Andhra Pradesh High Court - Amravati
Andhra Evangelical Lutheran Church vs The State Of Ap on 20 March, 2021
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION No.7892 of 2018
ORDER:
This writ petition is filed 'to declare the proceedings dated 09.02.2018 of the 4th respondent appointing the 5th respondent as Special Officer, as illegal and arbitrary'.
Case of the petitioners is that, the 1st petitioner is a religious minority organization and it administers various educational institutions; Section 24 of the A.P. Education Act (for short 'the Act') empowers the management of the institutions to nominate a representative to represent before the authorities as Correspondent and function as Administrator; however, rules framed under the Act vide G.O.Ms.No.1 dated 01.01.1994 does not deal with the recognition of the person appointed as Correspondent; there are no statutory rules, but only executive instructions with regard to the same; this policy, as reflected in the executive instructions, was changed with effect from 27.10.2004 vide proceedings of the 2nd respondent; the competent authority i.e., the District Collector, is required to take note of the change; in the pro- forma prescribed for change of correspondentship, the outgoing Correspondent has to sign on acknowledgment; the 1st petitioner has appointed one Mr. Beera Rajasekhar, as Correspondent in the year 2005 and he was continued up to 2017 and was removed on 13.10.2017 and in his place, the 2nd petitioner was appointed as Correspondent with effect from 01.10.2017; as the previous Correspondent indulged in misappropriation of funds and the management also filed a complaint against him, he went underground and his whereabouts are not known to get his signature on the application to be filed before the District 2 KVL, J WP No.7892 of 2018 Collector; the change of Correspondentship was reflected in the resolutions of the management dated 10.11.2017 and a copy of the said resolution was also marked to the District Educational Officer; while so, the 4th respondent passed impugned order appointing the 5th respondent as Special Officer to the 2nd petitioner-school; the said proceeding is challenged in the present writ petition.
Counter-affidavit is filed by the respondents stating inter-alia that G.O.Ms.No.1 dated 01.01.1994 does not deal with the recognition of a person appointed as Correspondent and that there are only executive instructions in that regard; proceedings were issued by the 2nd respondent authorizing the District Collector to note the change of correspondentship in respect of private aided schools under all managements as per the pro-forma and a checklist was also appended to the said proceedings and according to the said pro-forma, the outgoing correspondent has to sign stating that he is willingly handing over the charge to the new incumbent and to avoid difficulty in payment of salaries to the staff, the impugned order has been issued; outgoing correspondent signature is not there on the pro-forma; according to G.O.Ms.No.1, dated 16.01.2004, to treat the institution as minority institution, 70% of the students should be minority students and unless signature of the outgoing correspondent is obtained, the correspondentship cannot be approved.
Sri Srivijay Mathukumalli, learned counsel for the petitioners submits that the Special Officer can be appointed in the place of the Management, whenever there is mismanagement and before appointing Special officer, notice has to be given to the Management in accordance with Section 24 of the Act and that in the case of a minority institution, 3 KVL, J WP No.7892 of 2018 the competent authority is the Government and the District Educational Officer is not competent to issue the impugned proceedings, as the petitioner is a minority institution.
Learned Government Pleader justifies the impugned order on the ground that according to the format outgoing correspondent's signature is a must and that as the petitioner is not a minority institution and hence, the District Educational Officer is the competent to issue the impugned order.
When the matter came up for admission on 13.03.2018, this Court passed an interim order suspending the proceedings dated 09.02.2018 of the 4th respondent.
Vide impugned Proceedings dated 09.02.2018, the District Educational Officer, appointed the Deputy Educational Officer, Rajamahendravaram as Special Officer to Lutheran Aided High School, Jampeta, for payment of salaries and smooth running of the administration. The said order refers to the proposals submitted by the Management to the Deputy Educational Officer, instructions of the Commissioner of School Education under Section 24(2) of the Act and the note orders of the Collector and District Magistrate.
Section 24 of the Education Act, 1982 deals with appointment and removal of manager of private institution. It reads as follows:-
"Section 24:(1) The management of every private institution shall be constituted in such manner and shall consist of such number of members as may be prescribed:
Provided that the Board of Trustees, or Governing Body or Wakf Board, by whatever name called, constituted or appointed under any other law for the time being in force relating to the charitable and religious institutions and endowments and wakfs, 4 KVL, J WP No.7892 of 2018 shall be deemed to be a management constituted under this sub- section.
Provided further that the constitution of the management under this sub-section shall apply to a minority educational institution, in so far as it is not repugnant to Clause (1) of Article 30 of the Constitution of India.
