Andhra Pradesh High Court - Amravati
S.Srinivasulu, Spsr Nellore Dist. vs The State Of A.P.,Hr.Edn.,Hyd., 5 Otrs. on 6 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.1421 of 2016
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) The petitioner - S.Srinivasulu, working as Night Watchman in Sri Sarvodaya College, Nellore, filed this writ petition under Article 226 of the Constitution of India seeking writ of quo-warranto to declare that the respondent No.5 has no competence to hold the office of the Correspondent to the respondent No.6 college as per Section 4 (5) (a) (b), 6 (c) (i), 11 and proviso to clause (2) of Section 29 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short "the Act") and to issue appropriate order or direction more particularly one in the nature of writ of mandamus declaring the proceedings issued by the respondent No.3 in Rc.No.137/Admn.II-2/2013, dated 09.04.2013 as illegal and contrary to Section 4 (5) (a) (b), 6 (c) (i), 11 and proviso to clause (2) of Section 29 of the Act and consequently set aside the proceedings of the respondent No.5 in Rc.No.SS/W/2015 dated 03.12.2015.
The petitioner is working as a Night Watchman in respondent No.6 - college, whereas respondent No.5 is working as Executive Officer Grade-II, Vavveru Group of Temples, Butchi Reddy palem Mandal, SPSR Nellore District. In the year 1946 a group of people in Nellore established a charitable institution by name Sri Vakati Sanjeevasetti Sri Sarvodaya Society bearing Registration No.2211/1946 and also established Sri Sarvodaya College at Nellore in 1972 which is aided by the Government of Andhra Pradesh. Since 2 HACJ & MSM,J WP_1421_ 2016 it is a charitable institution, the provisions of the Act are applicable to the management as well as administration of Sri Sarvodaya College. According to Section 2(4) of the Act charitable institution means any establishment, undertaking, organisation or association formed for charitable purpose, it includes relief of poverty or distress, education etc. As per Section 6 of the Act, the respondent No.4 shall prepare separately and publish a list of charitable institutions and endowments depending on its income, the Sarvodaya College is a charitable institution falls under Section 6 (c) (i) of the Act.
As per Section 5 of the Act and for the purpose of it, the respondent No.4 with the previous approval of the Government divide the State into regions, divisions and sub divisions and each sub division shall be in the charge of an Assistant Commissioner, and Section 4 (5) of the Act prescribes the qualification to the post of Assistant Commissioner, according to it a person to be appointed as Assistant Commissioner shall be one who has been for not less than three years as an advocate of High Court of Andhra Pradesh or who has been holding for not less than three years the post of Superintendent in the endowment department or the post of an Executive Officer of prescribed grade by promotion.
According to Section 11 of the Act, every Assistant Commissioner shall within the sub division in his charge, exercise the powers conferred on, and perform functions entrusted to, an Assistant Commissioner as such by or under The Act, in respect of all institutions and endowments included in the list 3 HACJ & MSM,J WP_1421_ 2016 published under clause (c) of Section 6 of the Act.
Chapter III of the Act deals with administration, management of Charitable or Hindu Religious Institutions and Endowments, according to Section 29 of the Act, there shall be an Executive Officer for every charitable or religious institution or endowment in case of other institutions included in the lists published under clauses (a) and (b) of Section 6 of the Act, but in respect of charitable or religious institutions having income of less than 2 lacks per annum and included in the list published under clause (c) of Section 6, it shall not be necessary to appoint an Executive Officer, and the proviso to clause (2) of Section 29 of the Act, it shall be competent for the Commissioner to appoint a Deputy Commissioner or an Assistant Commissioner as an Executive Officer to any institution basing on annual income of such institution. The rules were framed for Non Gazetted Subordinate service in Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Subordinate Rules vide G.O.Ms.No.262, Revenue (Endw.I) Department, dated 20-05- 2002 wherein 3 categories of Executive Officers were included as E.O. Grade-I, Grade-II and Grade-III and Executive Officer Grade-I is the Feeder Category Post to the post of Assistant Commissioner as per the A.P. Charitable and Hindu Religious Institutions and Endowments Service Rules, 2002 issued in G.O.Ms.No.245, Revenue (Endts.-I) Department, dated 08-05-2002. From the above it is clear, the Assistant Commissioner under the Act is competent to held the office of Charitable Institutions fall under 4 HACJ & MSM,J WP_1421_ 2016 Section 6 (c) of the Act.
