Andhra HC (Pre-Telangana)
Tabita Ideal High School And Ors. vs Government Of A.P., Education ... on 10 August, 1999
Equivalent citations: 1999(6)ALT358
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER V. Bhaskara Rao, J.
1. These four Writ Petitions are interconnected so much so that the earlier Writ Petition in point of time is Writ Petition No. 19741 of 1988 and subsequent Writ Petitions can be said to be offshoots thereof. As the subject matter is more or less same, they are being disposed of by a common order.
W.P.No. 19741 of 1998:
2. The Management of the petitioner-school represented by its Headmistress and Correspondent filed this Writ Petition seeking a Writ of Certiorari to call for records in proceedings RC.No. 488/A2/97, dt. 22-11-1998 and consequential proceedings dt. 18-11-1997 of respondent No. 2 and to declare the same as illegal and ultra vires of A.P. Education Act and Rules framed therein.
3. The facts and circumstances giving rise to this Writ Petition are that respondent No. 4 has been working as B.Ed. Assistant in the petitioner-school. The Management framed certain charges against her alleging that she was negligent in her duties and committed acts of misconduct by disobeying certain orders through proceedings bearing RC.No. E. 19/96-97, dt.12-6-1997 and she was directed to submit an explanation within ten days from the date of receipt of the same. Accordingly she submitted an explanation on 26-6-1997 (sic). On a consideration of her explanation and other material, the Management issued proceedings dt. 23-6-1997 directing her to show-cause within 15 days why punishment should not be imposed against her. Respondent No. 4 received the show-cause notice, on 23-6-1997 and submitted her explanation on 14-7-1997. Thereupon the Management issued proceedings dt. 28-7-1997, after considering the explanation dt. 14-7-1997 directing her to appear before the Committee constituted to conduct disciplinary proceedings on 31-7-1997 at 4 p.m. According to the Management, she appeared before the said Committee and gave a statement, but refused to sign the same. However, the Management considered the available material and held that the charges framed against respondent No. 4 have been proved and ordered her reversion as S.G.B.T. Assistant with immediate effect viz., 19-9-1997 Forenoon, by serving a copy of the order on the same date. According to the Management the above vacancy was filled up by promoting one V. Syam Johnson, S.G.B.T. Assistant as B.Ed. Assistant through proceedings dt. 19-9-1995 (sic. 1997) and respondent No. 4 was relieved on the same day and in her place V.Syam Johnson has been working.
4. While so, respondent No. 4 preferred an appeal to respondent No. 2 againstthe order of reversion dt. 19-9-1997 and the same was allowed by order dt. 22-9-1997 which was communicated to the petitioner-Management on 26-9-1997. It is asserted by the petitioner that no opportunity was given to contest the appeal filed by respondent No. 4. Hence the petitioner requested respondent No. 2 through proceedings bearing RC.No. Even/97-98, dt. 29-9-1997 requesting to revoke the orders dt. 22-9-1997. It was followed up by another proceedings dt. 14-10-1997 as no orders were passed by respondent No. 2.
5. While so, respondent No. 2 issued proceedings bearing RC.No. 483/ A2/97, dt. 18-11-1997 directing the petitioner-Management to admit respondent No. 4 as B.Ed. Assistant and on failure to do the matter, the same will be reported to the Director for School Education to initiate action Under Section 24 of A.P. Education Act, for short the 'Act'. Thereupon the Management approached respondent No. 2 with a letter dt. 12-12-1997 seeking reconsideration of his decision while indicating that no permission is required for claiming minority status by the petitioner. As there was no response, another letter dated 22-12-1997 was sent. Order dated 22-9-997 as well as consequential order dated 18-11-1997 are, therefore, liable to be quashed on various grounds including the violation-of principles of natural justice and contravention of the provisions of the Act and Rules framed thereunder.
