Andhra HC (Pre-Telangana)
S.L. Kameswari vs Govt. Of A.P., Education Department, ... on 18 November, 1997
Equivalent citations: 1999(1)ALD84
ORDER
1. The order of the 4th Respondent i.e., the District Educational Officer, Prakasam District in Re. No.2631/ C5/90 dated 14-6-1997 is impugned in this writ petition. Under the impugned order the 5th Respondent was appointed as a correspondent to the Hindu Aided Elementary School, Ravinuthala village, Prakasam District on the ground that the petitioner's husband, to whom the founder of the school bequeathed the school under a Registered Will dated 1-4-1985, cannot work as Manager of the School as he happened to be a Zilla Parishad employee under Rule 55 of the A.P. Integrated Educational Rules, 1966.
2. The factual matrix of this case are that one Sri S. Venkateswarlu established Hindu Aided Elementary School at Ravinuthala village, Prakasam district way back in the year 1926 and the School seemed to have been admitted to grant-in-aid at a later date. On attaining the old age the said Sri Venkateswarlu seemed to have initially executed a Registered Will in favour of the 5th respondent, who is no other than his first son on 12-12-1984 bequeathing the immovable as well as movable properties attached to the School and Correspondentship. Subsequently there seems to have been change in the mind of the founder and he executed another Registered Will on 1-4-1985 bequeathing the properties along with the School to the petitioner's husband one S. Suryanarayana, the second son of the founder. In the said Will he categorically stated about the cancellation of the earlier Will. Subsequently the founder died on 12-12-1987. As the petitioner's husband was working as a Teacher in Mandal Praja Parishad Primary School, Ravinuthala village he could not act as a Correspondent in view of the prohibition contained in Rule 55 of the A.P. Integrated Education Rules, 1966. In those circumstances, he executed a Power of Attorney in favour of his wife, the petitioner before this Court on 8-7-1989 wherein the Correspondentship was also conferred on the petitioner by her husband and this fact was also informed to the District Educational Officer as required under Section 24 of the A.P. Education Act (for short 'the Act') and the District Educational Officer acknowledged the same on 22-5-1990. Subsequently the 5th respondent herein seemed to have filed a representation before the 3rd Respondent herein i.e., Regional Joint Director claiming the right for the Management of the School on the basis of the earlier Will dated 12-12-1984, which was cancelled. The 3rd respondent dismissed the representation on 7-8-1990 and the appeal preferred by the 5th respondent to the Director of School Education also met with the same fete. The 5th respondent seemed to have filed a second appeal under Section 79 of the Act and the Government seemed to have allowed the appeal of the 5th respondent and appointed him as Correspondent of the School by order dated 3-7-1996. Aggrieved by the said orders the petitioner filed WP No.14361 of 1996. The said writ petition was finally disposed of by my learned brother Justice Sudarshan Reddy by his order dated 29-11-1996. His Lordship while approving the view taken by the Government remanded the matter to the District Educational Officer for fresh consideration whether the 5th respondent can be appointed as Manager/Correspondent of the School in question as there was no discussion on this aspect by any of the authorities concerned. On the basis of the said remand the impugned order was passed by the 4th respondent. Hence this writ petition for the second time by the petitioner.
3. The contention of the petitioner in the writ petition is that though there is prohibition to act as Correspondent under Rule 55 of the Rules there is no prohibition for inheriting the School started by his late father. A look at the provisions of the A.P. Education Act makes it very clear that Management of the School is different from appointing a Manager, by the management of the Institution who is directly responsible to the Government in the Management of the affairs of the Institution. Hence, the District Educational Officer went wrong in appointing the 5th respondent as Correspondent of the School without looking into the provisions of the Act.
