ORDER
1. All these matters involve common questions of fact and law to be decided by this Court. At the interlocutory
stage, all the learned Counsel submitted that the matters be taken up and disposed of finally. Hence, all the matters are being disposed of by this common order.
2. WP No.14749 of 1999 is filed by Jyothi Junior College represented by its President and Correspondent questioning the order issued by the first respondent in G.O. Rt. No.642 – Education (CE.III) Department, dated 22-4-1999 (‘the impugned G.O. for brevity’). WPNo.19911 of 1999 is filed by the Staff Association of the said Junior College praying that they be paid salaries for the months for which salaries were not paid.
3. By the impugned G.O., the Government directed that Jyothi Junior College be closed by duly shifting the teaching and non-teaching staff to other needy colleges in the State and also transferring all the students in the Junior College to any other Junior College in Vijayawada. By the same impugned order, the affiliation of the Junior College for the academic year 1999-2000 was also cancelled.
4. As a consequence of the impugned G.O., the Commissioner and Director of Intermediate Education issued Proceedings in Re. No.l86S/JC5-2/96, dated 12-5-1999 directing the Regional Joint Director, Rajahmundry to send/transfer (he Lecturers in the Jyothi Junior College to other Junior Colleges in his jurisdiction. Accordingly, the Regional Joint Director in his Proceedings in Re. No.61/B2/97, dated 1-11-1999 has transferred all the Lecturers working in the Jyothi Junior College to other colleges in the place of Lecturers who are allegedly working on part-time basis. After coming to know of the Proceedings of the Regional Joint Director, those part-time Lecturers have filed writ petitions questioning the Proceedings of the Commissioner and Director of Intermediate Education as well
as Regional Joint Director. WP Nos.23436, 23437, 22640 and 24082 of 1999 deal with that aspect of the matter.
5. In the event of the impugned
G.O. being set aside, the consequential orders issued by the Regional Joint Director transferring the Lecturers of the Jyothi Junior College which were issued only on that ground would become insignificant and have to be set aside. Even otherwise, as submitted by the learned Counsel at the outset, this Court, on 19-7-1999, while admitting the writ petition ordered status quo as on that date with regard to giving effect or enforcing the orders of the Government in the impugned G.O. Therefore, the orders issued by the Commissioner and Director of Intermediate Education and the Regional Joint Director after the orders of this Court in WP MP No.18111 of 1999 will have to be read as having been passed subject to orders of this Court in the writ petition.
6. When these writ petitions were listed before me for admission, in view of the fact that the hearing of the case in WP No.14749 of 1999 was already commenced on 12-9-1999 and also having regard to the status quo orders passed by this Court on 19-7-5999, it was thought proper not to pass any further interim orders. In fact, the learned Government Pleader for Higher Education, Sri Salyanarayana Prasad, senior Counsel categorically sated before this Court on 18-11-1999 that for a period of one week the petitioners (part-time Lecturers in various Junior Colleges) will not be disturbed. Therefore, it can be presumed that part-time Lecturers who were sought to be replaced by the Lecturers on transfer from the Jyothi Junior College are still continuing in the respective posts as part-time Lecturers in various Junior Colleges. This is not seriously disputed.
7. For the purpose of dealing with the controversy in this case, WP No.14749
of 1999 may be taken as the lead case for the purpose of facts as well as legal issues that arise for consideration.
8. Jyothi Educational Society, which is a society registered under the Societies Registration Act, as submitted by the learned Counsel for the petitioner, obtained lease of a building along with considerable extent of open land from Public Works Department at or about 1970. The lease was given to this Educational Society for the purpose of running educational institutions. In 1971 or so, the Society constructed school buildings and started High School called Balvihar. The school is being run in the said premises. In the year 1976, the Society obtained necessary permission and started a Junior College. Later, the Board of Intermediate Education also accorded affiliation/ recognition in accordance with the Rules then in force. Be that as it may, to start with, the College started Intermediate classes with Science groups as well as Arts groups. Howcver,till 1981, the teaching and non-teaching staff posts in the said College were not admitted to grant-in-aid. The Government sanctioned grant-in-aid in 1981 and till 1997 the College faced no troubles.