6. Adverting to the appeal filed by respondent No. 4 it is stated that Section 80(3) and proviso to Section 80(2) of the Act adumbrates the competent authority to pass an order after giving notice to the Management, but no such notice was given to the petitioner-Management before passing an order dt. 22-9-1997. It is further stated that none of the grounds contemplated by Section 80(2) of the Act are made out by respondent No. 4. It is also stated that proviso to Section 79 of the Act contemplates prior approval of 'such authority or Officer as may be prescribed', whereas no such authority is prescribed and hence question of obtaining prior approval of such an authority does not arise. It is then asserted by the petitioner that the sole basis for the proceedings dt. 19-9-1997 reverting respondent No. 4 appears to be that prior approval from the competent authority as contemplated by proviso to Section 79 (1) of the Act has not been obtained and as already stated above the question of obtaining approval does not arise and hence the order dt. 22-9-1997 is liable to be set aside. In this context it is also asserted that the petitioner is a Minority Educational Institution within the meaning of Article 30(1) of the Constitution and hence there is no question of taking prior approval from the authority. A certificate issued by the Secretary, A.P. Minority Commission through its letter No. 203/MC-1/85-1, dt. 22-11-1985 is pressed into service and it is contended that the petitioner is a Minority Institution established to cater to the needs of Christian Minority Community. The proceedings of D.E.O. (3rd respondent) dt. 15-11-1997 stating that the petitioner is a Minority Institution as per G.O.Ms.No. 1, Education, dt. 1-1-1994 is also relied.
7. Thus, it is contended that the impugned proceedings dt. 22-9-1995 and consequential proceedings dt. 18-11-1997 are illegal and ultra vires to the provisions of A.P.Education Act and Rules and hence the same are fit to be quashed.
8. In WPMP.No. 23560/1997 this Court by order dt. 16-7-1998 granted interim suspension of the impugned order.
9. The official respondents filed WVMP.No. 2914 of 1998 along with a counter-affidavit of respondent No. 3. The material allegations of the petitioner are denied although the factual background of the Writ Petition culminating in the order of reversion of respondent No. 4 and the intervention of the respondents directing the petitioner to continue her as B.Ed., Assistant are admitted. It is further stated that in spite of repeated requests by that office, the petitioner has not complied with the same and hence the matter was referred to respondent No. 2 for necessary action against the Management. It is further asserted that the the reversion of respondent No. 4 is irregular as the petitioner has not obtained prior permission from the competent authority to take disciplinary action against respondent No. 4 as per Section 79 of the Act and accordingly respondent No. 2 issued instructions on 22-9-1997 to restore respondent No. 4 as B.Ed., Assistant, but the petitioner has violated the Rules and further correspondence in that regard is also admitted. It is denied that the petitioner is a Minority Institution and in fact it never put up any claim with relevant material to fulfil the requirement of Rule 2(f) of G.O.Ms.No. 1, Education, dt. 1-1-1994 and no Certificate has been issued by the competent authority. It is added that respondent No. 4 was transferred along with the post to the Government Management i.e., R.R.B.H.R. Government High School, Pithapuram vide proceedings RC.No. 93/8/97-2, dt. 17-8-1998 in compliance with the proceedings of the Director of School Education, dt. 10-7-1998.
10. It is, therefore, prayed that the interim direction dt. 16-7-1998 may be vacated and Writ Petition be dismissed.
11. Respondent No. 4 also filed a separate counter-affidavit along with WVMP.No. 3960 of 1998. Apart from the assertions of the official respondents, it is stated by her that the charges framed against her for negligence of duty, disobedience of orders, misconduct, etc., are not correct and they are framed only with a view to harass her and to promote V. Syam Johnson in her place and incident of 19-3-1997 which was witnessed by Philip Raju, brother of the Correspondent is the subject matter of one of the charges and it is asserted that the said charge is framed against her only to save her brother. Likewise, the other charges are also baseless. According to her a detailed explanation was submitted by her, but the same has not been considered and the order of reversion has been passed without obtaining prior permission of the competent authority. She reiterated the contents of the counter of respondent No. 3.
W.P.No. 19752 of 1998:
12. It has been noticed above that the order of the authorities to continue respondent No. 4 in the above Writ Petition as B.Ed., Assistant at one point of time has not been complied. That apart, the Management is said to have committed several irregularities in managing the affairs of the Institution and the Correspondent/Headmaster in day-to-day administration. It is noteworthy that the authorities informed that necessary action will be taken against the Management. Thereafter proceedings RC.No. 147/D1-1/98, dt. 9-6-1998 suspending the Management and appointing a Special Officer (Smt. Ashrafunnisa Begum, Deputy Educational Officer, Kakinada) was issued. The present Writ Petition is directed against that order.
