ORDER
1. The petitioners, six in number, who are working as secondary grade teachers filed this Writ Petition questioning the Validity of the orders passed by the first respondent in G.O.RtNo. 1129 Education (PS) Department, dated 4-10-1996 whereunder the first respondent declared that their appointments are not in accordance with law, and also sought for a consequential direction to declare that their selections are proper and valid as per G.O.Ms.No.524 dated 20-12-1988. While Petitioner Nos. 1 to 5 are working in respondent No.4 – School, the Petitioner No.6 is working in Respondent No.5 – School. They filed a single writ petition on the ground that their cases were disposed of by the Respondent No. 1 by passing the impugned order. On an objection taken by this court, the Petitioner No.6 paid separate Court fee and the same is taken on file under USR No.163617/97.
2. The facts leading to the filing of this Wnt Petition are that the correspondent of the Respondent No.4 School which is functioning as Aided Elementary School was upgraded into Upper Primary School by the Respondent No.3 in his proceedings RC.No.3102/B2/91, dated 10-9-1991. Thereafter, keeping in view the work load due to opening of new classes up to VI Class the 4th respondent seemed to have sought for permission for creation of the following unaided posts:
1. One post of B.Ed. Assistant
2. TwopostsofSecondaryGradeTeachers
3. One post of Gr.HTelugu Pandit
4. One post of Gr.U Hindi Pandit
Simultaneously, he seemed to have sought permission to fill up two aided posts which have fallen vacant due to retirement of the incumbents, and unaided posts for whose creation permission was sought for.
Anticipating favourable orders from the third respondent, he seemed to have addressed a letter to the Employment Exchange to sponsor the candidates for filling up both aided and unaided vacancies.
3. On 31-07-1991, the District Employment Officer directed the 4th Respondent to send the particulars in the prescribed proforma and on the same day the 4th Respondent sent two proposals, one for the posts that were admitted to grant-in-aid, and the other for the posts to be created as unaided posts- Having received the said letter, the Employment Officer wrote a letter to the 4th respondent stating that in Column No. 9, he mentioned that one post is reserved for B.Cs. and he did not mention about reservations for the 2nd post. If he sends particulars for the 2nd post, his request will be considered. On the same day the 4th respondent sent another proforma stating that the two aided posts are reserved for B.C. ‘B’ group. The respondent No.4 seemed to have sent a reminder to sponsor the candidates on 07-09-1991 and as he did not hear anything from the District Employment Officer, he seemed to have issued paper notification on 18-09-1991 calling for applications from the eligible candidates. Simultaneously, he seemed to have sent another reminder to the Employment Exchange on 05-10-1991. In the meantime, the 3rd Respondent gave permission to the 4th respondent for creation of un-aided posts on 03-10-1991 and constituted the selection Committee as per the statutory rules issued in G.O.Ms.No.524, dated 20-12-1998 fixing the date of interview as 12-10-1991. But, the Employment Exchange did not send any reply to the 4th respondent. The interview Committee met on 12-10-1991 and selected 6 candidates 2 for aided and 4 for un-aided posts. Subsequently, the 3rd Respondent not only approved their appointments but also released grant-in-aid. Thereafter, in March, 1992, there is a change in the incumbent in the 3rd Respondent and the successor felt that theprevious incumbent committed a mistake in approving these appointments. On a clarification sought for by him, the 2nd Respondent in his proceedings
in L.Dis-No.9318/D1.2/92.1, dated 14-10-1992 directed the District Educational Officer to issue instructions to the Management of the school to remove the teachers concerned from service after issuing notices to them as their appointments were made in violation of the procedure laid down in G.O.Ms.No.524, dated 20-12-1988. ft seems that the 2nd Respondent directed the Management concerned to pay the salaries to the incumbents for the period they worked in their respective schools as they themselves were responsible for the irregular appointments. On the basis of the above instructions, the third respondent directed the management to terminate the services of these petitioners in his Proceedings No.3710/C2/92 dated21-10-1992. Questioningthe said orders, the petitioners filed W.P.No. 14393 of 1992 on the file of this court and the same was dismissed on 3-11-1992 at the admission stage on the ground of alternative remedy and directed the petitioners to approach the appellate authority. Thereafter, the petitioners seemed to have filed W.A.No.1330/92 and a Division Bench of this court while dismissing the appeal directed the petitioners to file an appeal before the Government and seek stay of termination of their services. This court directed maintenance of status quo till they obtain appropriate orders with regard to continuance of their services. Accordingly, the petitioners filed statutory appeal under Section 89 of the A.P. Education Act on 25-11-1992 before the first respondent and the first respondent by his orders dated 30-12-1992 directed maintenance of status quo. Though not necessary for adjudication of the dispute in this Writ Petition, to give a complete picture of the case, I would like to refer the events that have taken place thereafter also. After the order of the Government, dated 30-12-1992 maintaining status quo, the petitioners filed W.P.No.7401/96 seeking a direction to the respondents for release of grant-in-aid. This court was pleased to pass interim orders directing the payment of salary from April, 1996 onwards. When that order was not gjven effect, they filed Contempt Case No.834/96. The first respondent having received notice in the Contempt Case, passed
the impugned orders on 4-10-1996 dismissing the appeal filed by the petitioners. Subsequently, the Contempt Case came up for orders and this Court directed the Government to release the grant-in-aid from April, 1996. to 4-10-1996, the date on which the appeal preferred by the petitioners was dismissed.