9. For some reason or the other, since 1997, the strength in the Science group classes started decreasing. Therefore, the management requested the Andhra Pradesh Board of Intermediate Education and the Government that in view of the situation that Ihe Science group classes are not viable, the College may be permitted to close down two Science sections. In the meanwhile, it appears that an Honourable Member of Legislative Assembly from Jaggiahpet sent proposal to supersede the management of the Jyothi Junior College and appoint a Special Officer. It is not forthcoming from the record as to the reasons which weighed with the Honourable MLA for recommending to the Government to supersede the management.
10. According to Ihe averments in the writ affidavit, Ihe first respondent did not issue any notice and the petitioner received the impugned G.O. on 15-5-1999 through the second respondent, the Commissioner and Director of Intermediate Education. The petitioner herein immediately approached the first respondent by making a representation dated 15-5-1999 requesting the Government to reconsider the decision which manifested in the impugned G.O. The petitioner also enclosed a statement showing the particulars of student strength from 1991-92 to 1998-99 and no orders were passed on the representation. Therefore, the College approached this Court by filing WP No.14749 of 1999 on 15-7-1999. This Court, while admitting the writ petition, as already mentioned, ordered status quo on 19-7-1999.
11. The main submission made by the learned Counsel for the petitioner is that the impugned order is contrary to the provisions of Ihe Andhra Pradesh Education Act, 1982 (‘the Act’ for brevity), especially Section 21 of the Act, and is in gross violation of the Rules made in G.O. Ms. No.29, Education (Rules), dated 5-2-1987, called ‘the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987’ (hereinafter called ‘the Rules’), especially Rule 11 of the Rules. It is also submitted that apart from the provisions of the Act and the Rules, the impugned G.O. is issued in gross violation of principles of natural justice ana the petitioner college was not supplied with a copy of the proposal by the MLA, the alleged report of the Regional Joint Director, Rajahmundry and/or that no notice was issued calling tor explanation from the College.
12. The learned Government Pleader for Higher Education, Sri Satyanarayana Prasad, learned senior Counsel, has made submissions after obtaining instructions.
Though he prayed for filing of the counter affidavit, permission was refused because it is not seriously disputed that no notice was given to the College before passing the impugned G.O. It is, however, strenuously contended by the learned Government Pleader that for the academic year 1999-2000, the Junior College has become defunct and no admissions to first year Intermediate course were undertaken. It is further submitted that the lease of the premises by the Public Works Department in favour of the Jyothi Educational Society came to an end the moment the impugned order of the closure of the Junior College was passed and, therefore, even if the impugned G.O. is set aside, the petitioner College cannot be run in the premises which was leased out by the Public Works Department at or about 1972.
13. The learned Counsel, Sri P. Prabhakar Rao submitted that in view of the etfect of the impugned G.O. that the members of the petitioner association (WP No.19911 of 1999) shall be transferred to needy colleges, their salaries are withheld. Therefore, he sought for a direction to the Government to pay the salaries from the month of June, 1999 till date. It may be passingly mentioned that in WP No.14749 of 1999 also, 15 Lecturers have filed a petition to im plead themselves as respondents 4 to 18 in the main writ petition. The other learned Counsel appearing in other matters have submitted that all the petitioners have been working in Junior Colleges as part-time Lecturers for a period of about two to five years and at that point of time especially when their cases are being considered for regularisation, if the orders of the Regional Joint Director are implemented replacing them with the Lecturers of Jyothi Junior College, their entire service as part-time Lecturers will go waste and they will be pre-empted from claiming any right of regularisation.
14. Having regard to the rival contentions in all the writ petitions, the following points arise for consideration:
(1) Whether the impugned G.O. No.642-Education, dated 22-4-1999 is in accordance with the provisions of the A.P. Education Act and relevant Rules of 1987 and whether the same is not in violation of principles of natural justice;
(2) Whether the orders passed by the Regional Joint Director on 1-11-1999 transferring the Lecturers of Jyothi Junior College, Vijayawada to various Junior Colleges is valid and sustainable;
(3) To what relief?
In re Point Nos. 1 and 2:
15. The two points that arise for
consideration may conveniently be dealt with together.