4. Countering the arguments of the petitioner Mr. Srinivas appearing for Mr. Venkata Shastri contended that in the earlier round of litigation this Court clearly held that the Power of Attorney executed by Mr. Surya Narayana in favour of the petitioner is of no consequence as he himself cannot be appointed as Correspondent of the School and the matter was only remanded to consider the claims of 5th respondent for appointment as Correspondent. In reply to the contentions raised by Mr. Srinivas, Mr. Rama Rao appearing for the petitioner argued that the matter was remanded to consider the claims of all the concerned for appointment as Correspondent. It is useful to extract the observation made by the learned Judge in Writ Petition No.14361 of 1996, which is as follows:
"On an appeal/representation preferred by the fifth respondent herein, the first respondent after careful examination of the matter rightly came to the conclusion that the said Suryanarayana inspite of the Will in his favour cannot hold the correspondentship of the school in question since he is full time teacher in Mandal Praja Parishad School, Ravinuthalapadu and in such a view of the matter, the Power of Attorney deed executed by him in favour of his wife who is the petitioner herein is of no consequence. The first respondent observed that what cannot be done directly, cannot be directed to be done in an indirect manner. There is absolutely no difficulty in agreeing with the finding given by the first respondent so far as it relates to the appointment of the petitioner herein as the Manager/Correspondent of the School in question. The first respondent had rightly intervened the matter and set aside the order passed by the fourth respondent on 22-5-1990 appointing the petitioner herein as the Manager/Correspondent of the school in question.'' In the next para the learned Judge observed:
"It is entirely a different thing to say that the petitioner is not eligible to be appointed as the Manager/Correspondent of the School on the basis of the Power of Attorney executed by her husband in her favour and totally another thing to say that for the very same reason; the fifth respondent is entitled to be appointed as the Manager/Correspondent. The first respondent was under the obligation to decide the question as to whether the fifth respondent is entitled and eligible to be appointed as the Manager/Correspondent of the School. Therefore, that portion of the order which is impugned in the writ petition cannot be sustained.'' Lastly in the end the learned Judge observed as follows:
"To resolve the controversy, it would be appropriate to direct the competent authority i.e., the District Educational Officer to consider the question afresh with regard to the appointment of an eligible person as the Manager/Correspondent of the School. It is needless to clarify that the case of the fifth respondent has to be considered by the District Educational Officer as to whether he is eligible and entitled and qualified to be appointed as the Manager/Correspondent of the School."
5. Though the petitioner can raise the contention that the issue is left open and the District Educational Officer is bound to consider the claims of herself as well as the 5th respondent in the light of the language used in the last para i.e., "'The District Educational Officer to consider the question afresh with regard to the appointment of an eligible person as the Manager/Correspondent of the School", after going through the entire body of the judgment, to my mind it appears that the matter was purely remanded to consider whether the 5th respondent can be appointed as Manager/Correspondent or not. In the impugned order dated 14-6-1997 the District Educational Officer opined that there is no provision to transfer the management directly from one person to another person. Though some improvements have been made, the effect of the order is nothing but reproduction of opinion expressed by the learned Judge in Writ Petition No. 14361 of 1996.
6. I am afraid that I cannot agree with the reasoning given by the learned Judge in unsuiting the petitioner on the ground that as her husband is not eligible to be appointed as Correspondent the Power of Attorney executed by him is of no consequence; more so without reference to the scheme of the Act and the provisions of the Act.
7. Under the provisions of the A.P. Education Act the educational institutions can be started either by the Government, the local authorities or a body of private individuals under the provisions of the Act. Under Section 2(6) of the Act "approved school" means any school in any specified area within the jurisdiction of a local authority imparting (Pre-primary) or primary education which (i) is under the Management of the Government or a local authority, (ii) being under any other management, is recognised as such under this Act. An Educational agency is defined in Section 2(17). We are concerned with sub-clause (b) of Clause (17) of Section 2 of the Act, which is to the following effect: any other private educational institution any body of persons entrusted with the establishment, management and maintenance of such private educational institution. "Anybody of persons" was substituted by Act 27 of 1987. Section 2(27) of the Act defined Management as the managing committee or the governing body, by whatever name called, of a private institution to which the affairs of the said institution are entrusted, but does not include a manager. Section 2(28)(iii) defined "the manager" as the Manager means a person nominated to manage the affairs of the institution under subsection (2) of Section 24 of the Act. Under Section 24(2) of the Act, 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. Under Section 24(3)(a) where the competent authority is satisfied that the management is responsible for the lapses or irregularities of the institution, the same can be suspended after recording the reasons in writing and appoint a special officer till the reconstitution of the management. Under sub-clause (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. Under sub-section (4) of Section 24 the Competent authority may, for reasons to be recorded in writing, declare a person to be unfit to be the manager of a private institution after giving to such person an opportunity of making his representation against such declaration and under intimation to the management and on such declaration, the person aforesaid shall cease, to be the manager of the private institution and the management of such institution shall nominate another person as a manager in his place in accordance with the provisions of sub-section (2).
