Officer and others, . The question that fell for consideration of the Supreme Court in this case was whether M.C. Jindal Public School, Punjabi Bagh, New Delhi, is a recognised private school on the relevant date or not.
103. The admitted facts are the Administrator or any authoised officer did not grant recognition to the school, but the school seemed to have affiliated to CBSE. On that basis, the school appeared in the list of higher secondary schools and middle schools in the Union territory of Delhi for the year 1974-75 prepared by the statistical branch, Directorate of Edn. of the Delhi Administration. When the services of the Principal were terminated by serving a notice as well as by paying salary in lieu of three months notice he approached the Delhi School Tribunal under Section 11 of the Delhi Act. The Tribunal held that the termination of the services of the Principal without prior approval of the Director of Education is bad. The Supreme Court while reversing the judgment having extracted Section 2(e) ie, the definition of appropriate authority, held as follows :
"From the above definitions, it is clear that no school can be treated as a 'recognised school' unless it is recognised or acknowledged by the 'appropriate authority'. In case of the School in question, it is the Administrator or the officer authorised by him who could accord recognition to it. A perusal of letters dated April 6, 1976, February 1, 1977 and June 6, 1977 of the Directorate of Education, New Delhi (at pages 90,95 and 162 of the record) makes it clear beyond any shadow of doubt that the school was not recognised in terms of the Act till the end of April, 1977 and it was only with effect from May 1, 1977 i.e., long after the relevant date viz August 8, 1975 that the approval or recognition was accorded to it vide Letter No.F.22(15) Z-XI(B) - 1968/2003, dated June 6, 1977 of the Directorate of Education, Rajinder Nagar, New Delhi, This position has been admitted even by respondent No.2 in para 4 of the Supplementary Affidavit filed by him before this Court. Even according to para 2 of the said affidavit, the recognition of the School by the competent authority was not there on the relevant date.''
104. From the above decisions the following principles could be deduced.
105. While recognition has to be given by the State or an authority constituted for that purpose after satisfying itself that the requirement of the Act and the Rules made thereunder, have been fulfilled by the organisation which intends to establish a school, affiliation has to be granted either by a University established under Universities Act or any other academic or other body empowered to grant affiliation to other educational institutions for admitting their students to the examinations that are being conducted by that body and to award certificates to them. When once a school is established in a particular State without obtaining the recognition/permission from that State, on which an obligation is cast to get its citizens educated, the question of establishing or running the private school does not arise. Hence, it is futile to contend that because a school is affiliated to Council of the Indian School Certificate Examination, the institution need not be recognised by the State in which the school is established. In fact, ICSE does not undertake to affiliate a school unless it is recognised and the State Government permits and forwards the application with no objection certificate.
106. Further, affiliation from ISCE is required for purposes of preparing candidates and presenting them in the 1st instance, for the Indian Certificate Secondary Education examination as is evident from Section 19 of the Delhi Education Act and provisional affiliation rules. Hence, to run the pre-primary and primary classes upto V class, recognition of the Government is required.
107. Further, it can be seen that while ISCE itself came into existance in the year 1958, having been registered under Societies Act, the Hyderabad Public School is in existance from the year 1951, after, the then Hyderabad Government re-organised the Jagirdars' College as Hyderabad Public School. Further, in the counter filed in Writ Petition No.8362/98, the Secretary, School Education, categorically stated that this institution was sending students for ISCE examination and also for State SSC examinations from academic year 1972-73 to 1980-81. Out of 4 sections in X class, students of 2 sections have appeared for ISCE examination and the students of the remaining 2 sections appeared for SSC examination as regular candidates. It is only from the academic year 1981-82 onwards the Society discontinued the SSC scheme, by which time pressures are being mounted on the Society withdrew the SSC scheme from academic year 1981-82 and from the events that have taken place thereafter. I have to presume that a deep-rooted conspiracy was hatched by these individuals perhaps, in connivance with the officers of the Government who are on the Board of Governors/ management to divest the control of the Government gradually without coming to the adverse notice of the Government.
