Andhra HC (Pre-Telangana)
N. Sumathi Reddy, Chairman, Zilla ... vs Government Of Andhra Pradesh Rep. By Its ... on 30 August, 1996
Equivalent citations: 1997(3)ALT469
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT Lingaraja Rath, J.
1. This writ petition is directed assailing the vires of Rule 3 of the Andhra Pradesh Direct Recruitment to Posts of Teachers (Scheme of Selection) Rules, 1994. It is submitted before us that constitution of a separate selection body under the Rules for selection of teachers to posts under the control of Zilla Parishads, Mandal Parishads and Gram Panchayats are contrary to the provisions of Article 243-G of the Constitution brought in by the Seventy-third Amendment, read with Schedule Eleven of the Constitution of India as also the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 (Act No. 13 of 1994). The argument proceeds to stress that the scheme of Article 243-G is for entrusting self-government powers to the Panchayat bodies which includes the power to appoint persons to the posts under their control and hence the rule could not have been made to deprive the Panchayat bodies of their power to select their own teachers. Article 243-G (b) calls upon the State to make laws for the implementation of schemes for economic development and social justice as may be entrusted to the Panchayats including those in relation to the matters listed in the Eleventh Schedule and since items 17 and 18 of the Eleventh Schedule relate to "Education, including primary and secondary schools" and "Technical training and vocational education", the State cannot make a law, that too by a subordinate legislation, which is contrary to the scheme of Article 243-G of the Constitution. The rule is also contrary to the scheme of Art. 40 of the Constitution which expects the State to take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
2. The impugned rule has been framed under the provisions of the Andhra Pradesh Education Act, 1982 (Act No. 1 of 1982) and A.P. Panchayat Raj Act, 1994 (Act 13 of 1994). It is well settled in law that vires of any legislation can be questioned on only two grounds, the first being legislative incompetence to legislate on the subject-matter, and the second that the impugned law violates either any Fundamental Rights or other Constitutional Rights. The position was made clear even in a recent decision of the Supreme Court in State of A.P. v. Mc Dowell & Co., (D.N.)
3. So far as the present rule is concerned it is a subordinate legislation and hence it can be declared ultra vires if it is found to be not sanctioned under the legislation under which it is framed or that the legislation itself is beyond legislative authority. This ground of disqualification would relate to ground number one as referred to above. There is no argument before us that the rule is not available to be made under either of the Acts and is ultra vires of any of them. It is also not available to be argued that the rule is ultra vires of Article 243-G of the Constitution of India read with the other constitutional provisions referred to above since if the rules are sanctioned under either of the Acts, then unless the Acts themselves are ultra vires because of their being contrary to any provision of the Constitution or there being no legislative authority for their enactment, the rule framed under them cannot be declared ultra vires. There is no argument before us that either of the Acts are in any way ultra vires. This petition is to fail on the simple ground hence of being perfectly competent to be framed under intra vires Acts.
4. That apart, Article 243-G read with Article 40 and the Eleventh Schedule are enabling provisions for the legislature to frame laws in pursuance of the objectives of empowering the Panchayat institutions to function as units of self-government which would include Education, including primary and secondary schools and Technical training and vocational education. As to actually what extent of powers would be given to the Panchayats in regard to that is a, matter for the legislature to decide. If a law is made conferring such powers upon the Panchayat institutions, as are pleaded as necessary in this writ petition, probably no exception can be taken that such powers have been conferred upon them. But it is not available to be argued, if such powers are not given, that there must be legislation conferring such powers. It is rather too well settled in law that Courts cannot issue directives to the legislature to make any particular law. What law is to be framed and whether time is ripe for framing of such laws are entirely within the discretion and decision of the legislature which is not amenable in that regard to supervision of the Courts.
5. Education is a concurrent subject under Entry 25 in List III of the Seventh Schedule. The powers of the legislature are plenary, in respect of any entry, to legislate, subject to the only rider that it must not transgress any Fundamental Right or any other Constitutional Right. Legislation in respect of education would include the right to legislate to maintain level uniformity of educational standards including the standard and excellence of the teachers in all educational institutions of the State for which an uniform selection process of the teachers in any class of educational institution may be legislated upon. Even if a law would have been framed granting such rights of self-governance in the matters of education to the Panchayat institutions, yet it is perfectly conceivable that the right of selection of teachers including the fixation of their qualifications is retained by the Government with a central body. Very many such laws as e also existing. The Indian Medical Council is vested with the powers under the Indian Medical Council Act 1956 (102 of 1956) to lay down the qualifications of the teachers in Medical Colleges of India including the conditions according to the teachers therein are to be promoted. It is also conceivable that the Parliament may pass a law under Entry 25 providing that all teachers in the Union, in respect of educational institutions or any class of educational institutions, shall be selected by a Central Body set up under the Central Act and be allotted to the different institutions in different States. Such an Act cannot be said to impinge upon the legislative powers of the State, which is certainly entitled to a higher status than the bodies of local self-governments.
6. Even Section 192 of the A.P. Panchayat Raj Act, 1994, which deals with powers and functions of the Zilla Parishads, says that the Zilla Parishad shall exercise such powers and perform such functions as may be entrusted to it by rules made in that behalf with regard to the subjects enumerated in the First Schedule and that shall also have the powers a list of which is given in the Section, which includes in Entry (XV) thereof, the power to establish, maintain, or expand secondary, vocational and industrial schools. The Schedule-I of the Act framed in relation to the Section has Entries 17 and 18 which are the same as Entries 17 and 18 of the Eleventh Schedule of the Constitution of India. In the context it would hence mean that the Zilla Parishad is to exercise such power's in respect of the subject in the Schedule-I in respect of which law is framed by the legislature under Article 243-G of the Constitution of India in relation to the Eleventh Schedule to which we have already referred and explained.
7. The A.P. Education Act, 1982 and the A.P. Panchayat Raj Act, 1994 being both Acts of the same legislature, one of them cannot be treated as ultra vires of the other. Such a concept is wholly misconceived.
8. We do not find any merit in this writ petition which is accordingly dismissed at the stage of admission.