Andhra HC (Pre-Telangana)
The Govt. Of A.P., Rep. By Its Secretary, ... vs G.V.K. Girls High School, Rep. By Its ... on 6 August, 1996
Equivalent citations: 1996(3)ALT820
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT P.S. Mishra, C.J.
1. The Government of the State has invoked Clause 15 of the Letters Patent of the Court and preferred the instant appeal against the Judgment in W.P. No. 15879 of 1990 holding, inter alia, that the petitioner-respondent is entitled to the arrears of Grant-in-Aid and in its case, the Government Order in G.O.Ms. No. 138 cannot be given effect to. The above Government Order has been issued in the circumstances which are disclosed by the following facts:
By G.O.Ms. No. 347 dated 1-8-1986, the petitioner-respondent-school was admitted to Grant-in-Aid with effect from 1-9-1985 and an amount of Rs. 98,400/- with effect from 1-9-1985 to 28-2-1986 was released by the appellant herein as Grant-in-Aid. The Grant, however, was stopped and as there were complaints of misuse of the Grant-in-Aid, the appellant appointed a High Level Committee by G.O. Rt. No. 220 dated 24-2-1988 to go into the irregularities committed by various institutions and misuse of the Grant-in-Aid by them. Before, however, the Committee could inquire and submit its report, Andhra Pradesh Private Educational Institutions Grant-in-Aid (Regulation) Act, 1988 was brought into effect on 28-8-1988 and the Committee appointed in G.O.Rt. No. 220 dated 24-2-1988 was given statutory recognition. The Committee submitted its recommendations and the Government, pursuant to the Report of the Committee, issued G.O. Ms. No. 326 dated 17-10-1989 admitting Grant-in-Aid to various institutions mentioned in the Annexure appended to the Government Order. While admitting these institutions to Grant-in Aid, the Government in paragraph 8 of its order stated: "regarding payment of arrears to the schools now admitted to Grant-in-Aid, orders will be issued separately. The Government then issued G.O. Ms. No. 138 dated 25-4-1994 conveying its decision that no arrears would be paid to the educational institutions which were admitted to Grant-in-Aid with effect from 1-11-1989 vide G.O. Ms. No. 326 dated 17-10-1989. Aggrieved by the said Government Order, the petitioner filed the present writ petition. The main stand, however, opposing the writ petition on behalf of the appellants has been that the petitioner-respondent has no right for the Grant-in-Aid. Various provisions of the Act are referred to and it is contended that since, as a consequence of the enquiry, the petitioner-respondent-institution was found fit for grant of Grant-in-Aid and the Government acknowledged the recommendation in G.O. Ms. No. 326 dated 17-10-1989, the aid, if any, would be payable from the said date only. Learned single Judge has gone into various provisions of the Act as well as the contents of various Government Orders issued from time to time and has taken notice of G.O. Ms. No. 138 dated 25-4-1994 in particular in which it is stated that it was on account of the present financial position of the State Government that decision was taken not to pay the arrears. He has, for the reasons as follows, found in favour of the petitioner-respondent:-
"An educational institution has no right to demand that the Government should admit the institution to grant-in-aid; it is within the discretion of the Government to admit an institution to grant-in-aid provided, the institution fulfils the conditions laid down in the Education Act of 1982. Once the Government exercises its discretion and admits an institution to grant-in-aid on the ground that it has fulfilled the conditions laid down under the Education Act of 1982 the right gets crystalised into a statutory right enforceable in a court of law. However, the said right is subject to the power of the Government to cancel if any one of the conditions, subject to which the institution was admitted to grant-in-aid, is violated. This power is exercised by the Government by appointing the High Level Committee, under G.O.Rt.No. 220 on receipt of complaints that various institutions which were admitted to grant-in-aid violated and misused the grant-in-aid. The Committee was given statutory recognition by Act of 1988 and under the 1988 Act, the admission to grant-in-aid is subject to the recommendation of the High Level Committee. The Act of 1988 also maintains that an institution will be admitted to grant-in- aid provided it fulfils the condition of the A.P. Education Act of 1982. If the recommendation of the High Level Committee is in the negative, then the institution which was admitted to grant-in-aid earlier would not be entitled to the grant-in-aid and it would not be admitted to grant-in-aid. If the Committee recommends/makes a positive recommendation, the institution would not only be entitled to the grant-in-aid and the statutory right accrued under the G.O.Ms. No. 347 admitting the institution becomes a vested right with effect from the date on which the G.O.Ms. No. 347 was issued which can be annulled only for violation of the condition subject to which that institution was admitted to grant-in-aid, but not on the ground mat the financial condition of the Government does not permit. Further, Section 42 of the A.P. Education Act provides for setting apart a sum of money for the grant-in-aid, it is in the nature of annual budget allotment towards grant-in-aid. Once an allotment is made in the budget, the arrears of grant-in-aid have to be adjusted from out of the allocation and Section 42 cannot be invoked to avoid payment of arrears which are due to the educational institutions. These arrears which have accrued to the petitioner by virtue of the earlier G.O. cannot be stopped under the Act as there is no negative recommendation by the Committee appointed under the Act to go into the irregularities committed by the institutions. Therefore, institutions cannot be deprived of their right to get grant-in-aid on the ground that the economic capacity of the Government does not permit. At the most, the Government may defer the payment or release the amount of arrears in instalments. As stated in the earlier paragraphs, the right of the petitioner to get grant-in-aid will accrue, provided the conditions mentioned in the A.P. Education Act, 1982 are satisfied. On being satisfied, the G.O. was issued admitting the institution to the grant-in-aid and there is no negative recommendation by the Committee. In view of the above, the petitioner is entitled to the arrears of grant-in-aid and the decision in G.O.Ms. No. 138 cannot be given effect to."