16. A.P. Education Act, 1982 is a consolidation Act aimed at reforming, organising and developing the entire
education system in the State. Chapter VI of the Act deals with various provisions governing establishment, administration and control of various educational institutions. Section 20 of the Act deals with permission for establishment of educational institutions and no educational agency is entitled to start any educational institution – elementary, upper primary, Intermediate or higher education institutions – unless the competent authority specifically permits such agency to start such Institutions. As per clause (12) of Section 2 of the Act, competent authority means, an officer authorised by the Government by notification to perform the functions of the competent authority under the Act for such area and for such purposes as may be specified in the notification.
17. Section 21 of the Act specifically deals with grant or withdrawal of recognition of educational institution. Sub-section (3) of Section 21 lays down the conditions subject to which the competent authority is empowered to withdraw recognition of the institution or take such other action as is deemed necessary. Either before withdrawing recognition or taking such other action, under sub-section (2) of Section 21, the competent authority shall give the manager of the institution an opportunity of making representation against such withdrawal or the other action. Clause (28) of Section 2 defines manager to mean in relation to a private educational institution, the person nominated to manage the affairs of the institution under sub-section (2) of Section 24 of the Act. Be that as it may, sub-section (3) of Section 21 reserves plenary power to the Government and the same reads as under:
“21(3) Where the Government are of opinion that the recognition granted to any local authority, educational institution or private educational institution should, in the public interest be withdrawn, they may, after giving one month’s notice to the manager of such institution to make any representation, withdraw, by notification, the recognition granted to the said institution.”
18. In the context of the present group of cases, the provisions of subsection (4) of Section 21 of the Act are also relevant. Sub-section (4) lays down that notwithstanding anything in any other law for the time being in force, no educational institution which has not been recognised or whose recognition has been withdrawn under the Act, shall be entitled to receive grant-in-aid from the State funds or other financial assistance from the Government or to send its candidates for any examination in a course of study conducted under the Act.
19. The Governor of Andhra Pradesh has promulgated the Rules for the purpose of granting permission, recognition/affiliation and withdrawal of such permission, recognition or affiliation. These Rules made in exercise of powers under Sections 20 and 21 read with Section 99 of the Act are issued in G.O. Ms. No.29, Education (Rules), dated 5-2-1987. According to the definition clause of the Rules, ‘competent authority’ means the authority who is competent to grant permission/recognition/affiliation to the educational institutions. Rules 3 to 8 deal with granting or withdrawing of permission and power to refuse permission. As per Rule 3 of the Rules, the authority to grant permission to start a Junior College is the Commissionerate (A.P. State Council for Higher Education which is a body constituted under the A.P. State Council for Higher Education Act, 1988). Rules 9, 10 and 11 deal with the power of the competent authority to grant or withdraw recognition/ affiliation and conditions for grant/ withdrawal of permission/recognition/ affiliation.
20. As per the impugned order, the first respondent ordered for cancellation of affiliation and for closure of the petitioner College. The impugned order also says that the affiliation of the petitioner College is cancelled for the academic year 1999-2000. Therefore, it is necessary to notice Rule 11, which reads as follows:
“11. Conditions for withdrawal of permission/recognition/affiliation: The competent authority shall withdraw permission/recognition/affiliation granted to the private educational institution under the;following circumstances:
(1) When an institution, including a permanently recognised/affiliated institution (both non-minority or minority) in the opinion of the competent authority, has failed to fulfil any of the conditions prescribed, the
permission/recogtiition/affiliation accorded to that institution shall be withdrawn permanently or for any specified period.
(2) When permission/recognition/ affiliation of the institution is to be withdrawn, the educational agency shall be given an opportunity to give its explanation for failure to comply with the prescribed requirements, within a month. If the educational agency is prepared to rectify the defects communicated by it, the competent authority may give a reasonable time not exceeding three months to rectify the defects. If, in the opinion of the competent authority, the educational agency has rectified the defects pointed out, the pennission/recognition/affiliation may be continued subject to such further conditions and instructions that may be deemed necessary. But if the educational agency fails to rectify the defects within the given time, the permission/recognition/afiiliation shall be withdrawn.
(3) (a) The competent authority after withdrawing permission shall recommend to the competent authority concerned to withdraw the recognition/affiliation granted to the institution in question who shall take necessary action accordingly.
(b) The competent authority for granting of recognition/affiliation may also initiate action to de-recognise/affiliate any institution for failure to fulfil the conditions prescribed for granting/continuing the recognition/affiliation accorded to the institution and recommend to the competent authority for granting of permission, to take steps to withdraw the permission
granted to establish the institution, who shall take necessary action accordingly.”