13. In the affidavit of the Headmistress and Correspondent of the petitioner-School all the facts leading to the filing of earlier Writ Petition assailing the order of respondent No. 2 (RJ.D) dt. 22-9-1997 are restated and thereafter it is asserted that the impugned order in this Writ Petition was passed without giving any opportunity to the petitioner and hence violation of the provisions of the Statute.
14. In WPMP.No. 23571 of 1998 by order dt. 16-7-1998 this Court granted interim suspension.
15. The Official respondents filed counter-affidavit and WVMP.No. 3013 of 1998. The facts set out in the counter-affidavit in the earlier Writ Petition are reiterated and the orders challenged in the earlier Writ Petition as well as this Writ Petition are sought to be justified and it is prayed that the interim order dt. 16-7-1998 be vacated and the Writ Petition be dismissed.
16. Respondent No. 4 in the earlier Writ Petition filed WPMP.No. 42212 of 1998 seeking her impleadment on the ground that her rights would be affected by any order that may be passed in this Writ Petition inasmuch as both these writ petitions are connected with each other and hence she is a proper and necessary party.
17. It is true that the genesis of the dispute is on account of the disciplinary action initiated against her and an order of reversion of the petitioner herein. Thereafter she filed an appeal before the R.J.D. and succeeded and that order is challenged in the earlier Writ Petition. The consequential orders passed by the authorities having not been complied with, the impugned order herein was passed. Hence I am satisfied that she is a proper and necessary party. Accordingly this petition is ordered and she is directed to be impleaded as respondent No. 6 in Writ Petition.
18. Respondent No. 6 also filed vacate stay petition by setting out various reasons. Her stand is also the same as official respondents.
W.P.No. 20657 of 1998:
19. It is worthwhile to mention that the Management filed two writ petitions challenging two different orders and during the pendency of the said writ petitions, the teacher who was promoted in place of respondent No. 4 in W.P.No. 19741 of 1998 filed this Writ Petition ventilating his own grievances. It may be seen that the authorities did not approve the reversion of respondent No. 4 from B.Ed., Assistant to S.G.B.T. Assistant and it follows that promotion of the petitioner herein is also not approved. When the dispute was going on between the Management and the authorities on one side, there was delay in the approval of the appointment of the petitioner. The inaction of the respondents in that, regard is challenged by filing this writ petition. The contents in his affidavit are on the same lines as those of the Correspondent and Headmistress.
20. In WPMP.No. 24713 of 1998 he sought for a direction to release his salary from 19-9-1997 onwards and to continue to pay the salaries pending final orders on this writ petition. This Court by order dt..23-7-1998 issued interim direction to respondents 2 to 4 to make payment of salary at least as S.G.B.T. Teacher subject to a condition that the said payment shall be subject to his eligibility pending further orders.
W.P.No. 24849 of 1998:
21. In the chain of events which gave rise to W.P.Nos. 19741 of 1998 and 19752 of 1998, this Writ Petition constitutes their link. The authorities issued proceedings transferring respondent No. 6 herein (respondent No. 4 in W.P.No. 19741 of 1998) along with her post from the petitioner-Institution to R.R.B.H.R. Government High School, Pithapuram and the Headmaster of that School requested to report date of joining of the incumbent promptly. That order has been assailed in this Writ Petition on similar grounds as the earlier writ petitions.
22. An affidavit of the Correspondent and Headmistress of the petitioner-School has been filed in this writ petition also and same averments apart from the facts relating to the transfer of respondent No. 6 along with the post to R.R.B.H.R. Government High School, Pithapuram are restated.
