Andhra HC (Pre-Telangana)
B. Prakash Rao vs The District Educational Officer And ... on 20 November, 1995
Equivalent citations: 1996(1)ALT533
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT P.S. Mishra, C.J.
1. Heard learned counsel for the Appellant.
2. The Appellant lost before the learned single Judge in Article 226 of the Constitution of India mainly on the ground that the contention that a Manager or Correspondent can be removed only in accordance with the procedure as contemplated under Section 24(3) of the Andhra Pradesh Education Act, 1982 (for short 'the Act') has failed before the learned single Judge. Our attention, however, has been drawn to a Bench decision in this Court in Dr. Sr. Y. Philomena v. Principal Secretary to Government, , in which it is observed as follows:
"24. Section 20 of the A.P. Education Act deals with permission for establishment of educational institutions. An educational agency applying for permission have to satisfy the requirements of Sub-section (3). Clause (c) of that sub-section obliges the educational agency to appoint teaching staff qualified according to the rules made by the Government and to satisfy other requirements laid down by the Act, Rules and Orders as a condition for grant of permission. Section 24 dealing with appointment and removal of Manager of Private Institutions requires the Management of every private institution to be constituted in such a manner and shall consist of such number of members as may be prescribed. The second proviso of Section 24(1) of the Act provides that "the Constitution of the Management shall apply to minority educational institution, in so far as it is not repugnant to Clause (1) of Article 30 of the Constitution of India."
We have seen that the Management has to 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." 26. It is obvious that the educational agency has a statutory obligation to appoint teaching staff qualified according to the rules made by the Government and also satisfy all the other requirements laid down by the Act,, Rules and orders made thereunder (vide Section 20(3) of the Act). The educational agency has to constitute management in the prescribed manner. It is evident from the provisions of Section 24 that it shall be a body of persons so constituted as to consist of the specified number of persons. It is provided further that the manner of its Constitution and the number of members which it shall consist of shall be prescribed. Except to the extent that it shall not be repugnant to Clause (1) of Article 30 of the Constitution of India, the minority educational institutions are obliged to have management as mentioned above. It is that body which nominates a person to manage the affairs of that institution. He/she may be called either as Secretary or Correspondent or any other name. In him/her shall vest the responsibility for managing and conducting affairs of the private institution in accordance with the provisions of the Act, Rules and Orders. Provision for his removal is also made in Section 24."
and it is contended that as in the case of the Principal so in the case of the Correspondent, removal is permissible only in accordance with the prescribed procedure viz., one under Section 24(3)(b) of the Act. We are, however, aware also of the statement of law in this behalf in the very same judgment cited by the learned counsel which is as follows:
"60. The pleadings do not disclose that the order of transfer was preceded by any notice or enquiry. We hold that is so far as the rights of the petitioner which are protected by Statute are invaded: and impaired, she is entitled to notice preceding the action. Absence of such notice vitiates the order. We, therefore, quash the order impugned herein. We make it clear that this does not preclude the duly constituted management from taking such action as may be called for after due notice to the petitioner and in compliance with the relevant statutory provisions."
There can be no exception to the rule that any person or authority who has to act under and in accordance with certain law, if found to have violated the law, can be subjected to the writ jurisdiction of this Court. In the case of the correspondent or the Manager, however, it is possible to say that in case where the competent authority is satisfied that the Manager is alone responsible for the lapses or irregularities in the institution and recommends for action by the Management, if it is shown that the competent authority has not acted in accordance with law or has acted with malice, whether personal or legal, or otherwise, in violation of the principles of natural justice, a writ will issue even though the final order in this behalf is passed by the Management or in case, the competent authority has declared a person to be unfit, as contemplated under Section 24(4) of the Act, and the Management has, accordingly, issued necessary orders to replace the Manager or Correspondent, a Writ will issue even though the final act is that of the Management. No Writ, however, shall issue so long as the Management and the Correspondent or Manager act within the four-corners of the private law including the bye-laws which do not have the sanction of a Statute. Area in which Article 226 of the Constitution of India shall operate, however, is not confined to commands to the authorities which satisfy the definition of 'State' in Article 12 of the Constitution. A person or authority, not necessarily an authority under Article 12 of the Constitution, can always be subjected to the Writ jurisdiction of the Court provided he has a public duty to perform and has failed to perform the duty or has some command of public law under which he has to discharge some part of the sovereign functions, that is once again an act under a law of conventions under the Constitution of India or of necessity as residuary powers under any Statute. Courts, except in case of invasion of constitutional rights, such as Articles, 14,16, 21, and 23 of the Constitution of India or Statutory rights, exercise self-imposed constraints and decline to issue writs and directions for obligations arising under private laws such as Articles of Association of any Society or Company which will include the bye-laws under which the Management appears to have acted and taken action against the appellant herein. We are in agreement with the findings recorded by the learned single Jude and we have reasons more than what the learned single Judge has noticed to hold against the appellant.
3. Courts invariably hesitate in entering into the disputed questions of facts and when issues of fact are required to be determined or the matters of controversy are inclusive of facts which give rise to issue of fact for determination, do not exercise their extraordinary power under Article 226 of the Constitution for the simple reason that the proceedings are disposed of in a summary manner and the correctness or otherwise of the materials or the veracity of the witnesses are left to be determined by a regular Civil Court. The determination on the issues that have been raised by the appellant by the learned single Judge may operate as res judicata in case he decides to agitate his claim in a civil suit. We observe, therefore, that we have expressed no opinion on the merits of the controversy and any findings, which will have any effect in the proper adjudication, in the event of the appellant filing a suit, recorded by the learned single Judge, must be held to be only tentative and not finally concluded. We accordingly clarify that the court has expressed no opinion on the merits of the claim of the appellant.
4. For the reasons aforementioned, the Writ Appeal is dismissed.