21. When any educational institution has failed to fulfil the conditions of permission or recognition, the competent authority shall give an opportunity to give an explanation. A clear one month’s notice is required to be given to the educational agency. After receiving the explanation, if the competent authority is not satisfied, the educational agency has to be given three months time to rectify the defects and if the defects are rectified, the permission/ recognition will be continued and if the educational agency failed to rectify the defects, the permission/recognition shall be withdrawn. Sub-rule (2) of Rule 11 contemplates a pre-decision notice. An opportunity shall have to be given to the erring management to rectify the defects.
22. Further, be it noted that when the competent authority for granting permission is different from the competent authority for according recognition/affiliation, the first step is for the competent authority to withdraw permission for failure on the part of the educational agency in complying the conditions of permission. After the permission is withdraw, the competent authority for withdrawing permission then shall recommend to the competent authority concerned to withdraw the recognition/ affiliation granted to the institution.
23. However, as already mentioned, sub-section (3) of Section 21 of the Act vests the Government with plenary power to withdraw the recognition granted to the institution on its own. The only requirement is that a one month’s notice to the manager of the institution shall have to be given. In any case, the competent authority to withdraw the permission of an educational institution is not the Government. Whoever be the competent authority for withdrawing the permission, the Government can still
pass such an order by virtue of subsection (3) of Section 21 of the Act. The same is not the case while withdrawing the permission granted to an educational institution under Section 20 read with Rules 3, 4 and 5 of the Rules. In fact, it is not seriously disputed in this case that the authority competent, at present, to give permission to the petitioner College is the A.P. State Council for Higher Education and in this case no order as such has been passed by the State Council withdrawing permission. The effect of the order of the first respondent as communicated in G.O. Rt. No.642, dated 22-4-1999 is the cancellation of affiliation/recognition which could only be under sub-section (3) of Section 21 of the Act. 24. Therefore, the order passed by the first respondent is not only not in accordance with Rule 11 of the Rules and also not in accordance with sub-section (3) of Section 21 of the Act for non-complying with the mandatory requirement of one month’s notice. The same has to be held illegal.
25. The following circumstances indicate that the impugned order is also passed without proper application of mind. Firstly, the basis is an alleged representation made by the Hon’ble Member of Legislative Assembly, Jaggiahpet. A reading of the impugned order says that the said MLA proposed that the management of the petitioner College be superseded and a Special Officer be appointed pending further action on the part of the Government to take over the College. Sub-section (3) of Section 24 of the Act empowers the competent authority to suspend the management and appoint a Special Officer till the management is reconstituted. Even such an order cannot be passed without giving notice and without giving an opportunity to the management. The Government is not entitled to take over the management of the College or the entire
educational institution lock, stock and barrel. There is no such procedure contemplated under the Act except the procedure to a limited extent as indicated under Section 27 of the Act. The said section lays down that in the event of private educational institution being closed down or discontinued (as per the provisions of Section 26), the manger shall have to hand over the custody of property and records to the competent authority. Any closure or discontinuation can only be by the Society as per the provisions of Section 26 of the Act. Therefore, closure of an educational institution by Government or any authority is something which is alien to the scheme of the Act.
26. Secondly, the Government seems to have requested the Commissioner and Director of Intermediate Education to cause an enquiry conducted into the affairs of the petitioner College. In compliance thereof, the Regional Joint Director of Higher Education, Rajahmundry, the third respondent appears to have submitted an enquiry report to the effect that the petitioner College is running with uneconomic strength from 1991-92 and suggested for adjustment of students in neighbouring colleges as there is no need for such College in Vijayawada. The impugned order is silent whether any notice is issued to the management of the petitioner College or not. In fact, it is not seriously disputed that the Regional Joint Director has not given any notice to the petitioner College while submitting the enquiry report to the Commissioner and Director of Intermediate Education. Therefore, the report of the third respondent cannot be the basis for passing the impugned order’. Lastly, the Hon’ble MLA requested for appointment of a person in-charge and the Regional Joint Director recommended for closure of the College and ultimately the Government issued an order cancelling affiliation of the petitioner College while ordering closure of the College.