23. In WPMP.No. 30092 of 1998 by order dt. 11-11-1998 this Court granted interim suspension of the impugned order.
24. The official respondents as well as respondent No. 6 filed WVMP Nos. 409 of 1999 and 3962 of 1998 respectively. It is stated in the counter-affidavits that the Management has not obeyed the instructions of respondent No. 2 and when the matter was brought to the notice of Director of School Education, the present order permitting the D.E.O. to shift the post with person viz., Smt. M. Satyavathi (respondent No. 6) from petitioner-School to the Community School under Local Body/Aided or Government according to the willingness and option of the incumbent was issued. The circumstances which led to the above order are set out from stage to stage and it is sought to be supported and it is prayed that the interim order dt. 11-11-1998 be vacated and writ petition be dismissed.
25. It would be convenient to formulate common points covering all the writ petitions for consideration. In view of the rival pleadings set out above, the following points arise for determination :-
(1) Whether the order of reversion of respondent No. 4 is bad in law for want of prior approval of the prescribed authority?
(2) Whether the impugned order is not sustainable tor non-compliance of Sub-section (3) (sic. (2)) of Section 80 of the Act?
(3) Whether the suspension of Management and appointment of Special Officer is justified?
(4) Whether the order dt. 17-8-1998 transferring Smt. Satyavathi along with the post to R.R.B.H.R. Government High School, Pithapuram is sustainable?
(5) To what reliefs are the parties entitled to?
Points 1 and 2 :
26. Point No. 1 relates to the core question in this case. The facts which are relevant and not in dispute are that respondent No. 4, a B.Ed., Assistant in the petitioner-School was alleged to have committed acts of misconduct in a disciplinary proceeding and as a measure of punishment she has been reverted as S.G.B.T. Assistant. She preferred an appeal Under Section 80 of the Act. It is contended on her behalf before the appellate authority that prior approval of the prescribed authority as contemplated by proviso to Section 79 (1) of the Act has not been obtained and hence the order of reduction in rank is not sustainable. The appellate authority accepted the above contention and allowed the appeal even without issuing any notice to the petitioner-School. The petitioner appears to have requested the appellate authority to revoke the said order on the ground that no opportunity was given to the Management, but instead of considering that representation, respondent No. 2 issued proceedings dt. 18-11-1997 directing the Management to admit respondent No. 4 as B.Ed. Assistant on peril of action Under Section 24 of the Act. Both these orders are now challenged in this Writ Petition. On behalf of respondents it is asserted that prior permission of the competent authority is essential for passing the order of reduction in rank of respondent No. 4 under proviso to Section 79 (1) of the Act.
27. Before proceeding further it is deemed necessary to advert to the maintainability of the writ petition. Smt. Vinobha Devi, learned Counsel for respondent No. 4 strenuously contended that the order of the appellate authority viz., respondent No. 2 is appealable to the Director and against the order of the Director to the Government Under Section 89 of the Act and further a Revision lies to the Government Under Section 90 of the Act and in view of the alternative remedy available, the writ petition is not maintainable. Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner relying on the Judgments reported in Mahabubnagar Citizens Council v. Dist. Consumer Disputes Redressal Forum, (D.B.) and Ram and Shyam Co. v. State of Haryana, contended that availability of alternative remedy is not a bar for invoking Article 226 of the Constitution.
28. In the Judgment cited supra (1) it is held -
"We are not also persuaded to reject the appeal on the availability of alternative remedy to the appellant. It is far too well settled in law that the principle of alternative remedy has no application where the impugned order has been passed without jurisdiction or in violation of the principles of natural justice. Reference in the context may be made to A.V. Venlateswamn v. R.S. Wadhwani, . Since the present circular is without jurisdiction, it is not necessary for the appellant to compulsorily approach the appellate authority under the Act before approaching this Court."
29. In the Judgment cited supra (2), it is held-
"Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule Which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits."
30. In view of the above authorities, I have no hesitation to reject the contention of Smt. Vinobha Devi as to maintainability of this writ petition. Sections 89 and 90 of the Act no doubt provide for alternative remedies, but, in my view, they are not as effective as a remedy under Article 226 of the Constitution.
31. Sri V.S.R. Anjaneyulu learned Counsel for the petitioner has taken me through Section 79 of the Act as well as proviso thereof and pointed out that no authority contemplated by the proviso has been prescribed so far and in the absence of such authority, the proviso remains a dead-letter. Placing strong reliance upon two Judgments of this Court in Rev. Joseph Thumma v. Dist. Educational Officer, 1995 (2) An.W.R. 117 and V. Ramakanta Sarma v. Adarsha Vidya Samithi, he contended that the appellate authority Under Section 80 is different from the authority contemplated by the said proviso and in that view of the matter there is no illegality in the order of reduction in rank of respondent No. 4. Supporting the stand of respondent No. 2 that prior approval of the authority is necessary Smt. Vinobha Devi contended that the authority for the purposes of Sections 79 and 80 is one and the same and hence the order of reduction in rank without such prior approval is bad in law. She further contended that even if it be an illegal order, the only course open to the petitioner to prefer an appeal. She relied on a Judgment reported in P. Atchamma v. T. Bayanna , wherein it is held -
"It is settled law that even an erroneous decision by a Court of competent jurisdiction cannot be treated as a nullity unless and until it is avoided by due process of law."
32. As regards the contention that even an illegal order must be avoided by filing an appeal, it may be seen that a Writ Petition has been filed assailing the order and therefore it can be said that proper remedy has been adopted to challenge the said order.
33. I perused Section 79 of the Act and applied my anxious consideration to the above contentions. The above question is no longer res integra. Two Judgments have been rendered by different learned Judges of this Court on this question. In the Judgment cited supra (3), the reasoning of learned Judge in that case can be gathered from the following :-
"The next point to be considered is whether the prior approval of the D.E.O. should have been obtained before removing the 2nd respondent from service, having regard to the proviso to Section 79 of the A.P. Education Act.....
The learned Counsel for the petitioners submits that the proviso to Section 79(1) casting an obligation to obtain prior approval does not have any effect and is not capable of being enforced in the absence of prescription of an officer for the purpose of that proviso. The learned Counsel submits that the competent authority prescribed in Rule 3 of the A.P. Private Institutions Employees (Disciplinary Control) Rules is not the same as the prescribed authority under the proviso to Section 79(1). I find force in the contention of the learned Counsel for the petitioners. The term 'competent authority' occurs in Section 79 only in Sub-section (3) of Section 79 which deals with suspension pending enquiry. The term 'competent authority' is also found in Section 80 relating to appeals against the orders of punishment. In Section 83 relating to retrenchment of employees also, we find the term 'competent authority', but Section 83 is not relevant for the purpose of the present discussion. As rightly pointed out by the learned Counsel, a clear distinction is maintained between 'competent authority' and 'prescribed authority'. In fact, the term 'competent authority' is specifically defined under the Act, to mean "any person, officer or authority authorised by the Government by Notification to perform the functions of the competent authority under the Act for such area or for such purposes as may be specified in the notification."
After extracting Rule 3 of the relevant Rules, the learned Judge examined the question whether the competent authority specified in the Rules framed in G.O.Ms.No. 467, Education, dt. 3-11-1983 could be treated as 'prescribed authority' for the purpose of proviso to Section 79 of the Act and held -
"Evidently, the Legislature did not want to mix up the two expressions 'competent authority' and 'prescribed authority'. The Legislature was quite conscious of the fact that the competent authority prescribed by Rule 3 for the purpose of Section 79(1) proviso. That is why a different phraseology is used. Apart from the difference in the language, there is a compelling reason why this interpretation, as. suggested by the learned Counsel for the respondents, should not be accepted. Let us take a case whether a teacher has been dismissed after obtaining prior approval of the D.E.O. who is the competent authority insofar as the Primary Schools are concerned. No higher authority is designated as the appellate authority. That means, the appeal will be from Ceasar to Caesar. It could not have been intended that an authority who puts the seal of approval to the imposition of penalty under the proviso to Section 79(1) should himself act as an appellate authority. The appeal would then be an empty formality. At any rate, the D.E.O. who has already given his approval cannot be expected to consider the appeal with an unbiased mind. The same is the position under the second proviso to Section 79(1). By that proviso, the Management is given the right to prefer appeal against an order of the prescribed officer or authority refusing approval. Here again if the concept of competent authority under Rule 3 is projected into the proviso to Section 79(1) the D.E.O. will then be acting as an authority refusing approval as well as an appellate authority sitting in judgment over the decision already taken by him. Thus, if the competent authority under Rule 3 is to be regarded as the prescribed authority for the purpose of proviso to Section 79(1), it would lead to anomalous and incongruous results. It is settled law that such inter-pretation suggested by the respondents does not at all fit into the scheme of the relevant provisons. I am therefore of the view that there is no prescribed authority or officer under the proviso to Section 79(1) and in the absence of such prescribed authority or officer, the mandatory requirement of obtaining prior approval becomes a dead letter by virtue of the executive inaction in not effecting the required changes consequent upon the introduction of the two provisos to Section 79(1)".
Undoubtedly the learned Judge P.V.R.J., has rendered a well reasoned and educative pronouncement on this question and in my view there could be no second opinion. Following the above Judgment and another learned single Judge also took the same view. Accordingly I hold that in the absence of Rules prescribing an authority within the meaning of proviso to Section 79 (1), the question of obtaining prior approval of such authority does not arise and hence it remains a dead letter. If that is the sole ground on which the appeal of respondent No. 4 is allowed by respondent No. 2, it is not at all sustainable.
34. Sri Anjaneyulu then contended that the petitioner-School is a Minority Institution and it has been so recognised by competent authority. He relied upon the Certificates dt. 22-11-1985 and 15-11-1997 respectively issued by the competent authorities. The learned Counsel for the respondents resisted the above contention and pointed out that the Rules framed under the Act provide for certain procedure for recognition of an institution as a Minority Institution and a certificate issued by a competent authority is required for the above purpose. It is true that an Institution has to seek recognition as Minority Institution and subject itself to the control of the authorities. The question whether the authorities can insist upon the Minority Institutions to submit themselves to the norms prescribed by the Rules would infringe upon the fundamental rights enshrined under Article 30 of the Constitution has been considered by Supreme Court as well as our High Court in several Judgments. In the view taken by me regarding proviso to Section 79 (1) of the Act, I do not consider it necessary to dilate further on this question.
35. Next contention of Sri Anjaneyulu is that the proviso to Section 80(2) of the Act enjoins upon the competent authority to afford an opportunity to the Management, but no such opportunity is given to the petitioner and hence the impugned order is liable to be set aside on this ground. He pointed out that respondent No. 4 filed the appeal on 19-9-1997 and the same was disposed of within three days on the sole ground of want of prior approval under proviso to Section 79 (1) of the Act.
36. It is true that the said proviso is couched in a mandatory language and any order which is prejudicial to the Management without giving an opportunity cannot be sustained on any ground. Moreover the ground on which the impugned, order is passed is already held to be illegal for various reasons given above. Thus, I hold points 1 and 2 in favour of the petitioner and against the respondents.
37. The impugned order in W.P.No. 19741 of 1998 is, therefore, liable to be quashed and accordingly it is quashed. However, the matter has to be remitted to respondent No. 2 for fresh disposal in accordance with law with a direction to give an opportunity to the petitioner to make a representation as required by law. In this context it is made clear that it would be open to the competent authority to exercise powers under Sub-section (3) of Section 80 of the Act and pass such interim order as he deemed fit pending disposal of the appeal, but he may do so after giving notice to the Management as well as Sham Johnson, petitioner in W.P.No. 20657 of 1998 who has been promoted in the place of respondent No. 4.
Point No. 3:
38. This is the subject matter of W.P.No. 19752 of 1998, which is an offshoot of the earlier Writ Petition. A perusal of the show-cause notice issued by respondent No. 2 in RC.No. 483/A2/97, dt. 18-11-1997 and the impugned order of respondent No. 1 bearing RC.No. 147/D1-1/98, dt. 9-6-198 would show that the direction of respondent No. 2 to admit Smt. M. Satyavathi in the post of B.Ed. Assistant consequent upon allowing her appeal has not been complied with and hence the order suspending the Management and appointing the Deputy Educational Officer, Kakinada, as Special Officer is passed. Sri Anjaneyulu, learned Counsel for the petitioner viz., Management and the Correspondent (eo nominee) contended that no illegality is committed by the Management in reverting Smt. M. Satyavathi and that the order of respondent No. 2 allowing her appeal without notice to the Management is not at all sustainable and in that view of the matter, the order suspending the Management cannot stand. He categorically asserted that there is no other . ground for suspending the Management except the above and hence the order of suspension may also be set aside. The learned Government Pleader for School Education, however, supported the impugned order and argued that the order may not be interfered with in the interest of administration.