108. With regard to the clause 3(d) of the affiliation rules it is only at the instance of the conference, with much reluctance the State Government revised the rules of the Public School and constituted a General Body to satisfy the said condition,
109. In fact, while granting permanent affiliation with effect from 1-5-1981, the CBSC in its Letter No.CBSC/Al/OS-I/132/14206, dated 17-3-1981 imposed certain conditions and the relevant are extracted hereunder:
"xxxxx.
5. The rate of tuition and other fees shall not be changed without the prior permission of the competent authority.
6. The admission to the School shall be open to all without any discrimination on the grounds of religion, or caste or race, place of birth or any of them.
xxxxx
110. From the Resolution No.28 of the Board of Governors at their meeting held on 10-9-1962, shown the fee structure as hereunder:
Boarders :
Senior School ...
Rs.1,600/-
Primary School ...
Rs.1,100/-
Day Boys :
Senior School ...
Rs. 700/-
Primary School ...
Rs. 600/-
111. In the meeting of the Board of Governors held on 11-4-1996, the fees structure for 1996-97 was fixed as hereunder:
"For HPS (B):
For Class PP1 ...
Rs.4,000/-
Rs.3,000/-
as against now being collected For Class I ...
Rs.4,650/-
For HPS (R):
For Class I ...
Rs.4,350/-
For Class V ...
Rs.4,350/-
112. Within a few day's i.e., in the meeting of the Board of Governors held on 24th April, 1996, the fees structure was once again revised as follows:
H.P.S.(B) H.P.S.(R) Existing Revised Existing Revised Day Boarders Classes : PP1 and PP2 Rs.6,000/-
Rs.7,500/-
--
--
" 1 to 5 Rs.7,000/- Rs.8,800/- Rs.7,000/- Rs.8,800/- " 6 to 10 Rs.8,500/- Rs.10,700/- Rs.8500/- Rs.10,700/- " 11 to 12 Rs. 10,000 Rs.12,500/- Rs.10,000/- Rs.12,500/- Boarders Classes : 3 to 5 Rs.16,500/- Rs. 27,500/- Rs.16,500/- Rs.22,300/- " 6 to 10 Rs.18,000/- Rs. 29,300/- Rs.18,000/- Rs.24,000/- " 11 to 12 Rs. 20,000. Rs.31,200/- Rs.20,000/- Rs.26,000/-
113. It is also interesting to note that the registration fee for the academic year 1997-98 was increased from Rs.200/- to Rs.400/- and it is further interesting to note that having hiked the fee to a great extent, they have decided to stop the lunch and snacks given to the students in the school so as to enable them to reduce the burden of hiking the fee in future.
114. The competent authority referred to in the affiliation letter should necessarily mean the authority which has to recognise a private school (i.e.,) Government or an authority appointed by the Government for that purpose. But, at the same time they have not taken prior permission of the competent authority to change the fee structure and it can be seen that in 1960's while a student studying 1st class paid tution fees at Rs.1,100/-, he is now asked to pay through his nose Rs.8,800/- as tuition fee and the students studying VI to X classes have to pay Rs.30,000/- towards tuition fee.
115. All these factors conclusively establish that the non-official members admitted to the General Body under these revised bye-laws of the society are now trying to grab the public property worth hundreds of crores of rupees and trying to grab the public school for themselves.
116. From the foregoing discussion on this issue it is held that I.C.S.E. is permitted to hold public examinations i.e., Indian Certificate of Secondary Education examination, by virtue of the recognition granted by the Administrator of the Union Territory of Delhi, under the provisions of the Delhi School Education Act, 1973, for the candidates presented by the recognised higher secondary schools that arc affiliated to the Council. Hence, recognition of the school is a pre-requirement for seeking affiliation of the Council and it is not the case of the Society that the school is recognised either by the Central Government or the Delhi Administration under the said Act.
