WP/9652/2005 of The Board of Education (Governing Council) Vs The Government of Andhra Pradesh, rep by Secretary, on 30 December 2005

O R D E R :

This writ petition has been filed challenging the proceedings of the RegionalDirector of School Education in Rc.No.9131/A2/2004, dated 20-03-2005 wherebyand where under the proposal for approval of the selection of the candidates ofcertain posts in the petitioner schools came to be rejected.

2. The facts of the case giving rise to filing of this writ petition in brief are:

The petitioner institution is a minority educational institution running various schoolsin Mahaboobnagar, Nalgonda, Ranga Reddy and Hyderabad District. The petitionersubmitted application to fill up 34 vacancies in teaching and non-teaching posts.The District Educational Officer-4[th] respondent granted permission to fill up 30 postsof teaching and non-teaching as against 34 posts. A further direction has been givento the petitioner by the 4[th] respondent to fill up aidded teaching and non-teachingposts as per the procedure laid down in G.O.Ms. No.1, dated 1-1-1994,G.O.Ms.No.75, dated 23-9-2002 and the instructions issued by the Commissionerand Director of School Education of A.P. Hyderabad. The District EducationalOfficer –4[th] respondent appointed a panel of subject experts comprising fourpersons and appointed the Deputy Educational Officer, Mahaboobnagar as hisnominee under proceedings dated 5-9-2003.

3. Notifications have been issued calling for applications from the eligiblecandidates. Written examination was conducted on 12-9-2003 and selectionprocess was over on that day itself. List of selected candidates was sent to theRegional Joint Director of School Education, Hyderabad for approval. In the meanwhile some complaints were made to the District Collector by unsuccessfulcandidates and thereupon some enquiry was conducted by 4[th] respondent-TheDistrict Educational Officer. Consequently, proceeding dated 19-9-2003 cancellingthe entire process of selection of candidates came to be issued by the DistrictEducational Officer. The relevant portion of the proceeding dated 19-9-2003 readsas follows:

“The Committee has also violated the instructions (7)(),(h) and(i) of the Commissioner & Director of School Education’sProcs. Rc.No.1000/B1-3/2002, dated 24-9-2002, the selectioncommittee has not published the key on the Notice Board afterthe written test is over and before valuation starts and all thecandidates have not been called for the Oral Test/Interviews,but the Committee in contrary to the above instructions,conducted the interviews in the ratio of 1:3. As a result of thisarbitrary Act, many candidates have deprived the marks of oraltest.

The receipt of the proceedings should kindly be acknowledgedby return of post.”.

4. Subsequently, the proceedings of the District Educational Officer came to thechallenged by the writ petitioner by filing W.P.No.21709 of 2003. Some other writpetitions came to be filed by both successful and unsuccessful candidates in theselection. This Court disposed of the batch of the writ petitions being W.P.Nos.21183, 21709, 22190 and 25027 of 2003 by order dated 24-08-2004. The operativeportion of the order reads as follows:

“Under the Rules, the District Educational Officer is notthe approving authority with regard to the appointment ofteaching staff and, therefore, I am of the view that the order ofthe District Educational Officer, dated 19-9-2003 cancelling thewritten test conducted on 12-9-2003 is illegal and withoutjurisdiction. Accordingly, the said order is set aside and themanagement of M.B. Schools is directed to send proposals fornecessary approval in respect of selected candidates who aresaid to have been selected pursuant to the written test heldon12-9-2003 to the Regional Joint Director of SchoolEducation, Zone-VI, Kachiguda, Hyderabad, if not alreadysent, within fifteen days from the date of receipt of a copy ofthis order. If any proposals are already sent and the same arereceived, the Regional Joint Director is directed to pass appropriate orders within a period of four weeks from the dateof receipt of a copy of this order. It is made clear that if theselections are in violation of the rules, it is open for thecompetent authority to take appropriate decision.

The writ petitions are accordingly disposed of. No orderas to costs.”

5. In pursuance of the orders passed by this Court, the Regional Joint Director ofSchool Education, Hyderabad considered the material brought on record afresh andissued proceedings Rc.No.9131/A2/2004, dated 20-3-2005. Paras 4 and 5 of theproceedings of the Regional Joint Director of School Education reads as follows:

“The D.Y.E.O., Mahabubnagar who is the nominee of D.E.O.has replied in her written statement that the management hasnot co-operated till the last minute in spite of her repeatedtelephone calls. Even at the eleventh hour also she says that,she has proposed for the postponement of examination but themanagement has not agreed to her proposal. Further she saysthat the candidates who gathered at the examination centerhave noisily and vociferously demanded for the immediateconduct of examination, as the conduct of examination waspostponed previously on 5-8-2003. At last the examinationwas conducted with the above irregularities.