39. I carefully perused the show-cause notice as well as the order of suspension of Management. The only ground cited therein is the dispute relating to disciplinary action against Smt. M. Satyavathi. I have already dealt with various aspects of the above case in W.P.No. 19741 of 1998 and held that no illegality is committed by the Management insofar as not obtaining prior approval of the prescribed authority under proviso to Section 79 (1) is concerned. Be it noted that the merits of the appeal filed by her are not at all dwelled upon and in fact the appeal is remitted to respondent No. 2 for fresh disposal according to law. Suffice it for the purpose of this Writ Petition that the attitude of respondents in insisting upon reinstatement of Smt. M. Satyavathi after setting aside the order passed by the Management without giving an opportunity to them cannot be approved. In fact principles of natural justice as well as proviso to Section 80(2) of the Act require an opportunity to be given to the petitioner, but respondent No. 2 did not do so for reasons best known to him. He did not stop at that stage. He proceeded further and issued show cause notice insisting upon reinstatement of Smt. Satyavathi and failure on the part of the Management has culminated in the impugned order. As it hinges upon the earlier order of the Management, it has to meet the same fate as that order. Since the order allowing the appeal of Smt. M. Satyavathi has been set aside, the order impugned herein is also liable to be set aside on the simple ground that when the edifice is removed, the building thereon should also collapse. Point No. 3 is answered accordingly.
40. The result is that the order of suspension of the Management and appointment of the Deputy Educational Officer, Kakinada as Special Officer is set aside.
Point No. 4:
41. The chain of events which culminated in the order dt. 17-8-1998 transferring M. Satyavathi along with the post to R.R.B.H.R. Government High School, Pithapuram can be recapitulated. It is not necessary to set out the details of the disciplinary proceedings initiated against Smt. M. Satyavathi. Suffice it to say that she has been reverted from B.Ed. Assistant to S.G.B.T. Assistant. Thereupon she filed an appeal to the 2nd respondent who in turn allowed the appeal even without notice to the Management on the ground that prior approval of the prescribed authority under proviso to Section 79 (1) has not been obtained. That order was challenged in W.P.No. 19741 of 1998 and the same was suspended by this Court at the instance of the petitioner. The respondents entered appearance in this Court and filed counters and sought for vacating the interim order. On the other side they went on pursuing the petitioner-School by directing them to admit her to the post of B.Ed. Assistant. At one point of time a show-cause notice was issued and the direction to admit her on peril of necessary action was reiterated. Thereafter a report was sent to the Director of School Education, who in turn suspended the Management and appointed the Deputy Educational Officer, Kakinada as Special Officer. That order was again challenged in this Court in W.P.No. 19752 of 1998 and it was also suspended. As the earlier orders were frustrated, the authorities chose another device and passed an order transferring Smt. M. Satyavathi along with the post to R.R.B.H.R. Government High School, Pithapuram.
42. Sri Anjaneyulu, learned Counsel for the petitioner assailed the above order on the ground that one person viz., Syam Johnson has already been promoted in that post and he is working there and transfer of that post to another School will be prejudicial to him and there won't be any post for him, He cited the Judgment in K. Nirmala v. Government of Andhra Pradesh, and Ors. 1998 (2) An.W.R. 563 = 1997 (6) ALD 488 and contended that the Rules do not provide for transfer of a member of teaching staff from one Institution to another. Smt. Vinobha Devi, learned Counsel for respondent No. 6, on the other hand, contended that the D.E.O. has every right to shift the post from one Institution to another and such a power cannot be challenged under Article 226. She pointed out that having regard to the circumstances of the case, the option of respondent No. 6 was obtained and thereafter the above post has been shifted and there is no illegality in that order. The learned Government Pleader for Education also took a similar stand and contended that the writ petition is liable to be dismissed.