4. Questioning the validity of the orders passed in G.O.Ms.No.1129 Education (PS) Department, dated 4-10-1996, the present Writ Petition was filed and this court initially passed orders for continuance of their services on 8-11-1996, and subsequently on 3-4-1997 the G.O. itself was suspended. The Secretary to Government, Education Department, passed the impugned order running into twenty one pages. The sum and substance of this order is that the appeal was dismissed for the following grounds :
(1) Under the AP. Education Act, the appeal lies to the Joint Director, but the petitioners filed the appeal before the Government. In other words, the first respondent found fault with the procedure adopted by the petitioners in filing the appeal.
(2) The second and third respondents are justified in directing the fourth respondent to terminate the services of the petitioners as they came to know of the irregularities committed by the then District Educational Officer in Office while approving their appointments.
(3)(a) Even before the third respondent gave permission for creation of unaided posts, the correspondent addressed a letter to the Employment Exchange Officer to sponsor the candidates for filling up the vacancies.
(3)(b) Even before the District Educational Officer gave permission for creation of unaided posts, the correspondent gave advertisement calling for applications from the eligible candidates to fill up these posts.
(4) Rule of Reservation was not followed.
(5) Even though-.the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 cannot be made applicable to the fourth respondent institution, the fourth respondent institution is governed by the statutory rules issued in G.O.Ms .No. 524 dated 20-12-1988 and Rule 15(2)(b) prescribed that only candidate sponsored by the Employment Exchange alone have to be entertained by the Selection Committee and that the fourth respondent’s action, in making the appointments by giving paper notification, is in clear violation of the said orders.
5. With regard to the first objection raised by the first respondent, i.e. with regard to maintainability, as the orders were passed by the District Educational Officer, at the instance of the Commissioner i.e. the second respondent, this court categoncally directed the petitioners to file an appeal before the State Government in W.a.nO. 1330/92. The relevant portion reads as under :
‘It is obvious that since the impugned orders, in substance, are that of the Director General, appeal would lie to the Government under Section 89. The learned Judge was, therefore, quite justified in taking a view that the appeals would lie to the State Government. The learned Counsel for the respondents also accepted that legal position. In that view of the matter, it is just and proper to direct the appellants to file the appeal before the State Government within three weeks from today.’
Hence, the first objection raised by the first respondent falls to ground.
6. With regard to the second objection, i.e. the second and third respondents are justified in stopping the grant-in-aid having noticed the irregularities at a subsequent point of time, a single judge of this Court in W.P.No. 14307/92 dated 29-3-1996 has taken the view that when once the appointments are approved under Rule 15(4) of the G.O., it is not open to the authorities concerned to take
the stand that the approval given by the officer concerned is not proper. The view taken by the learned Judge was confirmed in WANo.64^6 dated 2-2-1996 in the following terms :
“The learned Judge having given his full concern to all the aspects of the matter and also taken notice of the arguments which has been repelled by the learned Government Pleader that the District Educational Officer has approved the appointments made by the Management ofthe School contrary to the Rules, he has given sound reasons for not accepting the extreme contentions raised by Government that the mistake noticed in the conduct of the District Educational Officer shall affect the appointments given to the teachers by the management of the School.”
In the light of the above dicta, the second objection taken by the 6rst respondent also falls to ground.
7. With regard to the third objection, i.e. the correspondent has taken steps either by way of addressing a letter to the Employment Officer or by giving proper notification inviting applications, even before the permission is given by the District Employment Officer, I questioned the Government Pleader to show under what Rule, the Educational Agency has to obtain prior pennission for appointment to unaided posts. He lias no answer. The fact remains that as long as the post remains unaided it is for the management to run its own affairs in the best interests ofthe institution and as per the need. As such, prior permission of the District Educational Officer to create any number of unaided posts is not required under law. In this case, the correspondent, in fact, addressed a letter to the District Educational Officer, explaining the need for creation of these posts due to upgradation of the Elementary School to that ofthe Upper Primary School. If the District Educational Officer sits over the proposals, the correspondent cannot be found fault for the same. At any rate, in this case, before the fourth respondent filled up the
vacancies, the third respondent gave permission to create the new posts and in fact he went a step ahead and constituted a Selection Committee to conduct the interviews for the candidates who are likely to appear for the interviews pursuant to the notification.