27. The above three circumstances would leave this Court in no doubt that the impugned G.O. was passed without any application of mind. I may hasten to add that in the scheme of the Act, the Government or the appropriate competent authority is empowered to withdraw the permission or withdraw recognition/ affiliation. The Government or competent authority cannot compel to close down the College though under sub-section (4) of Section 21 of the Act the grant-in-aid from the State funds Government shall cease to flow to the erring educational institution the moment recognition of such institution is withdrawn under the Act.
28. In view of this, I am of the considered opinion that the impugned G.O. is passed in great haste and not for the purpose for which the power of withdrawing recognition is conferred on the competent authority or the Government. It is well settled that when the power is exercised by an authority for a purpose other than the one for which such power is donated, the same shall be exercise of power for extraneous reasons and suffers from mala fides not in the sense that it is an order passed with personal malice, but in the sense that power is exercised for purpose not germane for exercise of the same.
29. For these reasons, Point Nos.l and 2 are answered in negative, in favour of the petitioner and against the respondents. Accordingly, the impugned order in G.O. Rt. No.642, Education (CE.III) Department, dated 22-4-1999 is declared illegal and the same is set aside.
30. In WP No.19911 of 1999 filed by the Staff Association of Jyothi Junior College, they prayed this Court for a direction to the respondents 1 and 2 namely, State of Andhra Pradesh represented by its Principal Secretary to Government in Education Department and the Commissioner and
Director of Intermediate Education to pay their salaries from June, 1999 onwards. There is no denial of the fact that salaries are not paid presumably because an order of closure was passed and all the Lecturers were directed to be transferred to the colleges where the staff is required. As already observed, when once an order withdrawing affiliation/recognition is passed under sub-section (4) of Section 21 of the Act, the grant-in-aid shall cease to be paid. Now that in WP No. 14749 of 1999 filed by the College, the order of closure has been declared illegal and set aside, all the Lecturers working in Jyothi Junior College are entitled for their salaries. A direction shall go to the respondents to release and pay the salaries directly to the Lecturers within a period of four weeks from the date of receipt of a copy of this order.
31. In all other writ petitions, the part-time lecturers who have been working for more than two to five years have approached this Court questioning the order of the Regional Joint Director of Higher Education, Rajahtmundry in Re. No.61/B2/97, dated 1-11-1999. In all the writ petitions, they prayed for a declaration to declare that the impugned order of the Regional Joint Director is illegal and for a further direction to the respondents to absorb the petitioner as Junior Lecturers in the respective college, In the Proceedings dated 1-11-1999, the Regional Joint Director transferred the Lecturers working in Jyothi Junior College to various colleges in which the petitioners in these writ petitions are working. The only reason is that pursuant to G.O. Rt. No.642, dated 22-4-1999 under which the Jyothi Junior College was ordered to be closed, all the Lecturers of the said College were directed to be adjusted in other aided junior colleges on deputation. In view of the orders in WP No.14749 of 1999 setting aside the Government Order in G.O. Rt. No.642, dated 22-4-1999, the very foundation
of the order of the Regional Joint Director, Rajahmundry has gone and hence the same is unsustainable. All these writ petitions shall stand disposed of directing the respective Junior Colleges not to relieve the petitioners from the posts of Junior Lecturers in the respective subjects and also consider their cases for regularisation/ absorption in accordance with various Rules and Government instructions issued from time to time duly applying the principle of reservation as per communal roster.
32. In the result, WP No.14749 of 1999 filed by Jyothi Junior College is allowed and WP No.19911 of 1999 filed by the Staff Association of the Jyothi Junior College is disposed of directing the State Government and the Commissioner and Director of Intermediate Education to pay the salaries directly to the teaching and non-teaching staff, within a period of four weeks from the date of receipt of a copy of this order and all the writ petitions being WP Nos.23436, 23437, 22640 and 24082 of 1999 are disposed of setting aside the order of the Regional Joint Director of Higher Education, Rajahmundry in Proceedings No.61/B2/97, dated 1-11-1999 with a further direction to all the competent authorities to consider the case of the part-time Lecturers in these colleges for absorption/regularisation in accordance with the Rules/Administrative instructions, if they are eligible, suitable and qualified to hold the same duly following the rule of reservation as per communal roster. There shall be no order as to costs.