43. I am of the view that this Writ Petition cannot be considered in isolation. The disciplinary proceedings against respondent No. 6 and various events that led to passing of several orders from time to time and ultimate order of transfer of respondent No. 6 along with the post from the petitioner-School to R.R.B.H.R. Government High School, Pithapuram will have to be treated as one episode. It may be visualised that if respondent No. 6 is going to succeed in her appeal before the 2nd respondent, the position obtaining on the date prior to her reversion will have to be restored and consequently Syam Johnson will have to go back to his original place. At the same time the converse may also be seen and it follows that in the event of dismissal of her appeal, she faces reversion and Syam Johnson who is promoted in her place would retain the position. Therefore, the fate of these two teachers depends upon the result of the appeal which is remitted to 2nd respondent for fresh disposal. In that view of the matter, the order dt. 17-8-1998 transferring Smt. Satyavathi along with the post to R.R.B.H.R. Government High School, Pithapuram cannot be sustained. It would not only result in prejudice to Syam Johnson who is not a party to this Writ Petition, but it will also nullify the effect of order of reversion duly passed by the petitioner in a disciplinary enquiry and that order is yet to be decided before the appellate authority.
44. Moreover, the question whether the Rules framed in G.O.Ms.No. 12, Education, dt. 10-1-1992 provide for transfer of a member of teaching staff of one Institution to another has been examined in the Judgment cited supra (6) and it has been held that there are no statutory provisons for the said transfer. On a consideration of the relevant Rules, I am also of the same view.
45. For the above reasons, I hold that the impugned order of transfer in W.P.No. 24849 of 1998 is illegal and liable to be set aside.
46. In this context the Writ Petition filed by Syam Johnson viz., W.P. No. 20657 of 1998 is also considered and disposed of. Having regard to the scramble between Syam Johnson and Smt. M. Satyavathi for the same post of B.Ed. Assistant and since the matter is yet to be resolved, this Court passed an interim order directing payment of salary to Syam Johnson at least at the level of S.G.B.T. Assistant. As already indicated above, his fate hinges upon the result of the appeal filed by Smt. Satyavathi before respondent No. 2. Pending disposal of the appeal, the safest course would be to continue to pay the salary of S.G.B.T. Assistant to Syam Johnson and also to keep approval of his appointment as B.Ed. Assistant in abeyance until the disposal of the said appeal. Suffice it to say that the approval of his appointment as B.Ed. Assistant will be taken up for consideration if the appeal filed by Smt. M. Satyavathi is dismissed by respondent No. 2. Insofar as respondent No. 6 is concerned, though at the cost of repetition, it may be stated that it is open to respondent No. 2 to pass an interim order as regards her continuance as B.Ed. Assistant or S.G.B.T. Assistant pending consideration of her appeal after giving an opportunity to the Management. It may be borne in mind that there is only one post of B.Ed. Assistant and one post of S.G.B.T. Assistant and hence if Smt. M. Satyavathi is to function as S.G.B.T. Assistant, it goes without saying that Syam Johnson will hold the post of B.Ed. Assistant although his salary is directed to be paid tentatively as S.G.B.T. Assistant subject to final orders on the disposal of the appeal of Smt. Satyavathi.
Point No. 5:
47. In the result, W.P.Nos. 19741 of 1998, 19752 of 1998 and 24849 of 1998 filed by the Management are allowed and orders impugned in all these three W.Ps., are set aside. However, the appeal of Smt. M. Satyavathi stands remitted to respondent No. 2 for fresh disposal according to law after giving opportunity to the petitioner-Management and Syam Johnson. It is made clear that respondent No. 2 will be free to dispose of the appeal without being influenced in any manner by any observations of this Court. At the same time it is made expedient to caution respondent No. 2 that he shall assess the material that may be placed by the Management in support of the charges of misconduct of Smt. M. Satyavathi objectively and dispassionately and without being swayed by the earlier orders which are since set aside and he shall record his reasons for his findings. W.P.No. 20657 of 1998 filed by Syam Johnson is disposed of with the directions indicated above. The parties are directed to bear their respective costs.