Instead of, however, assailing the above on grounds of any error of law or any such mistake that would render the impugned Judgment illegal, or of any law, the appellant herein has come forward with A.P. Act No. 34 of 1995 stating, inter alia, as follows:
" Whereas in G.O.Ms. No. 326, Education, dated the 17th October, 1989 orders were issued admitting certain Educational Institutions recommended by the High Level Committee to grant-in-aid with effect from the 1st November, 1989, subject to the fulfillment of certain conditions specified therein;
And whereas in the said G.O.Ms. No. 326, Education, dated the 17th October, 1989 no specific commitment was made that arrears of grant-in-aid would be paid but it was only mentioned that separate orders will be issued in regard thereto;
And whereas, vide G.O.Ms. No. 178, Education (SSE. 1) Department, dated the 23rd July, 1990 certain schools were admitted to grant-in-aid with effect from 1st November, 1989, subject to certain conditions specified therein;
And whereas, in G.O.Ms. No. 138, Education, (PS. 2) Department, dated the 25th April, 1994, orders were issued to the effect that no arrears of grant-in-aid to any of the Private Educational Institutions admitted to grant-in-aid with effect from the 1st November, 1989 shall be paid an these orders were in accordance with the right reserved by the Government in G.O. Ms. No. 326, Education, dated the 17th October, 1989, to take a separate decision with regard to the payment of arrears of grant-in-aid;"
as the reason for the enactment called, 'A.P. Educational Institutions Grant-in- Aid (Regulation) Supplementary Provision Act' which has been proclaimed to have come into force with effect from 17-10-1989 and provides in Section 2 thereof as follows:
"Not with standing anything contained in any Judgment, decree or order of any Court or authority or any order issued by the Government or any authority subordinate to the Government, no arrears of grant-in-aid shall or shall ever be deemed to be payable to any private educational institution admitted to grant-in-aid in pursuance of G.O.Ms. No. 326, Education (SSE. 1) Department, dated the 17th October, 1989 and G.O.Ms. No. 178, Education (SSE. 1) Department, dated the 23rd July, 1990 for the period between the 1st September, 1985 and 31st October, 1989 and accordingly.
(a) no suit or Ors. proceeding shall be maintained or continued in any court against the Government or any person or authority whatsoever for the payment of any arrears of grant-in-aid for the said period; and
(b) no court shall enforce any decree or order directing the payment of any arrears of grant-in-aid."
In State of Haryana v. Karnal Co-op. Farmers Society Ltd., , the Supreme Court has taken stock of various authorities and pronouncements on the subject of validating legislations and legislations which purport to annul any judgment or decree of the Court and pointed out that a Legislature while has the legislative power to render ineffective the earlier judicial decisions, by removing or altering or neutralising the legal basis in the unamended law on which such decisions were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by legislature under our Constitution. The Supreme Court, however, has referred to, in its Judgment, the various pronouncements in the judgments of the Supreme Court touching the above, such as in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality ; Government of A.P. v. Hindustan Machine Tools Ltd., ; Misrilal Jain v. State of Orissa, (1977) 2 SCC 212 and I.N. Saksena v. State of M.P., and explained whatever little doubt is created to the above by the judgment of the Supreme Court in Sunder Dass v. Ram Prakash, by stating that the same sustains the above principle and does not in any manner go against the above principle. In G.C. Kanungo v. State of Orissa, and in S.R. Bhagwat v. State of Mysore, , the Supreme Court has reiterated the above and pointed out that legislative power of the State Legislature cannot be used to nullify or abrogate a judicial power. In the latter judgment, the Supreme Court has dealt with a case of an Act which purported to nullify the judgment of the Court by an amendment in the Act with retrospective effect. The latest in the series of the judgments on the subject are one in P.V. Murali v. Andhra Pradesh, (1996) 1 SCC 298 and Another in Indian Aluminum Co. v. Kerala, (1996) 1 SCC 780 = 1996 (2) ALT 32 (D.N.). Tests finally culled out are as follows: (i) whether the legislature enacting the validating Act has competence over the subject matter; (ii) whether by validation, the 1legislature has removed the defect which the Court had found in the previous law; and (iii) whether the validating law is inconsistent with the provisions of Chapter III of the Constitution. If these tests are satisfied, the Act can be held to be valid. Otherwise, it will be something which Judiciary has to do, which the Legislature would be doing and it is impermissible.
2. When we look to the Amendment Act with the above principle in mind, we have no hesitation in holding that the enactment has in no way attempted to remove the defect in the earlier Government Orders or the enactment which has rendered its executive action invalid and the Court has found fault on that score. It is out and out a legislation to nullify the instant judgment or any judgment, decree or order of any Court or Authority by a declaration in the shape of a decree of the Legislature. The same, in our view, cannot be sustained and has to be held to be invalid and beyond the competence of the State Legislature. Learned Advocate-General has addressed us at length on the desirability of the Court entering into the financial aspect of the grant and determining the issue of entitlement of Grant-in-Aid by the petitioner-respondent. We, however, do not find anything of substance in what is contended against the finding recorded by the learned single Judge. The law on the subject is well settled that Grams-in-Aid cannot be denied on ground of paucity of funds (see State of Maharashtra v. Manubhai Pragaji Vashi, and State of H.P. Recognised and Aided Schools Managing Committees, (D.N.). We accordingly declare Act 34 of 1995 to the extent it has purported to set aside the impugned Judgment, as ultra vires and thus not binding upon the petitioner-respondent. The impugned directions shall be given effect to not with standing Act 34 of 1995. We find no merit in the appeal.
3. The appeal is dismissed, but without costs