117. Under the conditions of the provisional affiliation of the Schools as published by the Council, the schools seeking affiliation to the Council for their examination will have to obtain a certificate of recommendation/No Objection Certificate from the State Education Department in the prescribed form. The very insistance of certificate of recommendation/No Objection Certificate by the State Government pre-supposes the recognition/permission for establishment of the school by the State Government. From the very fact tint the State Government has given the No Objection Certificate it should be deemed that the school is a recognised one even if the contention of the Society is accepted. Further, while the Hyderabad Public School came into existence in the year 1951, the Council came into existence in the year 1958 and it is also now on record that the school was sending students for the S.S.C. examination that is being conducted by the State Government, from academic year 1970-71 to 1980-81. While the recognition is a must for establishment of a private school, by the State Government to satisfy itself on the compliance of the requirement of the Act and the Rules made thereunder, by the school, affiliation has to be granted either by a University or any other academic or other body empowered to grant affiliation to other educational institutions for admitting their students to the examinations that are being conducted by that body and to award certificates to them.
118. Hence, without recognition no private school can be established and the school cannot exist on the basis of affiliation obtained from the body empowered to grant affiliation. Like wise no private educational institution can survive or subsist without recognition as it will be merely supplementing the principal activity of the State in educating the people and all that applies to the main activity, applies equally to the supplemental activity. As the State cannot claim immunity of its obligations arising from Articles 14 and 15, the educational institution which are carrying supplemental activity cannot also claim immunity from Articles 14 and 15. As the public school is in existence by the time the A.P. Education Act came into existence, the same shall be deemed to be an educational institution under Section 22 of the Act and the School is bound to comply with the provisions of the Act and the Rules made thereunder.
Issue No. 3 : From the preamble of the Constitution it is seen that the State is committed to secure Justice, social, economic and political, Equality of status and of opportunity, to all its citizens among other things. Article 14 envisages equality before law and equal protection of the laws within the territory of India.
119. While Article 15(1) prohibits the State from discriminating its citizens on grounds or religion, race, caste, sex, place of birth of any of them, Article 16(1) envisages equality of opportunity to all citizens in matters relating to employment or appointment to any offices under the State. Under Article 16(4), the State is not prevented from making provision for reservation in appointments or posts in favour of any backward class of citizens, which in the opinion of the State is not properly represented in the services under the State. Subsequently, by Section 2 of the 1st Amendment Act of 1951, Clause 4 in Article 15 was introduced to the affect-Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
120. In Indrasawhney and others v. Union of India, 1993 SC 477, Justice Jeevan Reddy speaking for the majority interpreted Article 14 as hereunder :
"The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression "equality before the law" is illustrated not only by Articles 15 to 18 but also by the several Articles in Part IV in particular, Articles 38, 39, 39-A, 41 and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality-either equality before law or equality in any other respect."
121. As per the ratio decidendi laid in State of Kerala v. N.M. Thomas, , for the first time Article 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) of the Constitution and they are the other two facets of equality guaranteed under the Constitution, was found favour with the majority of the Judges in the above case.
122. It is suffice to reproduce the view of the majority speaking through Justice B.P. Jeevan Reddy:
' 'The view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The backward class of citizens" arc classified as a separate category deserving a special treatment in the nature of reservation of appointments/ posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1)."
123. In Indra Sawhney's case (supra), the official memorandum dated 13-&-1990 and September 25, 1991, wherein the reservations in matters of appointment to Central Government services were assailed the observations of the learned Judge extracted above, equally apply for the reservations made in the admissions to educational institutions.