8. With regard to the other objection (3b), i.e. the correspondent has given notification without approaching the Employment Exchange, the first respondent relied on the information furnished by the Distnct Employment Officer in his letter dated 9-2-1993, which reads as follows:
‘Notification for the post of 2 SGTS was actually received on 17-7-91. Since the notification was not in the prescribed form, the Correspondent was requested in this office Lr.No.Cl 3867/91 dated 31-7-91 to notify the vacancies in the prescribed form of Notification, In response to the above, the Correspondent notified the two vacancies in the prescribed form, which was actually received on 19-8-91, reserving for BC(B). Since the two posts could not be reserved for one category (BC.B), the correspondent was requested to reserve each post separately. (Fide this Office Letter No.CI/5518/91 dated 27-8-1991. Since no reply was received from the Correspondent, candidates were not sponsored.’
The contents of the Lr. dated 27-8-91 extracted supra are otherwise.
9. From this it is seen that the Employment Exchange has taken stand that it did not receive any reply to its letter dated 27-8-1991 for not sponsoring the candidates. From the material papers filed by the petitioners it is seen that the correspondent sent reminders on 7-9-1991 and 5-10-1991. But, this fact is disputed by the Government Pleader for School Education by saying that there is no evidence to show that these letters reached the District Educational Officer. The counsel for the petitioners submitted that these reminders were sent under certificate of posting. At any rate, in the light of the Judgment of the Supreme Court in Excise
Superintendent, Ma/kapatnam v. K.B.N. Vinveswara Rao, wherein the Supreme Court has taken the view that the appointing authority can make appointments by issuing a paper notification without approaching the Employment Exchange, I need not advert to this objection i.e., whether the Employment Exchange received the reminders or not, as the fourth respondent has given paper notification inviting applications from all eligible candidates which was not disputed by the Government Pleader. Hencethis objection (3b) has no legs to stand.
10. With regard to the fourth objection i.e. no Rule of Reservation was followed, the first respondent raised this aspect at the appellate stage, more so, in the impugned order without putting the same to the Management and without giving them any opportunity to state whether the Rule of Reservation has been followed or not. Hence, the objection raised by the fourth respondent cannot be sustained in law accordingly the same is set aside. At any rate, the candidates appointed belong to B.C.’B’. Hence, the first respondent is not justified in throwing out the petitioners out of employment on this ground also.
11. Coming to the fifth objection, i.e., the 4th respondent is bound by the statutory rules governing the appointment in G.O.Ms.No.524, dated 20-12-88, the first respondent failed to see that the appointing authority has to notify the vacancy to the Employment Exchange under the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, the respondents have also categorically admitted the fact that the private establishment, whose cadre strength is more than twenty five alone has to notify the vacancies under the Act. These rules were issued in exercise of its rule making power under A.P. Education Act, a legislation passed by the State Legislature under item No.25 of iist No.m in the VII schedule to the Constitution, while the Act governing the notification of the vacancies to the Employment Exchange was enacted by the Parliament
under Entry-23 in list-Ill of VII schedule and Rule 15(2Xb) of G.O.Ms.No.524 runs counter to the scheme of the Act.
12. In fact, having noticed the provisions of Section 2(g) and 4(2) of the Act, the Director of School Education in his proceedings Rc.No.9314/D-l/76, dated 15-06-1989, issued instructions to the effect that the sponsoring of candidates for appointment as teachers in the private aided institutions by the Employment Exchange cannot be insisted. The Secretary, simply brushed aside the Circular by saying that the Director cannot issue any direction in violation of the Rules. He also stated that the instructions given in the above proceedings were superseded by the instructions given in the proceedings of the Director of School Education dated 20-2-1992. At the same time, the 1st Respondent missed to see that on the day when the 4th Respondent initiated action to fill up the vacancies circular dated 15-06-1989 is very much in operation and the same was superseded after the selections were over for the 4th respondent school. Secondly, the statutory rule relied on by the 1st Respondent is repugnant to the provisions of the Employment Exchange Act. Hence, the said rule cannot be pressed into service in this case.
13. At any rate, I need not go into the aspect, as it is covered by the judgement of the Supreme Court as well as the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. On this ground also this objection has to fail.
14. In the result, none of the objections raised by the 1st respondent in dismissing the appeal cannot be sustained in law and the impugned order is quashed and the appointments made by the 4th Respondent are declared valid. A consequential direction is given to the respondents to release the grant-in-aid from March, 1992 to March, 1996 and continue to release the grant-in-aid from October, 1996 onwards. The arrears have to be paid within eight weeks from the date of receipt of a copy of this order, and the respondents shall continue to release the grant-in-aid thereafter.
15. With regard to the 6th Petitioner, the facts are also almost similar. The vacancy filled up by this petitioner is an aided vacancy that has arisen consequent on the retirement of the incumbent in the 5th Respondent school. It is the case of the Management that a letter was addressed to the Employment Exchange on 28-12-1991 and having waited for sufficient time issued paper notification on 06-02-1992 pursuant to which the selections were held and the petitioner was selected for appointment The reasons given for upholding the appointment of the Petitioners 1 to 5 are equally applicable to the 6th Petitioner also.
16. The writ petition is accordingly allowed. No costs.