The respondent No.3 herein issued orders in proceedings Rc.No.137/Admn.II-2/2013, dated 09.04.2013 for appointment of respondent No.5 as Correspondent of Sri Sarvodaya College, Nellore. The respondent No.5 is an Executive Officer Grade-II in endowment department which is not a feeder category post to the post of Assistant Commissioner as per the Act, the respondent No.5 ought not to be appointed as correspondent of Sarvodaya College, Nellore and his appointment is illegal, and in violation of the provisions of the Act.
It is also alleged that respondent No.5 abused his official position; despite complaints made against him to the Higher authorities of the department, no action was taken against him.
Respondent No.5 initiated disciplinary proceedings against the petitioner and as many as 13 charges were framed against him vide proceedings Rc.No.SS/NW/2014, dated 03.04.2014, which are trivial in nature, the charge No.1 to 3 are pertaining to the year 2007 which mostly on the allegation of dereliction of duty and negligence in performing duty, charge Nos.4 to 8 are pertaining to application of casual leave without permission and the reply submitted is not satisfactory and the charge Nos.9 to 13 are relating to absence at 4.00 a.m. on 05.01.2014 and 8.00 p.m. on 09.02.2014 and the reply to it is not satisfactory. During pendency of the enquiry, respondent No.4, placed the petitioner under suspension, later suspension was revoked. The petitioner filed a Writ Petition No.13933 of 2014 and the same was disposed of by the orders dated 29.04.2014, wherein the Court directed the respondent authorities to 5 HACJ & MSM,J WP_1421_ 2016 conclude the enquiry as expeditiously as possible. Respondent No.4 by his order dated 25.05.2014 appointed Sri M.T.Nirmal Kumar as convener for the enquiry committee and he was directed to submit a report for further action.
The enquiry committee has submitted a report to the respondent No.5, and by a letter dated 19.06.2014 the petitioner requested the respondent No.5 to furnish a report of the enquiry committee but, the respondent No.5 declined to issue the same vide orders dated 20.06.2014, and the respondent No.5 vide proceedings his Rc.No.SS/NW/2014, dated 20.06.2014 issued orders, imposing punishment of withholding two increments with cumulative effect. Upon imposing punishment, the respondent No.3 vide orders in proceedings No.520/Admn.II/20 14, dated 30.07.2014 directed the Regional Joint Director, Collegiate Education, Guntur to conduct enquiry into the matter and submit report. Thereafter, he conducted the enquiry. Since the report of the enquiry committee has not been furnished to him, he requested the respondent No.5 to furnish the same.
It is further contended that during enquiry, teaching and other staff expressed satisfaction about the duties performed by the petitioner and charge Nos.2 to 7 and 9 to 11 are minor in nature and there is no sufficient proof to deny the explanation submitted by the petitioner and there is no witnesses for charge No.12 and no police case was registered and the charge Nos.1 and 13 are relating to leaving the residential quarter. The Regional Joint Director, Guntur submitted report that the charges were not proved, however recommended for modification of punishment instead of withholding of two increments with cumulative effect as withholding of two 6 HACJ & MSM,J WP_1421_ 2016 increments, without cumulative effect, thereupon, the respondent No.3 issued orders in Rc.No.520/Admn.II/2014, dated 23.06.2015, whereby respondent No.5 was directed to reduce the punishment.
In view of the report of the Regional Joint Director, Guntur, the punishment imposed by the respondent No.5 against the petitioner vide proceedings Rc.No.SS/NW/2014, dated 23.06.2014 is vitiated by arbitrariness and capricious and the order of the respondent No.2 in Rc.No.520/Admn.II/2014 dated 26.03.2015 is without jurisdiction and contrary to the rules made in A.P.Education Act, 1982 and the same was challenged by filing a writ petition. While so, respondent No.5 issued charge memo vide proceedings in Rc.No.Ss/Night Watchman/2014, dated 02.09.2015 whereunder 7 charges were framed, in charge No.1 it is alleged that on 28.07.2014 at 04.00 p.m. when the Correspondent of the college came to the college, the day watchman failed to stay, in the charge No.2 it is alleged that the petitioner failed to attend the duties properly, in charge No.3 it is alleged that the petitioner failed to stay at Gate being a watchman.
Petitioner submitted his explanation, and having dissatisfied with the explanation, a committee was constituted to conduct enquiry into the charges, thereafter, petitioner has attended the enquiry and the Committee has submitted its report dated 28.10.2015, but by observing that the said report is in sufficient, respondent No.5 directed the enquiry committee to submit a detailed report vide his proceedings dated 02.11.2015. On 07.11.2015, the respondent No.5 issued notice to show cause as to why suitable action should not be initiated against the petitioner. Reply was submitted by the petitioner to the show cause notice on 24.11.2015 but 7 HACJ & MSM,J WP_1421_ 2016 punishment was imposed withholding one increment with cumulative effect vide proceedings Rc.No.SS/W/2015, dated 03.12.2015 by the respondent No.5. The negligence of duties alleged against the petitioner by the respondent No.5 is only to cause irreparable loss to the petitioner.