124. It is not in dispute that in the State of Andhra Pradesh, rule of reservation is being observed in admissions to educational institutions. When it was brought to the notice of the Government that certain schools like the H.P.S. are not implementing the rule of reservations in favour of B.Cs. and S.Cs and S.Ts., the Government was constrained to reiterate its stand in G.O.Ms.No.697, and directed the schools concerned to observe rule of reservation implicitly. Though for some time, the Society resisted implementing of reservation in favour of S.C. and S.Ts., it started implementing after a long time. Again while implementing the G.O. to the extent of reservations in favour of Scheduled Castes and Scheduled Tribes, it did not choose to implement that part of the G.O., relating to reservations in favour of Backward Classes. The Government order being a composite and comprehensive one making the commitment of the Government crystal clear for upliftment of the neglected sections of the Society, directed these schools, to implement the reservations in favour of these classes. But, the members of the Society in collusion with the officers of the Government headed by Secretary to Government, Education Department, incharge of School Education, Director of public instructions, who are not only the policy makers, but also entrusted with the responsibility of getting the policy of the Government implemented, did not choose to implement the reservations in favour of only B.C. students, more so, without any ostensible reason. Hence, the action of the petitioner society in implementing one part of the G.O. and not implementing the other part of the G.O. is nothing but, arbitrary action of highest order.
125. I have already taken the view that the H.P.S. Society is a governmental agency. Even assuming for arguments sake, that it is a private educational institute, as the land and the buildings not only belong to the Government, but considerable amounts were also spent by the Government for establishing and maintaining these schools from time to time, the Government is entitled to give directions on policy matters, to see that the school acts in accordance with law. In fact, these schools arc being maintained with the tution fees collected from the students and the amounts that arc being released by the Government. I have also extracted the audit report for the year 1976-77 wherein he categorically observed that as the School is having substantial funds, there is no need to continue the grant-in-aid that is being paid every year to these schools. Hence, for this reason also, the Society assumes the character of governmental agency as it is discharging a public duty. Hence the Society cannot refuse to implement the rule of reservation in favour of B.Cs,
126. Nextly, as held in Unni Krishnan's case (supra) the activity of the private schools is merely a supplemental one to the State activity What applies to the main activity, applies equally to the supplemental activity also and the State cannot claim immunity from the obligations arising from under Articles 14 and 15, if so it cannot confer upon its affiliates. On this ground also, the action of the petitioner Society is declared as illegal and an arbitrary action of highest order.
Issue No.4:
From the historical background that was culled out by this Court, it is clear that the Society itself is a creature of the State and it cannot wag and question the actions of the Government, as the tail cannot wag the dog. The very fact that these individuals who are members of the creature of the State, dragging the Government to the Court, more so, questioning its orders is highly illegal. In fact, the view taken by me receives support from the judgment of the Supreme Court in Chandra Kumar v. Union of India, 1997 (3) Supreme 147, wherein their Lordships observed that the settled principle is that a Tribunal which is creature of the Act cannot declare the very Act as un-constitutional. Hence, the Society cannot question the orders issued by the Government.
Issue No. 5:
The resolutions passed by the Board of Governors from time to time whereunder the school made reservations were provided to the children of old students, brothers and sisters of students studying in the school, children of the school employees, children of parents on transfer and reservations for the sons and wards of the officials of local bodies having administrative dealing with the school, Ex-students returned to Hyderabad on transfer on their parents children of School helpers from whom all kinds of help has been received and is being received voluntarily in various school affairs including the school functions, programmes, school development so on and so forth. In the case of Chairman/Director, Combined Entrance Examination (CEE) 1990 v. Osiris Das, their Lordships observed that admissions to an institution or a course of study is determined on merit on the basis of evaluation of marks at the Entrance Examination and no student securing lower marks has any legal right for admission much less a right enforceable in a Court of law. Since the reservation of seats in favour of the sons and wards of the employees of the University was apparently violative of Article 14 of the Constitution of India, no Court could issue directions for the enforcement of any such reservation. The reservation of seats for admission to the B.Tech. course in favour of the sons and wards of the employees of the University is violative of the Doctrine of Equality enshrined under Article 14. There is no rationale for the reservation of the seats in favour of the sons and wards of the employees of the University nor