The member from the management side has also accepted thenon-involvement of the DEO’s nominee and subject experts,inserting of question paper and he has also replied that he hasnot received any orders for appointing him as committeemember and participated in selection process on the oralinstructions of Secretary, which is also highly irregular”

In view of the above, the proposals for approval of theselection in respect of Management of the M.B.Schools,Mahabubnagar are not feasible for consideration since theselection committee has violated the rules and regulationsissued by the Govt. and C & DSE A.P. , Hyderabad and alsolapses in selection process. Hence, the proposals are herebyrejected and returned The D.E.O. Mahabubnagar has requested to take actionaccordingly”.

Proceedings of the Regional Joint Director of School Education are underchallenged in the writ petition.

6. B.Eranna came on record as Respondent No.5 as per orders in W.P.M.P.No.30342 of 2005 dated 10-11-2005.

Procedure

7. V.S.Bhargava has sworn to the counter affidavit filed on behalf of the respondentsNo. 1 to 4. It is stated in the counter affidavit that as per the proceedings of the 1[st]respondent (1000/B1-3/2002, dated 24-9-2002) the 4[th] respondent vide Pro. RC.No.C1/11609/2003, dated 5-9-2003 appointed subject experts for preparation ofquestion paper as per rules to fill up the vacant Aided teaching and non-teachingposts in Aided M.B.Schools in the District under the Supervision of the D.E.Osnominee (Dy. Educational Officer, Mahabubnagar). The following are appointed assubject experts.

Sl. Name of the Officer concerned Subject No. designation and place of working Expert

1. Sri Narasa Raju, HM, Govt. H.S. Maths Police, Line, Mahabubnagar.

2. Sri Venkateshwar Goud, School Asst. Social

3. Sri Venkata Chary, TP. Gr.I Telugu

4. Sri J.Venkata Swamy, DM, Govt. Basic Drawing Master Practisinsg H.S. , Mahabubnagar.

The District Education Officer advised the nominee in all aspects in conducting thewritten test and interview. Where as the management violated the procedure andissued the question papers which were prepared with their private subject expertsbut not by the subject experts sponsored by the District Educational Officer-4[th]respondent. I deem it appropriate to refer relevant portion of the counter affidavit andit is thus; “It is true among the (4) subject experts mentioned aboveSl.No. 2 was not attended the schedule. The 4[th] respondentadvised the nominee in all aspects in conducting the writtentest and interview conducting peacefully, where as themanagement violated the procedure and issued the questionpapers which were prepared with their private subject experts but not by the subject experts sponsored by the 4[th] respondentfor which I am here with enclosing the orders copies ofindividuals subject experts for your perusal. Further, submitthat the following are the subject experts for written test for thevarious posts, sponsored by the department only.

1. Sri Sudhakar Reddy, School Assistant, Govt. HighSchool, Kummarwadi, Mahabubnagar.School, Kummarwadi, Mahabubnagar.

2. Sri Vijaya Kumar, School Assistant, Govt. High School,Police Line, Mahabubnagar.Police Line, Mahabubnagar.

3. Sri Rajasekhar Reddy, School Assistant, Govt. HighSchool, Police Line, Mahabubnagar.School, Police Line, Mahabubnagar.

4. Sri Kumara Swamy, School Assistant, Govt. HighSchool, Shahbazar, Mahaubnagar.School, Shahbazar, Mahaubnagar.

The following are the Officers executed the interview of thedifferent posts.different posts.

1. Smt. O.Prabhavathamma, Dy. Ednl. Officer,Mahabubnagar Nominee of the Dist. EducationalOfficer.Mahabubnagar Nominee of the Dist. EducationalOfficer.

2. Sri Solomon, Chairman, M.B. Management.

3. Sri George, Secretary, M.B Management.

4. Sri B. Ramulu, Head Master, Aided M.B.H.s. Gadwal.

5. Sri Narasa Raju, Head Mater, Govt. High School, PoliceLine Mahabubnagar.Line Mahabubnagar.

6. Sri Venkata Charyulu, TP. Gr.I Govt. H.S Kumarwadi,Mahaubnagar.Mahaubnagar.

7. Sri Venkata Swamy , DM. Govt. Basic Prac. H..Mahabubnagar.Mahabubnagar.

In reply to para No.7. The written and Oral test are conductedon 12-9-2003 from 10-00 a.m. to 12-30 p.m. and 2-00 p.m. to 4-00 p.m. on the threatening of the management, the sponsoredsubject experts by the respondent were simply signed on theselection list which contained the marks secured by thecandidates in written test and interview. This process was notstopped by the nominee of the D.E.O. As per the DEOsnominee’s explanation LR. No. 83/2003, dt. 15-9-2003 wherein she stated that regarding question papers he ha discussedwith the Secretary M.B. Management, Mahabubnagar.

I was argued with him where are the Government orders toprepare the question papers from the management side only.

It clearly indicates that the management has not accepted thequestion papers prepared by the subject experts sponsored bythe 4[th] respondent and arised leakage of question papers.

In reply to Para NO.8 by violating the orders NO.C1/11609/2002, dated 16-9-2003 and 24-9-2003 of the 4[th]respondent the petitioner continuing the selected candidateson violation of Rules and permitted them to work in their areaof operation of schools with effect from 15-9-2003 withoutapproval of the competent authority concerned.”

8. It is stated in the counter affidavit of 5[th] respondent that he has been qualified inthe written examination for the post of Drawing Teacher. Because of the petitionerconducting the interviews contrary to the Rules, the 4[th] respondent cancelled theselection test. He urged that he is entitled to be appointed for the post he applied.Para 7 of the counter affidavit reads as follows:

“I submit that as I am successful in the written test conductedby the Petitioner, I am entitled for my selection, but during theinterviews, the Petitioner herein has committed irregularities inthe selection process and that is the reason why the same isbeing cancelled. Hence, as I have been participated in theearlier selections, in the event if the Petitioner conductsselection afresh, I must be given an opportunity I am becomingover age by the time Petitioner conduct selections afresh.Hence, as I am being a party to the earlier judgment of thisHon’ble Court and also as I am a party to the selectionsconducted by the Petitioner, I am necessary party to theimpleaded as Respondent in the present Writ Petition. As thePetitioner fails to implead me as a Party Respondent, I amconstrained to file implead petition along with this Counteraffidavit.”.

9. Heard learned counsel for the petitioner and learned Government Pleader forSchool Education appearing for Respondents No. 1 to 4.

10. Learned counsel appearing for the petitioner submits that the petitionerinstitution is a minority institution and the rights guaranteed to the institution areprotected under Article 30 (1) of the Constitution. He further submits that selectionprocess has been conducted in accordance with the Rules and therefore, the

selection list sent by the petitioner institution is required to be approved. A furthersubmission has been made that the Enquiry initiated by the District Collector ismotivated one and therefore, the entire process in pursuance of the initiation madeby the District Collector is null and void. In support of his submission reliance hasbeen placed on the decision of Division Bench of this Court in W.P.Nos. 11750 of2000 (Modern High School Zamisthanpur, Musheerabad, Hyderabad Vs.Government of A.P. rep. by the Secretary, Education Department, Secretariat,Hyderabad and others). In the above referred judgment violation of Rule 2-A whichhas been inserted in Rule 12 by way of G.O.Ms.No.76, dated 2-11-1999 came up forconsideration. On elaborate discussion it has been held in the cited decision asfollows:

“The Supreme Court agreed with the view of the High Court.The Madhya Pradesh High Court found that, all that sub-clause (a) had done was that it enabled the State Governmentto fix the scales of pay and laid down the general mode orprocedure for recruitment of teachers and other employees. Itdid not enable any interference by the Government in thechoice of personnel selected by that mode which continues toremain with the management of the institution. Therefore, inour view this judgment has not at all altered the law laid downby the nine Judges Bench of the Supreme Court to which areference has been made herein above.

Now, what is done by amendment of rule 12 is that the powerof appointment itself is taken away by the State Governmentfrom the managements of the minority institutions and even theGovernment ha restricted its powers of appointment only to theextent of surplus staff. The net result would be that, neither theState Government nor the institutions would have the choice totake up the best amongst the available qualified candidates.Ex-facie the amendment is ultra vires to Article 30(1) of theConstitution of India and therefore, is struck down”.

11. Learned Government Pleader for School Education appearing for respondentsNo. 1 to 4 submits that since certain irregularities came to be noticed in the processof selection, an enquiry has been initiated and basing the enquiry report, selectionlist came to be cancelled and therefore, respondents cannot found fault. He furthersubmits that even if the petitioner is aggrieved by the order impugned in the writpetition, a remedy by way of appeal under Section 89 of the A.P. Education Code isproceeded and therefore, the writ petition is misconceived. Various other contention have been raised which are not required to be dealt with in view of the ordersproposed to be passed.

12. It is apposite to refer Section 89 of the Andhra Pradesh Education Code, 1982which reads as follows:

“Sec. 89. Appeals:- Save as otherwise provided in this Act,-

13. Undisputedly, the order impugned in the writ petition came to be passed by theRegional Joint Director of School Education. Since a statutory remedy is available tothe petitioner, the petitioner has to exhaust the said remedy before invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

14. In the result, the writ petition is disposed of giving liberty to the petitioner to filean appeal as provided under Section 89 of the Andhra Pradesh Education Code,1982 within thirty days from today and on such appeal being filed by the petitioner,the concerned authority has to dispose of the same within four weeks thereafter. Noorder as to costs.

_____________________________

Justice B.Seshasayana Reddy

30[th] December, 2005C.C. in a week

B/o

THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY

W.P.No. 9652 OF 2005

30th December, 2005