It is further alleged that the respondent No.5 is not competent to hold the office of correspondent of respondent No.6 college and his appointment is without authority of law and the same is illegal, irregular and violation of the provisions of the Act and prayed for the relief stated above.
Respondent Nos.5 and 6 filed detailed counter denying the material allegations interalia contending that the petitioner is not entitled to claim any of the reliefs claimed in the writ petition and the present writ petition is filed due to enmity to avoid the charges and enquiry, thereby to achieve his goal. Respondent No.5 is appointed in accordance with provisions of the Endowments Act. It is specifically contended that the annual income of the institutions from 2 lakhs to 5 lakhs, Grade-III Executive Officer will look after the affairs of the temples under the supervision of the Assistant Commissioner. If the income is between 5 lakhs to 25 lakhs, Grade - II Executive Officer will supervise the temples under the direct administrative control of Deputy Commissioner, and if it is between 25 lakhs to 50 lakhs, Grade - I Executive Officer will be under the direct administrative control of Regional Joint Commissioner, Endowments. If it is between 50 lakhs to one Crore, the Assistant Commissioner will be appointed as Executive Officer to supervise the temples, who is under direct control of the Commissioner of 8 HACJ & MSM,J WP_1421_ 2016 Endowments.
Respondent No.6-College is having its annual income between 14 lakhs to 15 lakhs, as such Grade-II Executive Officer is sufficient. Respondent No.5 is appointed as Executive Officer taking into consideration of his eligibility and qualifications, since, the respondent No.5 is a Postgraduate in Science and Graduate in Education and earlier also he worked as Correspondent of the college in 2009 and he is direct recruitee as Executive Officer Grade -III and later promoted as Grade-II, as such his appointment is in accordance with law.
The petitioner misconstrued the concept of appointment of Assistant Commissioner as well as "preparation and publication of list of charitable and religious institutions and endowments on the basis of income" under Section 6 of the Act and the Rules namely A.P. Charitable and Hindu Religious Institutions and Endowments Service Rules, 2002 published under G.O.Ms.No.245, Revenue (endts-I) Department, dated 08.05.2002.
It is also contended that in view of Section 29 of the Act, the Executive Officer Grade - I to III are entitled to look after the affairs of the temples and the Commissioner of Endowments is the competent under the Proviso to Section 6 to "alter the classification assigned to an institution or endowment in the list and enter the same in the appropriate list in case the annual income of such institution or endowment calculated exceeds or falls below the limits specified in clause (a) or clause (b) or clause (c) for three consecutive years."
The Assistant Commissioners who were not able to run the college and also number of complaints on this aspect and hence about 17 Correspondents who worked in the College out of which about 10 Assistant Commissioners 9 HACJ & MSM,J WP_1421_ 2016 were not able to look after the administration of the college and its affairs in view of their preoccupation in the Temples and administration work, about 7 Executive Officers from grade -I to III were appointed from time to time and during their tenure, there were no complaints against them. Therefore, the appointment of respondent No.5, who is highly qualified with teaching experience, is in accordance with law. The petitioner is a chronic litigant and knocking the doors of various forums to avoid the charges framed against him and filing of the present writ petition is one such attempt. Therefore, the petitioner is disentitled to claim any of the reliefs.
Respondent Nos.5 and 6 also specifically contended that aggrieved by the charges framed against the petitioner for his misbehavior in the college, lack of devotion to duty and absent without leave etc., he filed the present writ petition.
As the petitioner was guilty of misconduct, various proceedings were initiated and once in the year 2007, for his misconduct the then Principal after conducting necessary enquiry punished him with "censure" taking a lenient view as the petitioner is having no other source of income and made adverse entries in the Service Register against the petitioner. Again the petitioner was suspended in the year 2014 with 13 charges and enquiry was held. In the enquiry all the charges were proved against the petitioner. He filed W.P.No.13933 of 2014, and this Court directed the respondents to complete the enquiry at the earliest. Based on the enquiry, punishment of stoppage of two increments with cumulative effect was imposed. On appeal, the said punishment was reduced to stoppage of increments without cumulative effect. The petitioner is resorting to this litigation only to avoid different departmental proceedings pending against him 10 HACJ & MSM,J WP_1421_ 2016 and the petitioner is not entitled to claim any of the reliefs since the punishment imposed against him and appointment of respondent No.5 is in accordance with law and prayed to dismiss the writ petition.
During hearing, Sri B.Sesi Bushan Rao, learned counsel for the petitioner contended that since the post of Correspondent is in the cadre of Assistant Commissioner, appointment of respondent No.5, who is Grade-II executive officer is contrary to the purport of Section 4 (5) (a) (b), 6 (c) (i), 11 and proviso to clause (2) of Section 29 of the Act and rules framed thereunder. He further contended that though the respondent No.5 was appointed for a particular tenure, still he is continuing as Correspondent in the institution and his continuation beyond the term is also a grave illegality committed by the respondent No.6 - college. It is also contended that the proceedings initiated against the petitioner are illegal and there is no basis for the conclusions arrived by the enquiry authority and not substantiated by any satisfactory evidence, but still the enquiry officer found the petitioner guilty and imposed penalty and conversion of major penalty into minor penalty i.e. stoppage of two increments without cumulative effect is also seriously affects the rights of the petitioner in long term, thereby the penalty imposed against the petitioner is illegal. Yet another contention of the learned counsel for the petitioner is that the appointment of respondent No.5 is contrary to Section 29 of the Act and Section 22 of the Education Act and prayed to pass appropriate orders as claimed by the petitioner.
Sri M.V.Raja Raam, learned counsel for the respondents, contended that the petitioner is disentitled to claim two reliefs in one writ petition and approaching this Court with a request to invoke extraordinary jurisdiction of judicial review under Article 226 of 11 HACJ & MSM,J WP_1421_ 2016 Constitution of India is nothing but abuse of process of the Court. He further contended that the petitioner has not approached this Court with clean hands and clean heart, but behind approaching this Court there is ugly malice i.e. to avoid the departmental enquiries initiated against him by making serious allegations against the respondents. Therefore, on this ground alone the petition is liable to be dismissed. He also supported the appointment of respondent No.5 on the ground that the average income of respondent No.6 - college is Rs.14,00,000/- to Rs.15,00,000/- per annum. Hence, appointment of Executive officer of Grade - II is sufficient to manage the institution and even otherwise standing at the High Court Bar Association as an advocate is a qualification for appointment as Assistant Commissioner but not for appointment as Correspondent for the charitable institution to manage the affairs of the same. In any view of the matter, entire proceedings are in accordance with law including the enquiry conducted against the petitioner and sentence imposed is also proportionate to the misconduct of the petitioner. Therefore, none of the proceedings are vitiated by any irregularity or illegality. Learned counsel for the respondents, in support of his contentions, placed reliance on the judgments of learned Single Judges of High Court of Andhra Pradesh in "K.Rama Sastry v. Government of Andhra Pradesh1", "S.L.Kameswari v. Government of Andhra Pradesh, Education Department, Hyderabad2" and Division Bench of High Court of Andhra Pradesh in "Pakalapati Satyanarayana Raju v. Government of Andhra Pradesh3" and prayed to dismiss the writ petition.
1 2005 (5) ALD 601 2 1999 (1) ALD 84 3 2001 (5) ALD 478 (DB) 12 HACJ & MSM,J WP_1421_ 2016 Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the appointment of respondent No.5, who is a Grade II Executive Officer, as correspondent to respondent No.6-college is legal?
(2) Whether the Court can interfere with the punishment imposed against the petitioner in the departmental enquiry?
P O I N T No.1:
Undisputedly, respondent No.5 is Grade II Executive Officer, who is Post Graduate in Science and Graduate in Education and he was appointed long ago vide Rc.No.137/Admn.II-2/2013, dated 09.04.2013 as correspondent of respondent No.6-College. The petitioner challenged the appointment of respondent No.5 in the present petition in the year 2016 mainly on the ground that the respondent No.5 is not qualified to be appointed as Correspondent of the respondent No.6-College, which is endowment institution.
The main grievance of the petitioner is that the college is getting annual income of more than Rs.50,00,000/- per annum, therefore such institution has to be managed by Assistant Commissioner of Endowments in terms of Section 6 of the Act, whereas the contention of the respondent Nos.5 and 6 is that the respondent No.6 - college is getting income of Rs.14,00,000/- to Rs.15,00,000/- per annum, therefore, appointment of respondent No.6 as correspondent to respondent No.6-college is in accordance with the provisions of the Act.
13 HACJ & MSM,J WP_1421_ 2016 Section 6 of the Act classified various charitable and religious institutions and endowments. The basis for classification is the income of each institution. Section 6 of the Act, reads as follows:
"6. The Commissioner shall prepare separately and publish in the prescribed manner, a list of,--
(a) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other than maths; whose annual income as calculated for the purpose of income levy of contribution under section 65 [exceeds rupees twenty five lakhs;]
(b) (i) the charitable institutions and endowments;
(ii) the religious institutions and endowments, other than maths;
whose annual income calculated as aforesaid [exceeds rupees two lakhs but does not exceed rupees twenty five lakhs;]
(c) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other than maths not falling under clause (a) or clause (b);
(d) the maths irrespective of the income;
(e) the Dharmadayam irrespective of the income:
Provided that the Commissioner may alter the classification assigned to an institution or endowment in the list and enter the same in the appropriate list in case the annual income of such institution or endowment calculated as aforesaid exceeds or falls below the limits specified in clause (a) or clause (b) or clause (c) for three consecutive years."
The very basis for the claim is Section 4 of the Act, which deals with qualifications for appointment of Commissioner etc. Basing on Section 4 of the Act, the petitioner contended that the respondent No.5 is not eligible to be appointed as Correspondent to respondent No.6- college, whose income is more than Rs.50,00,000/- and the Assistant Commissioner alone is competent to be appointed as Correspondent. According to Section 4 of the Act, a person to be appointed as an Assistant Commissioner, shall be one, who has been for not less than three years as an Advocate of the High Court of Andhra Pradesh, by direct recruitment; or who has been holding for
14 HACJ & MSM,J WP_1421_ 2016 not less than three years the post of Superintendent in the Endowments Department or the post of an Executive Officer of the prescribed grade, by promotion; who has been holding an equivalent post of Assistant Commissioner in any of the charitable or religious institutions or endowments published under Clause (a) of Section 6 including a person in the service of the Tirumala Tirupathi Devasthanams by transfer:
Therefore, based on sub-section (5) of Section 4 of the Act, learned counsel for the petitioner contended that respondent No.6 is endowment or charitable institution notified under clause 6 (a) of the Act and it should be managed by officer in the cadre of Assistant Commissioner. Strangely, none of the parties produced before the Court the notification to decide whether the respondent No.6 is an institution notified under Clause 6 (a) of the Act or under any other groups specified in Section 6 of the Act based on its income. In the absence of proof that the respondent No.6 is an endowment or charitable institution registered under Section 6 (a) of the Act, the contention of the petitioner cannot be accepted that it should be managed by Officer in the cadre of Assistant Commissioner of Endowments. Moreover, at the end of paragraph No.2 of the affidavit, the petitioner contended that the Sarvodaya College is a charitable institution falls under Section 6 (c) (i) of the Act. According to Section 6 (c) (i) of the Act the Commissioner has to publish the list of Charitable Institutions and Endowments based on its income.
Even if the admission of the petitioner made in paragraph No.2 of the affidavit that respondent No.6 is a Charitable Institution falls under Section 6 (c) (i) of the Act is taken into consideration, it need not be managed by the officer in the cadre of Assistant Commissioner. If the said admission is accepted, unless it is shown
15 HACJ & MSM,J WP_1421_ 2016 that the income of the respondent No.6-College is more than Rs.50,00,000/- prescribed under the Act, the appointment of respondent No.5, who is Grade - II executive officer is vitiated on account of disqualification to work as correspondent. Therefore, on the ground of disqualification, writ of Quo-warranto cannot be issued in the present facts of the case.
Learned counsel for the respondents contended that when the Correspondent is appointed exercising power under Section 24 of A.P. Education Act, 1982, in the absence of any specific qualification for such appointment, the same cannot be set aside by exercising power under Article 226 of Constitution of India. He placed reliance on the Division Bench judgment of High Court of Andhra Pradesh in "Pakalapati Satyanarayana Raju v. Government of Andhra Pradesh" (referred supra). In the facts of the above judgment, the petitioner was placed as additional charge of Correspondent by the management and subsequent order of management relieving the petitioner from the additional charge cannot be challenged on the ground that he has no legal right to hold the additional charge, which is only honorary. This judgment has no application to the present facts of the case, but discussed about the duties of Manager and Correspondent in detail. In "K.Rama Sastry v. Government of Andhra Pradesh" (referred supra) Single Judge of this Court had on occasion to deal with the similar situation and held that right to establish educational institution perhaps could be 'occupation' within the meaning of Article 19(1)(g) of the Constitution of India. Be that as it may, a person, who starts an educational institution as a mission for the purpose of charity has also right to nominate his successor, for the founder has an incorporeal transferable right in the educational institution. In the event of any dispute among the rival 16 HACJ & MSM,J WP_1421_ 2016 claimants for such incorporeal rights to manage the educational institution the dispute has to be necessarily resolved in a civil Court. There is always complex and competing oral evidence to be appreciated, and hence it is better the matter is resolved in a Civil Court because the right to the management of an educational institution is a common law right and the jurisdiction of the civil Court in such a case is not specifically ousted. (See: Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma4"). Therefore, the competent educational authority be it DEO, or Regional Joint Director or Director has no competence to appoint management. In the event of a dispute the educational authority has to necessarily await the decision by a competent civil Court as to the right of a claimant to manage an educational institution.
It is clear from the law declared in the above judgment, when there are disputes among the members of the Committee, such disputes have to be resolved in Civil Court, but the DEO or Regional Joint Director or Director will have no jurisdiction except to await till the judgment is pronounced by the competent Civil Court.
Learned counsel for the respondents would draw the attention of this Court to the judgment in "K.Rama Sastry v. Government of Andhra Pradesh" (referred supra), which dealt with the application for change of management in respect of secondary schools and special institutions. In the said judgment, it is held that "the application for change of management in respect of secondary schools and special institutions shall be made to Regional Deputy Director of Public Instruction and in respect of other institutions to the Director of Public Instruction. Likewise, the change of correspondentship can only be effected with the approval of the 4 AIR 1995 SC 2001 17 HACJ & MSM,J WP_1421_ 2016 competent authority. The Director is also empowered to declare any person unfit to hold the post of correspondentship in respect of a college receiving aid and remove correspondent permanently or for a specific period for proven charge of maladministration. An important facet of Grant-in-Aid Code is that the same is applicable for educational institutions other than elementary schools. Be that as it may, the Grant-in-Aid Code provides that the competent authority has to recognise the management either consisting one or more persons or an association and also approve the correspondent appointed by the management. The 'management' and 'the correspondent' of an educational institution are two distinct entities. However, in case the 'management' is only one person, the Code does not prohibit the same person being correspondent also. The Andhra Pradesh (Andhra Area) Elementary Education Act, 1920 provided for better management of elementary education in Andhra Area of State of Andhra Pradesh. Section 3(xii) defined public management as managed by the State Government or local authority and all other managements are private management's. The Act provided for Government contribution and for providing education taxes by local authorities. This Act was amended in 1935, 1939, 1943 and 1946. Section 56 of 1920 Act empowered the State Government to make Rules for declaring the conditions subject to which elementary schools may be admitted to recognition or aid."
Even according to the principle laid down in the above judgment, the competent authority to appoint a person as correspondent is concerned official under the Education Act. In the present case, the petitioner did not challenge the appointment of respondent No.5 as correspondent by the Commissioner was not challenged, only approval is challenged. Approval under Section 24 of 18 HACJ & MSM,J WP_1421_ 2016 Education Act is only a formality and appointing authority is the Commissioner of Endowments. Petitioner challenged the approval given by the competent authority i.e. Commissioner of Collegiate Education for appointing respondent No.5 as correspondent in Rc.No.137/Admn.II-2/2013, dated 09.04.2013, but not his appointment by the Commissioner of Endowments. The principle laid down in the above judgment "K.Rama Sastry v. Government of Andhra Pradesh" (referred supra) is useful only for limited purpose to decide as to who is competent to approve appointment of respondent No.5. The appointing authority is only Commissioner of Endowments, but the Education department is only approval authority. In similar circumstances, learned Single Judge of this Court in "S.L.Kameswari v. Government of Andhra Pradesh, Education Department, Hyderabad" (referred supra) discussed the scope of Section 24 of Education Act and appointment of Correspondent etc. and held as follows:
"A combined reading of all the provisions makes it abundantly clear that management of a private institution by a body of individuals/by an individual is different from the manager to be appointed, by it under Section 24(2) of the Act by the Management. To put it in other way the appointment of manager in relation to a private educational institution solely rests with the management of the institution. If for any reason the competent authority finds that the manager of a private educational institution is declared unfit to hold the management of institution under Section 24(4) of the Act, the competent authority for reasons to be recorded in writing is empowered to declare that person to be unfit to be the manager of a private educational institution and in such an event the management of such institution shall nominate any other person as the manager in his place in accordance with the provisions of subsection (2) of Section 24 of the Act. To put it more clearly, the competent authority has no power to appoint any person as a Manager and it is purely within the realm of the body which owns the school i.e., management of the private educational institution. Under the provisions of the Act he can either accept the nomination or reject the same but he cannot appoint a person of his choice as the Manager of the institution. Hence, it is something to say that a Government employee cannot act as a correspondent and it is something to say that the Government employee
