JUDGMENT
P. Ramakrishnam Raju, J.
1. The petitioners were appointed as Lecturers/ Asst. Lecturers/ Associate Lecturers in the third respondent Polytechnic after calling for applications through advertisement in the newspapers and after proper selection observing rule of reservation. Since all of them are fully qualified, they are entitled to be regularized and they should be deemed to have been regularly appointed. They have been making representations to the respondents for implementation of Revised Fay Scales of 1986 and 1993 as fixed by the Government. While so, the third respondent issued a notification on 4-3-1995 calling for applications for the posts held by the petitioners. The petitioners thereafter made a representation to the Commissioner and Director of Technical Education pointing out to the said advertisement. However, the third respondent issued another notification dated 9-3-1995 for the same purpose and published the same on 14-3-1995. The third respondent management had certified that all the petitioners were recruited as per qualification, and experience laid down by the AICTE. When the petitioners threatened to go on strike, the management has agreed to withdraw the proposed action. But later it again issued a circular memo No. CRP/CPT/ SSC/95 dated 18-5-1995 treating the petitioners as if they were working on Ad hoc basis and they should make applications for regular appointment before 29-5-1995. The petitioners who have been working for several years cannot be thrown out and in fact there is an embargo on the retrenchment and termination under Section 80 of A.P. Education Act- hereinafter called ‘the Act’. Hence they filed this writ petition.
2. Later by WP MP No. 10779 of 1996 fresh grounds are taken. The third respondent is relying on G.O.Ms.No. 100, Labour, Employment, Nutrition and Technical Education(TE.1) Department, dated 25-5-1984, but it is only an administrative instruction. As the third respondent-Polytechnic is not a Grant- in-Aid institution, this G.O. has no application. The A.P. Unaided Private Polytechnics (Establishment Management an Admission) Rules, 1992 issued under G.O.Ms.No. 247 Education (TC) Department dated 2-7-1992 is ultra vires of the Act in so far as selection of staff is concerned. Sections 20, 21 or 99 of the Act under which the Rules are purported to have been issued do not invest the Government with the power to issue those Rules for constituting the Selection Committee. In any event, the said rules cannot have retrospective effect and they cannot apply to the petitioners who were selected and appointed long before coming into force of these Rules. The third respondent by exerting threat and coercion obtained the signatures from the petitioners on the agreement dated 9-5-1995. Therefore, by way of amendment the petitioners are questioning G.O.Ms. No. 100 dated 25-5-1984 and the Rules made in G.O.Ms.No. 247, dated 2-7-1992 as ultra vires of the A.P. Education Act, and consequently to declare the purported agreement as illegal and void as it is contrary to the Statute.
3. The respondent Nos. 1 and 2 have not filed any counter-affidavit.
4. The third respondent in its counter-affidavit stated that the writ petition is not maintainable against a private institution. Under G.O.Ms.No. 767, Labour, Employment, Nutrition and Technical Education Department, dated 28-10-1982 permission was accorded for establishment of the third respondent- Polytechnic. According to the terms of the said G.O., regular appointment of staff shall be made only through Staff Selection Committee. