REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.9541 of 2007
GOVT. OF A.P. & ORS. ... PETITIONERS
Vs.
SRI SEVADAS VIDYAMANDIR HIGH
SCHOOL & ORS. ... RESPONDENTS
WITH
S.L.P.(C) No.10945 of 2007
AND
S.L.P.(C) No.469 of 2011
AND
S.L.P.(C) No.15231-32 of 2011
J U D G M E N T
ALTAMAS KABIR, J.
1. Two Special Leave Petitions, being SLP (C)
Nos.9541 of 2007 and 10945 of 2007, arising out of
the judgment and final order dated 29th December,
2006, passed by the Andhra Pradesh High Court
been taken up for consideration together, along
with SLP(C)No.469 of 2011, which is directed
against the judgment and order dated 9th July, 2009,
passed by the said High Court in W.A.M.P.No.661 of
2008 in W.A.No.954 of 2009 and SLP(C)Nos.15231-32
of 2011, which are directed against the judgment
and order 17th August, 2010, passed by the said High
Court in W.A.No.1868 of 2003 and W.P.No.24066 of
2004. Inasmuch as, SLP(C)Nos.469 of 2011 and
15231-32 of 2011 arise out of different orders of
the Andhra Pradesh High Court, the same will be
dealt with separately, although, they have been
taken up for hearing along with the other Special
Leave Petitions.
2. For the sake of convenience, we shall refer to
the facts in SLP(C)No.9541 of 2007 (Government of
Andhra Pradesh & Ors. Vs. Sri Sevadas Vidyamandi
High School & Ors.) in deciding the matters.
3
3. The subject matter of the various writ
petitions, which were disposed of by the learned
Single Judge of the Andhra Pradesh High Court,
culminating in the various appeals, which were
disposed of by the common judgment dated 29th
December, 2006, is the effect of the ban order
imposed by the State Government vide Memo
No.1280/COSE/A2/2004-4 dated 20th October, 2004, on
the filling up of existing vacancies in the aided
posts of teachers where the recruitment process
had already been initiated by the management of the
private schools. The learned Single Judge, who had
heard the writ petitions, had declared that the
said ban would not be applicable to the recruitment
process already initiated by the management of the
private schools for filling up the vacant aided
posts of teachers prior to the coming into effect
of the aforesaid memo. The learned Judge had give
a further direction to the said authorities to
allow the writ petitioners to complete the process
4
of selection. In some cases, a further prayer was
made that the concerned authorities be also
restrained from transferring teachers from on
school to another by declaring them surplus and to
release the amount of salaries payable to the
teachers appointed against the aided posts.
4. For the sake of convenience, the Division Bench
of the Andhra Pradesh noted the facts from the
paper book of W.A.(S.R.)No.121938 of 2005, filed by
the Government of Andhra Pradesh and Others against
an order dated 9th March, 2005, passed by the
learned Single Judge in Writ petition No.22804 of
2004, i.e., C.A.M. High School, Nellore Vs.
Government of Andhra Pradesh and others, wherein,
pursuant to leave granted, a prayer had been made
for quashing the impugned Memo dated 20th October,
2004, along with Rc.No.140/B2-1/2005 dated 3rd
November, 2005, issued by the Director of School
Education, Andhra Pradesh, Hyderabad.
5
5. C.A.M. High School, Nellore, is a private aided
school established by Samavesam of Telugu Baptist
Churches, wherein all the posts of teachers
sanctioned for the school are aided posts. In
2004, the management of the school approached the
District Education Officer, Nellore, for grant of
permission to fill up the existing vacant posts.
The said officer, by his letter dated 17th
September, 2004, to the Regional Joint Director,
School Education, Guntur, recommended grant of
sanction to the management of the school to fill up
the vacant aided posts. Such permission was duly
granted by letter dated 22nd September, 2004, which
has been reproduced in full in the judgment of the
Division Bench of the Andhra Pradesh High Court.
Pursuant to such permission being granted by the
Regional Director of School Education, Guntur, the
management of the school initiated the recruitment
process by requesting the District
Officer, Nellore, to forward the names of eligible
candidates and also by publishing advertisements in
two daily newspapers inviting applications for
filling up the vacant posts.
6. While the recruitment process was underway, the
school was informed that the Government had issued
the above-mentioned Memo dated 20th October, 2004,
imposing a ban on the filling up of the vacant
posts and, therefore, the selection process could
not be completed. The management thereupon filed
Writ Petition No.22804 of 2004 for a declaration
that the decision contained in the said Memo dated
20th October, 2004, was not retrospective and the
same could not, therefore, be applied to the
ongoing process of recruitment initiated for the
purpose of filling up the vacant aided posts for
which permission had already been granted by the
competent authority. As was noted by the Division
Bench, in the counter filed by the
Education Officer, Nellore, it was not disputed
that in furtherance of the sanction granted by the
Regional Joint Director, Guntur, the process of
recruitment of 8 teachers had been initiated by the
management of the school and that Shri M.
Ramalingam, Deputy Educational Officer, had been
nominated as the departmental representative on the
Staff Selection Committee. In fact, the date of
interview had been fixed in consultation with Shri
Ramalingam, but the same could not be completed on
account of the promotion of Shri Ramalingam as the
District Education Officer.
7. Thereafter, the management of the school suo
motu fixed 14th December, 2004, as the date of the
interview, but, although, the interviews were held,
no further steps could be taken up on account of
the ban order imposed by the State Government vide
Memo dated 20th October, 2004. The Division Bench
observed that the learned Single Judge had taken
note of the fact that while permission had been
given to fill up the vacant posts on 22nd September,
2004, the Memo in question was issued subsequently
on 20th October, 2004.
8. Various appeals had been filed by the State of
Andhra Pradesh against the said decision of the
learned Single Judge before the Division Bench.
While the appeals were pending, the Government
began a process of rationalization for filling up
all the vacant posts. Taking note of the same, the
Division Bench adjourned the hearing of the appeals
with liberty to the counsel for the writ
petitioners in one of the cases to comprehensively
amend the pleadings and also to challenge the
legality of the Memo dated 20th October, 2004, if so
advised. In furtherance of such leave, the writ
petition filed by the C.A.M. High School, Nellore,
was amended to challenge the legality of the said
Memo dated 20th October, 2004.
Division Bench dismissed the appeals filed by the
Government of Andhra Pradesh and allowed the writ
petitions filed by the management of the private
schools and directed that they would be free to
appoint selected candidates and seek approval of
such appointments from the Competent Authority.
The Division Bench also quashed the exercise of
rationalization undertaken in furtherance of the
interim order dated 31st October, 2005, together
with the directions contained in the letter dated
3rd November, 2005, issued by the Director of School
Education, with liberty to the Competent
Authorities to undertake a fresh exercise of
rationalization, which might lead to certain
teachers being declared surplus and for their
absorption.
9. Appearing for the Government of Andhra Pradesh,
Mr. P. Vishwanatha Shetty, learned Senior Advocate,
submitted that the ban order imposed by the State
Government, vide Memo dated 20th October, 2004, came
into operation in respect of appointments of
teachers in private aided institutions in the
State. Mr. Shetty submitted that the Government of
Andhra Pradesh, which had the full authority to
extend grant-in-aid to educational institutions,
also possessed the consequential and incidental
power to adjust the posts covered under the grant-
in-aid scheme and to transfer personnel from one
institution to another. Since a decision had been
taken up by a High Power Committee presided over by
the Chief Minister, its decision was final and
conclusive and it was not open to the High Court to
scrutinize the same. It was submitted that in
certain eventualities it could become necessary to
declare staff of a school to be surplus and to
transfer them to other schools and the power of the
Government in such cases could not be curtailed.
Mr. Shetty submitted that it is to meet such
eventualities that a decision had been taken by the
State Government to rationalize the staff pattern
of the different institutions on a need-based
basis.
10. On the other hand, it was emphatically argued
on behalf of the respondent School that the Memo
dated 20th October, 2004, did not have retrospective
effect and could not, therefore, stultify the
recruitment process initiated by the management of
private aided schools where permission of the
Competent Authority had been given prior to 20th
October, 2004. Accordingly, it was incumbent on
the part of the Competent Authority to grant
approval for the appointments made pursuant to the
permission granted prior to 20th October, 2004, to
the private aided schools for filling up the vacant
posts in the school.
11. Holding the brief on behalf of Ms. Sunita Rao,
learned Advocate, appearing for the respondent
schools, Ms. Mahalakshmi Pavani, learned Advocate,
submitted that as had been held by the Division
Bench of the Andhra Pradesh High Court, the
rationalization process was violative of Rule
10(17) of the A.P. Educational Institutions
(Establishment, Recognition, Administration and
Control of Schools Under Private Management) Rules,
1993, inasmuch as, although, the said statutory
Rules stipulated that the strength of students in
private aided schools for two consecutive years
would be the determining factor for transfer of
surplus staff, the State had resorted to a wholly
whimsical and arbitrary method to determine such
surplus staff. Ms. Pavani submitted that in any
event, having permitted the schools in question to
fill up the vacant grant-in-aid posts after taking
into account the need and the roll and attendance
of students, it was no longer open to the State
Government to adopt a different posture on account
of the Memo dated 20th October, 2004, which was, in
any event, prospective and not retrospective. Ms.
Pavani submitted that interviews had been duly
conducted on 14th December, 2004, for filling up the
vacant posts in question, but the State Government
had quite unreasonably refused to allow the
recruitment process to be completed and to grant
approval to candidates who had already been
interviewed and had been selected for appointment
12. Having considered the submissions made on
behalf of the respective parties, we are of the
view that no interference is called for with the
judgment and order of the Division Bench of the
High Court. There is no dispute that the Memo
dated 20th October, 2004, imposing a ban on
recruitment to grant-in-aid posts was issued after
the schools in question had been given permission
by the State authorities to fill up the vacant
posts in the schools being managed and run by the
writ petitioners, who are the respondents in these
Special Leave Petitions. There is also no dispute
that the said Memo was not given retrospective
effect so as to negate the approval already given
for filling up the grant-in-aid posts. The State
Government and its authorities could not
therefore, contend that the rationalization process
which had been introduced, would also apply in
respect of the private aided schools, where the
process of recruitment had already been commenced
pursuant to the approval granted earlier.
Furthermore, as was submitted by Ms. Pavani, even
the approval which was granted for filling up the
vacant aided posts, had been granted after due
scrutiny as to the requirements of the schools in
question. Since it is well-settled that
administrative orders are prospective in nature,
unless they are expressly or by necessary
implication made to have retrospective effect,
there is no need to refer to the decisions cited by
Ms. Pavani, appearing on behalf of the respondent
schools.
13. As indicated hereinbefore, we, therefore, see
no reason to interfere with the judgment and order
of the Division Bench of the Andhra Pradesh High
Court impugned in these Special Leave Petitions and
the same are accordingly dismissed.
14. As far as SLP(C)Nos.15231-32 of 2011 are
concerned, the same have been filed by the
Government of Andhra Pradesh, represented by its
Principal Secretary, Education Department,
Hyderabad, against Shaik Lal Mohammed and others.
These Special Leave Petition are directed against
the orders in the Writ Appeals filed by the
Correspondent, Asafia High School, Malakpet,
Hyderabad, against Shaik Lal Mohammed and others.
The school was aggrieved by the order of the
learned Single Judge in a writ petition filed by
two employees of the school for a direction upon
the State authorities to convert their posts into
Class IV posts with effect from 9th June, 1980 and
16th March, 1981, respectively, and to pay them
their arrears of salaries, which, according to
them, were due. The two respondents had worked as
sweeper and gardener-cum-watchman from 9th June,
1980 and 16th March, 1983, respectively. It was
their claim that since their posts had been
admitted into the grant-in-aid scheme and they had
been appointed as full-time contingent employees,
they were entitled to claim the benefit of certain
Government Orders under which they were entitled to
be converted as employees on the last grade service
and the salary attached to such grade.
15. Claims of the said respondents were rejected
by the State authorities on the ground that the
posts had not been created under the orders of the
Competent Authority and they had not been in
service for a period of 10 years as on 1st April,
1985. Furthermore, they had not acquired the
minimum educational qualification of Class VII as
on the day G.O.Ms.No.259 dated 18th June, 1993, had
been published. The learned Single Judge held that
the said G.O.Ms. dated 18th June, 1993, was
applicable to the said two respondents, who were
the writ petitioners, and since the said findings
had not been challenged by the Government, they had
become final and, accordingly, the said respondents
were entitled to have their posts converted into
Class IV posts. Consequently, the order of
rejection passed by the Regional Joint Director,
Hyderabad, dated 6th April, 2004, was set aside and
the writ appeal filed by the State against the said
decision of the learned Single Judge was dismissed
and the writ petitions filed by the said respondent
Nos.1 and 2 were allowed.
16. It is in the light of the finding of the
Division Bench of the High Court that findings of
the learned Single Judge, had not been challenged,
that G.O.Ms.No.259 dated 18th June, 1993, was made
applicable to the petitioners. As the same had
become final as between the writ petitioners and
the State and it was no longer open to the State to
come to a different conclusion, we see no reason to
interfere with the impugned decision of the High
Court and the said Special Leave Petitions are,
accordingly, dismissed also.
17. As far as SLP(C)No.469 of 2011 is concerned,
the same has been filed against the judgment and
order dated 9th July, 2007, passed by the Division
Bench of the Andhra Pradesh High Court, rejecting
the prayer made on behalf of the State and the
State authorities to condone the delay of 366 days
in filing the writ appeal. Even the filing of the
Special Leave Petition was delayed by 107 days.
Since the subject matter of the writ petition was
also with regard to the application of the ban
order imposed by the Memo dated 20th October, 2004,
which we have already considered in SLP(C) Nos.9541
and 10945 of 2007 decided in the earlier part of
the judgment, we are not inclined to interfere with
the order of the Division Bench dismissing the writ
appeal on the ground of delay. The SLP(C)No.469 of
2011 is, therefore, dismissed in the light of the
decision rendered in the aforesaid Special Leave
Petitions and also on the ground of delay.
18. Having regard to the different circumstances in
which the Special Leave Petitions have been filed,
the parties will bear their own costs therein
............................................................J.
(ALTAMAS KABIR)
............................................................J.
(CYRIAC JOSEPH
............................................................J.
(SURINDER SINGH NIJJAR)
New Delhi,
Dated: 06.09.2011
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