19 HACJ & MSM,J WP_1421_ 2016 cannot be a member of the managing committee or cannot inherit the institution founded by his forefathers. The only inhibition contemplated under Rule 55 of the A.P. Integrated Education Rules is that as long as he is in Government service he cannot act as a Correspondent/Manager of a private institution and it is a known fact that the Government employee will retire from service when he attains the age of superannuation and there is no embargo either in the provisions of the Act or the Rules made thereunder with regard to the management of an educational Institutions, moreso in cases of this nature where the husband of the petitioner inherited the school under a registered Will. But as far as the Correspondent ship is concerned mere is no age limit and he can act as Correspondent as long as he is alive. Hence the inhibition placed in the rule will operate against a person who is in Government employment till his retirement but not against others. To my mind the petitioner's husband cannot act as a Correspondent because of the legal fiction envisaged under Rule 55 as long as he is in service. But his right to nominate a person of his choice under Section 24(2) of the Act cannot be taken away as a clear distinction is made in the Act between the Manager and Management of the Institution. If the competent authority is not willing to recognise the petitioner as a Manager of the School it is always open to her husband either to resign the job or to take voluntary retirement or to apply for long leave and take up the Correspondent ship if he is not inclined to nominate some other person as Correspondent in exercise of his right of management of the institution and the competent authority on any pretext can not transgress upon the process of the management. Hence, to my mind the question of appointment of a Manager by the competent authority does not arise. From the facts of the case it is not in dispute that the petitioner inherited the school along with its properties under registered Will dated 1-4- 1985 executed by the founder himself after disinheriting the 5th respondent. Hence, I have no hesitation to hold that the appointment of the 5th respondent as Correspondent is nothing but acting against the wishes of the founder, who has expressed himself in crystal clear terms in the Registered Will executed by him and I am sure that such a power is not conferred on the competent authority under any of the provisions of the Act." In the above judgment, the learned Single Judge of this Court has drawn the distinction between the Manager of a private educational institution and Correspondent. However, Single Judge made it clear that under Section 24 (2) of the Act, appointment of Manager or Correspondent is within the realm of Executive Committee or Managing Committee of private educational institution. But in the present case, respondent No.6 is directly under the control 20 HACJ & MSM,J WP_1421_ 2016 of Department of Endowments and the competent authority is only Commissioner of Endowments to appoint any person as Manager or Correspondent. Section 24 (2) of the A.P. Education Act enables the respondent No.3 - The Commissioner of Collegiate Education has authority to approve the appointment made by the respondent No.4 - The Commissioner of Endowments and if for any reason respondent No.3 feels that person appointed by respondent No.4 is incompetent or disqualified, respondent No.3 may recommend for cancellation of his appointment and the appointing authority may substitute any other competent person in place of person, who is disqualified to act as correspondent. But for the reasons best known to the petitioner, he questioned the authority of respondent No.3 to approve the appointment of respondent No.5 by respondent No.4 as correspondent of respondent No.6 - college. However, the petitioner did not place any material before this Court that the respondent No.6, which is an endowment institution is having income more than Rs.50,00,000/- and registered under Section 6 (c) (i) of the Act and that it should be managed by officer in the cadre of Assistant Commissioner. When the appointment of respondent No.5 as correspondent of respondent No.6 - college by respondent No.4 is not questioned, the approval by respondent No.3 cannot be questioned as the approval by respondent No.3 is in accordance with the power conferred on him by Section 24 (2) of the A.P. Education Act. Therefore, alleged disqualification of respondent No.5 to act as correspondent is not based on any material and in the absence of any material before this Court, it is difficult to accept the contention of the learned counsel for the petitioner that the respondent No.5 is disqualified to act as correspondent of respondent No.6-college.
Learned counsel for the petitioner has also drawn the attention 21 HACJ & MSM,J WP_1421_ 2016 of this Court to Section 29 (2) of the Act in support of his contentions. Section 29 of the Act deals with appointment and duties of Executive officer. Clause (2) of Section 29 of the Act made it clear that the number of Executive Officers in each grade shall be as may be prescribed by the Government from time to time and the Commissioner shall be the appointing authority for the Executive Officer of Grades I, II and III. Even according to Section 29 (2) of the Act, the respondent No.5- who is Grade II Executive Officer was appointed as Correspondent of respondent No.6 - college and his duties are also prescribed under the same provision. However, it is not the contention of the petitioner that the respondent No.4 lacks competence to appoint respondent No.5 as correspondent No.6 - college. Therefore, Section 29 (2) of the Act is of no avail to set aside the appointment of respondent No.5 as correspondent of respondent No.6 - college.