any such reservation has any reasonable nexus with the object which is sought to be achieved by the University. Once the State Government and University both decided not to have any reserved quota for the sons and wards of the employees of the University, no legal right could be claimed for being given preferential treatment in the matter of admission. The same view was once again reiterated by the Supreme Court in the case of Thapar Institute of Engineering and Technology v. Stale of Punjab, . The facts of the case are that the Technological Institute of Textile and Science at Bhiwani in the State of Haryana is running a technical institute which awards B.Tech/M.Tech/ M.M.S. degrees. It is affiliated to Maharshi Dayanand University, Rohtak and it does not receive any financial aid either from the State Government or the Central Government or from the respondent-University or from any local authority. It also owns and runs a textile mill wherein the students receive practical training under the actual mill working conditions. The normal intake in the B.Tech course of the TIT and S is 90 students each year and admission to these 90 seats is made according to merit on the basis of a competitive entrance test conducted by the University. This institute provided four additional seats for the wards of its employees which was not acceded to by the University. A writ petition filed by the institute was dismissed and thereafter the institute filed S.L.P. The Supreme Court observed as hereunder:
"It is no doubt true that the TIET has been declared to be a "deemed University" by the Central Government under the provisions of the University Grants Commission Act, 1956. But this does not mean that it is permissible for the TIET to depart from the principle laid down by this Court that admission should be made strictly on the basis of merit. The position of the TIET, a deemed University, cannot be better than that of the G.B. Pant University which is a full fledged University and in view of the decision of this Court in Chairman/Director, Combined Entrance Examination (CEE) 1990 v. Osiris Das (supra) it must be held that it was not permissible for the TIET to reserve 2% of the seats for the wards of the employees of the TIET."
Infact in the said judgments the reservations of this nature made by the several institutions were declared as invalid.
127. Following the above two judgments I have no manner of doubt that the action of the respondents in observing the reservations in favour of the constitutionally impermissible classes offends Article 14 of the Constitution of India and the same is accordingly set aside.
128. In the result, the writ petition filed by the society is devoid of merits, In the light of the findings recorded by me in Writ Petition Nos.5676/98 and 8362/98. No cause survives to be adjudicated. Be that as it may, for the purpose of record I may state that the complaint of the society in Writ Petition No.5776/98 and Smt. Giiika Dntta Dhupkar, one of the member of Board of Directors in the capacity of President, Parent Teachers Association in W.P.No.8362/98 is one and the same. Their case is that in the meeting of Board of Governors held on 19-1-98 the Board of Governors did not pass any resolution to implement the rule of reservation in favour of the backward classes and on the other hand the nominees of the respective bodies sought time to consult their respective general bodies, but to their surprise the 4th respondent circulated the minutes of the meeting held on 19-1-98 wherein the resolution was recorded that the Board of Governors have decided to provide reservations for backward classes and proceeded with the issuance of a notification in the newspaper calling for applications from the backward classes candidates for admission into the school for the academic year 1998-99. The said allegation was denied in para (9) of the counter affidavit filed by the Chairman of the Board of Governors. They categorically stated that except the Secretary to Finance, Finance Department, all the members of the Board of Governors attended the meeting and in principle all the members of the Board of Governors have agreed to implement the rule of reservation. In reply to this counter, the Counsel for the petitioner in W.P.No.8362/98 brought to my notice that apart from herself and Vice Chairman of the Society one or two members have also objected to the minutes communicated to them. The fact remains that out of the 17 members even according to the petitioner's Counsel only about 4 to 5 Board of Governors objected to the minutes as circulated by the 4th respondent. In other words the majority of the members accepted the minutes as circulated by the 4th respondent. Hence it should be presumed that the majority of the members accepted the minutes recorded as correct. At any rate, the statements of the parties are made on oath against oath. Hence, it is well settled principle that disputed questions of facts cannot be decided by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
129. Writ Petition No.8391/97 is filed as a public interest litigation by Mr. Diddi Rambabu, who claims to be State Convenor, Backward Class Cell, Andhra Pradesh Youth Congress Committee, seeking implementation of the rule of reservation in favour of backward classes students in matters of admission to various classes in public schools. Counsel for the society strenuously contended that the petitioner has no locus-standi to file a writ petition as the children of the petitioner arc not seeking admission in any of the classes of the Public Schools. I have no hesitation to reject the contention of the Counsel for the Society.