Section 25 specifies the duties of a Manager. Further Rule 16(2) of A.P. Educational Institution (Establishment, Recognition, Administration and Control of Schools) Rules, 1988 specified the function of the Governing Body managing the educational institutions.
8. A combined reading of all these 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 emploj'ee cannot act as a correspondent and it is something to say that the Government employee 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 Correspondentship 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 Correspondentship 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.
9. In fact, Mr. Rama Rao brought to my notice a judgment of the Division Bench of Kerala High Court in A. Abdul Rahim v. State, . In this case the question that came up for consideration before the Bench is whether the validity of the transfer of property and right of management of an aided school could be decided by educational authorities or not. The Hon'ble Acting Chief Justice Mr. K. Bhaskaran speaking for the bench after referring to an unreported judgment in Writ Appeal Nos. 152 and 191 of 1978 (Kerala) and after explaining the purport of that judgment held the Educational authorities are not meant to settle civil rights of the parties to such properties. Their Lordships also made it clear that there could be no doubt that the right to agitate on questions of civil rights in a civil Court would remain unaffected in spite of the decision by the Educational Authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act, in the following terms:
"We understand the Division Bench ruling as one laying down that it is for the statutory authorities constituted under the Kerala Education Act and the Rules framed thereunder, to the best of their resources and ability, to decide the question of the right of management of the school. We do not, however, understand it as one laying down a proposition that such decisions taken by the Educational Authorities would conclude the civil rights of the parties to the properties involved. The decisions of the Educational Authorities are not meant to settle civil rights of the parties to such properties. These decisions are in the nature of summary determination for the sake of expediency, without waiting for the result of a protracted litigation in a civil Court. There could be no doubt that the right to agitate on questions of civil rights in a civil Court would remain unaffected inspite of the decision by the Educational Authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act. It docs not, and cannot oust the jurisdiction of the civil Court in matters touching the civil rights of the parties."
10. For all the above reasons I am not able to agree with the view taken by my learned brother that as the petitioner's husband is not eligible for appointment as manager in view of the embargo placed under Rule 55 of the A.P. Integrated Education Rules the Power of Attorney executed by him is of no consequence. I am of the opinion that as long as the registered Will dated 1-4-1985 is in force the petitioner's husband is entitled to inherit the school started by his late father and he can administer the affairs of the said school in exercise of his management powers. As he is fully empowered to appoint a manager under Section 24(2) of the Act and the prohibition applies only with regard to appointment of Manager of the School his powers to appoint a manager cannot be taken away under the provisions of the Act. Hence, I cannot subscribe to the view expressed by my learned brother in WP No.14361 of 1996.
11. The next question that falls for consideration of this Court would be whether to decide the case myself or to refer the matter to a Division Bench for an authoritative pronouncement. As the dispute is going on for last one decade, I am inclined to pass orders myself to facilitate the aggrieved party to prefer an appeal questioning the correctness of the opinion expressed by me in which event the dispute will be resolved at the earliest. Instead of referring the matter to a Division Bench as there is a likelihood of keeping the issue pending indefinitely.
12. For the aforementioned reasons, I am inclined to set aside the impugned order dated 14-6-1997 and it is accordingly set aside.
13. At this stage Mr. Srinivas contended that under the statute an appeal to the Director of School Education and thereafter to the Government is provided and as the petitioner approached this Court without exhausting statutory remedies the writ petition has to be dismissed. In the light of the facts stated above I feel that the statutory remedy is not an efficacious and effective remedy in the light of the view expressed by a judgment of this Court and it is difficult to hold that these authorities can take different view of the matter when once the High Court expressed a view. Hence this is not a case where I can direct the petitioner to avail the alternative remedy provided under the statute. Accordingly, this contention is rejected.
14. Lastly, Mr. Srinivas brought to the notice of the Court that the Will under which the petitioner's husband inherited the school was questioned by his client by way of filing a suit in OS No.130 of 1998 before the Junior Civil Judge, Addanki. I reiterated the view -taken by a Bench of Kerala High Court that it is always open to the parties to agitate for their rights in a civil Court. Though belatedly the 5th respondent now seemed to have filed a suit questioning the validity of the Registered Will dated 1-4-1985, I make it clear that the decision rendered by me is subject to the result of the said suit.
15. In the result, the writ petition is allowed by quashing the order impugned dated 14-6-1997 and consequently a direction is given to handover the management of the School to the petitioner within 8 weeks from the date of receipt of the order.
16. In the circumstances, no order as to costs.