At the same time, Section 11 of the Act deals with powers and functions of Assistant Commissioner, which is irrelevant for deciding the present controversy before the Court. Accordingly, the point is answered in favour of the respondents and against the petitioner. P O I N T No.2:
The basis for claiming consequential relief to set aside the proceedings of respondent No.5 in Rc.No.SS/W/2015 dated 03.12.2015 is disqualification of respondent No.5 to work as Correspondent. Though the petitioner raised several contentions in the affidavit filed along with the writ petition with regard to disqualification of respondent No.5 to work as correspondent and the legality of the punishment imposed against him, there is absolutely nothing to interfere with the departmental proceedings initiated against him since the jurisdiction of this Court is limited and at best
22 HACJ & MSM,J WP_1421_ 2016 this Court has to examine whether the procedure followed by the Enquiring Authority is in accordance with law or whether the punishment imposed against the petitioner is proportionate to the misconduct.
In fact, the petitioner was found guilty earlier and major penalty was imposed, later the same was reduced to minor penalty. In the present enquiry vide Rc.No.SS/W/2015 dated 03.12.2015 penalty of stoppage of one increment with cumulative effect was imposed against the petitioner and it is a major penalty. But the appeal is pending against the said order before the competent authority according to the petitioner.
The petitioner who is a watchman found guilty of misconduct for more than one time, filed this petition claiming certain reliefs against his superior officer under whose control the petitioner is working. If relief claimed in the petition is granted, it is difficult for any of the superior officer to control the subordinate staff members including attender, office subordinate or watchman and encouraging such practice may lead to mal-administration or administrative anarchy in the institutions and every employee, who is found guilty for misconduct will approach the Court for different reliefs to wreck vengeance against the superior officer, who took action against them for their misconduct. When the petitioner approached this Court claiming relief of Writ of Quo warranto, which can generally be issued to the subordinate Courts and the subordinate officers initially, but on account of change of law, for issuance of a writ of quo warranto, the High Court has to be satisfied that the appointment is contrary to the statutory rules/provisions. Moreover, a writ of quo warranto, as has been held by the Hon'ble Apex Court in the case of "B.R. 23 HACJ & MSM,J WP_1421_ 2016 Kapur v. State of Tamil Nadu5", is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed and its purpose is solely to prevent a person to act as such from usurping a power which he does not have. Thus information in the nature of quo warranto does not command performance of official functions and cannot be used for the purpose of dictating or prescribing an official duty.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which are enumerated in "West Bengal Central School Service Commission v. Abdul Halim (Civil Appeal No.5824 of 2019 dated 24.07.2019)" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.
In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.5
AIR2001SC3435
24 HACJ & MSM,J WP_1421_ 2016 In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC
137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect." Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of Mandamus, but such relief cannot be granted as a matter of course as held in "State of Kerala v. A.Lakshmi Kutty6", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the 6 1986 (4) SCC 632 25 HACJ & MSM,J WP_1421_ 2016 Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.7", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.8" the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
In "Union of India v. S.B. Vohra9" the Supreme Court considered the said issue and held that 'for issuing a writ of 7 1995 All.L.J. 534 8 (1996) 9 SCC 309 9 (2004) 2 SCC 150 26 HACJ & MSM,J WP_1421_ 2016 mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain10" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all 10 (2008) 2 SCC 280
27 HACJ & MSM,J WP_1421_ 2016 the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) In view of the law declared in the above judgments, Writ of Mandamus is purely discretionary in nature and against the order passed by the respondent No.5 including stoppage of increments against the petitioner, the remedy available to him is to approach the appellate authority and such order cannot be set aside, and Writ of Mandamus cannot be issued, more particularly, when the petitioner is guilty of misconduct for more than once as admitted by the petitioner in the petition itself.
28 HACJ & MSM,J WP_1421_ 2016 Yet, another lacuna in the petition is that the petitioner sought relief of Writ of Quo warranto, consequential direction is sought by way of Writ of Mandamus to set aside the punishment imposed against the petitioner on finding him guilty for the misconduct. It is doubtful, as to maintainability of Writ of Mandamus as consequential relief to Writ of Quo-Warranto. This Court is not required to adjudicate on the issue of maintainability of the writ petition for two different reliefs, as we found no merit in the petition.
In view of our foregoing discussion, we find no merit in the writ petition and it is deserves to be dismissed.
In the result, the writ petition is dismissed. No order as to costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 06.08.2019 Ksp