Public interest has come stay in India. We reached a stage that unless the well meaning people use this weapon to expose the misdeeds of the people in office more so when protection to State properties is at peril. I feel a stage has reached that one need not feel surprised even if a person produces an order from the Government that the historical monuments like Charminar or Salarjung Museum are sold by the Government to him. That is the degeneration the executive has reached. The very case on hand is a classic example of that nature. A senior officer of the cadre of Educational Secretary, while heading the Board of Governors in whom the administration of the affairs of the School vested has taken a stand that the public school is a private school and the Government has no control over the affairs of the school, as such the Government cannot compel the Society for implementation of the rule of reservation in favour of backward classes till this batch of cases are filed. Very few parents of the backward class students approached the Court and when they could not get interim orders they were disheartened and they were losing all interest in adjudication of the dispute. With the result for long 20 years the so-called respectable people of the Society could successfully preempt the constitutional mandate from being implemented. Even today, if this public interest has not been filed their writ could have run for many more years. Further these individuals tried to knockaway the property by contending that the Govt. is in no way connected with administration of the affairs of the society. Accordingly, the objections raised by the Counsel for the Society are rejected.
130. In the light of the findings recorded in Writ Petition No. 18304/97, this writ petition has to be allowed with costs. Advocate's fee Rs.5,000/-.
131. Last but, not the least, I have clearly pointed out how these respectable people not only went on swearing to false affidavits in judicial proceedings to suit their convenience but also succeeded in making the Government officials ineffective in discharge of their duties.
The conduct on the part of these individuals is nothing but acting against the interest of the society as well as the Government. As stated supra, most of the records of the school are not traceable and if the school continues in the hands of these individuals, there is no safety for the public properties and the school. In fact, the Council for the Indian School Certificate Examinations was recognised by the Administrator of the Union territory of Delhi under the provisions of the Delhi School Education Act, 1973 and in the said Act there is no prohibition for the State or the Central Government to run the school and seek affiliation to ISCS. Under Chapter (VII) of the Act the management of the schools can be taken over by the Administrator in the interest of good education. In fact, similar provisions exist in Andhra Pradesh Education Act also. Hence, the Government should think over the ways and means to protect the properties and the heritage of the school by taking over the management and set right the perversities brought into existance by these so-called respectable persons or to appoint an officer of known integrity, not amenable to the threats of these individuals as Administrator to administer the schools. The Government should also initiates a full fledged enquiry into the affairs of the school to know the ground realities which are not within the knowledge of the government for several years which might not have seen the light of the day, as governmental representatives are under the impression that they are continuing as Directors at the mercy of these individuals.
132. The Government should take immediate action to get the entry in the adangals rectified, in particular the column relating to pattedar by following the procedure prescribed under law and also think of initiating disciplinary proceedings against the official who made the entries in the adangals.
133. In the result, Writ Petition No.8391/97 is allowed with costs. Advocate's fee Rs.5,000/-and Writ Petition Nos. 18304, 567 and 8362/ 1998 are dismissed with costs. Advocate's fee Rs.5,000/- in each of the writ petitions.
134. Before parting with the case I would like to place the dirty tricks played by the petitioners to see some how the cases arc taken out from my list and to pre-empt me from hearing the case.
135. Writ Petition No.8391of 1997 came up for admission before me on 24-4-1997 and by order of even date I directed the petitioner to implead, the Board of Governors of the society as party respondents. On 2-5-1997 while adjourning the matter to 7-7-1997 I directed the Chairman of Board of Governors to file counter as to why the said G.O. is not being implemented all these years insofar as it relates to backward class students and thereafter, I left for States to undergo by-pass surgery.
136. When the matter is specifically adjourned to 7-7-1997 somehow the writ petition came up for admission before my learned Brother Justice Syed Saadatulla Hussaini on 9-6-1997 and my learned brother seemed to have directed the Registry to post the matter before me on 7-7-1997 as directed earlier. Perhaps having failed to their attempt to take out the case from my list, the Counsel for the society, Mr. Ravi Chander addressed a letter to the Registrar (Judicial) stating that the Writ Petition is covered by a Judgment of Division Bench of this Court consisting of Justice Linga Raj Rath and Justice C.V.N Sastry, and requested the office to post the above Writ Petition for orders before the bench on the next day. To the misfortune of these individuals that effort has also aborted. Ultimately the Writ Petition came up for admission before me on 17-7-1997 once again. On 17-7-1997 I directed the Chairman of the Board of Governors to file his counter and also directed the Government Pleader to find out the stand of the Government. At that stage, the Secretary to Government, Education Department, in his letter No.20839-A/Prog.I/ 97 Edn. dated 26-7-1997 directed the society to implement G.O.Ms.No,697 scrupulously and also the rule of reservation in admission in respect of backward class students. Counsel appearing for the society has taken one week's time to examine whether the provisions of the A.P. Education Act are applicable to the Hyderabad Public School or not as its students are appearing for I.C.S.E. examinations and thereafter he filed Writ Petition No.18304/1997 (hereinafter referred to as the 'Society's Writ Petition') questioning the said letter and this Court while admitting the Writ Petition by order dated 8-8-1997 suspended the order of Government. Having cane to know of the said writ petition I directed the office to post this writ petition along with Writ Petition No.8391 of 1997 after obtaining the orders of the Hon'ble Chief Justice. By order dated 10-2-1997 1 directed the Government to make its stand clear with regard to the affairs of the Public School right from the date of abolition of Jagirdari administration till the date of formation of the society for management of the Public School affairs at Begumpet and at Ramanthapur.
137. Just before commencement of the arguments in these cases the society filed W.P.M.P.No.39446 of 1997 requesting me not to hear the case and post before some other learned Judge. The Counsel met me in the chambers with that request, the reason being that as a Counsel I filed several writ petitions questioning the non implementation of reservations in favour of B.C. students and I collected voluminous documentary evidence to prove that the School is a Government School. By that time the issue of non-implementation of reservation receded back in my mind and I was thinking how to protect the public property worth more than 500 crores from these unscrupulous people more so in the absence of the relevant files in the Government Offices and in the light of confessional statements made by the officials of the Government, that the Government has nothing to do with the affairs of the School. Knowing the capacities of these individuals in getting favourable orders by misleading the Court, I made it clear to the Counsel that I am not going to post this case before some other Judge and I would like to hear the case myself as it is always open to the aggrieved party to carry the matter in appeal if necessary by attributing mala fide to me. Thereafter the Counsel did not press for orders on the petition.
138. On 1-1-1998 I passed two orders, one directing the sub-Court to search for the records relating to the registration of the society which were submitted in Court in O.S.No.391/68 and submit the same and the other one directing the University to produce the file relating to the lease of land for establishment of the Hyderabad Public School at Ramanthapur and posted the matter on 19-1-1998. Questioning that order the Society filed a Writ Appeal No.48/1998 by contending that this Court cannot make a roaming enquiry with regard to title to the land in the writ petition and the records sought for have no direct relation with the issue involved in the writ petitions. However, the Writ Appeal seemed to have been dismissed by the Division Bench consisting of Hon'ble Chief Justice and Justice P. Venkatarama Reddi. Alter dismissal of the Writ Appeal the society filed xerox copies of some documents. But no information was furnished with regard to the most important and relevant documents by the Public School. At the same time two more writ petitions were filed and got entire process of admission stayed in the light of the decision taken by the Board of Governors at their meeting held on 19-1-1998 to implement reservation in favour of B.C. students. This is how they tried to play hide and seek game even in these judicial proceedings