(2) The management shall, for the purposes of this Act, nominate a person to manage the affairs of the institution, whether called by the name of secretary, correspondent or by any other name, and intimate such nomination within thirty days thereof to the competent authority.
(3)(a) Where the competent authority is satisfied that the management is responsible for the lapses or irregularities of the institution, the competent authority may, after giving to such management an opportunity to make representation and for reasons to be recorded in writing suspend the management and appoint a special officer till the reconstitution of the management :
Provided that in relation to a private institution, under the management of a charitable or religious institution and a wakf, the competent authority shall be the Government or an authority or officer authorized by the Government in this behalf. Provided further that no management of minority educational institution shall be suspended under this sub-section save for mismanagement.
(b) Where the competent authority is satisfied that the manager alone is responsible for the lapses or irregularities of the institution, action shall be taken against him by the management, as recommended by the competent authority."
According to sub-section (2) of Section 24 of the Act, the Management shall nominate a person to manage the affairs of the institution and intimate such nomination to the competent authority. Case of the petitioner is that, the management has nominated the second petitioner to manage the affairs and intimated the same to the competent authority. According to sub-section (3)(a) of Section 24, where the competent authority is satisfied that the management is responsible for the lapses or irregularities of the institution, the 5 KVL, J WP No.7892 of 2018 competent authority may, after giving to such management an opportunity to make representation and for reasons to be recorded in writing suspend the management and appoint a special officer till the re-constitution of the management. So far as the present case on hand is concerned, it is not the case of the competent authority that the management is responsible for the lapses or irregularities of the institution and admittedly, no notice has been given to the management to make a representation and hence, the respondent-authorities ought not to have appointed a Special Officer to the Lutheran Aided High School.
Learned counsel for the petitioner also contended that as per the proviso to sub-section (3) of Section 24, if the institution is a private institution under the management of a religious institution or religious endowment, the competent authority is the Government and not the Deputy Educational Officer and that as the petitioner is a minority institution, the competent authority is the Government and not the Deputy Educational Officer and that the management cannot be suspended except for mismanagement. But the petitioner except stating that Lutheran High School is being established and administered by the Andhra Evangelical Lutheran Church, no document has been filed to show that the said school is a minority institution.
As per G.O.Ms.No.1 dated 16.01.2004, certain guidelines were issued for issuing minority status certificate for making admissions and appointments etc. in Minority Educational Institutions. As per the said guidelines, the educational institutions established and managed by the minorities shall serve the educational needs of their community to which they claim to belong by filling up not less than 70% of seats to the 6 KVL, J WP No.7892 of 2018 minority community students. According to the counter-affidavit filed by the respondents, no minority students are pursuing studies in the said school and no reply affidavit has been filed contradicting the same. Hence, the contention that the petitioner is a minority institution cannot be accepted without necessary particulars.
The previous correspondent was removed vide orders dated 30.10.2017 and the second petitioner was appointed as correspondent with effect from 01.10.2017. According to the petitioners, previous correspondent's whereabouts are not known and hence, they are unable to obtain his signature on the application for transfer of correspondent- ship. There is no statutory rule which says that the outgoing correspondent has to sign stating that he is willingly handing over the charge to the new incumbent. As the previous correspondent was removed by the management, he cannot be expected to sign on the format for change of correspondent-ship. Petitioners have complied with sub-section (2) of Section 24 of the Act by intimating the change of correspondentship to the competent authority.
As seen from the proceedings dated 16.12.2017, the Deputy Educational Officer addressed a letter to the District Educational Officer stating that 'as the outgoing correspondent has not signed on proposals, kindly appoint Special Officer for drawing TG bills'. The said recommendation is contrary to Section 24 of the Act. Section 24 of the Act does not contemplate appointment of a Special Officer, merely because outgoing correspondent has not signed the proposal for change of correspondent-ship.
In view of the facts and circumstances of the case, as the outgoing correspondent is not available to sign on the format and as the 7 KVL, J WP No.7892 of 2018 conditions stipulated under Section 24 of the Act are not applicable to the facts on hand, the impugned order is set aside and the respondents are directed to reconsider the proposal submitted by the petitioners for change of correspondent-ship without insisting the signature of the outgoing correspondent.
The writ petition is, accordingly, allowed. No order as to costs. Consequently, Miscellaneous petitions, if any pending, in this writ petition shall stand closed.
________________________ KONGARA VIJAYA LAKSHMI, J Date: 20.03.2021 BSS 8 KVL, J WP No.7892 of 2018 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI WRIT PETITION No.7892 of 2018 Date: 20.03.2021 BSS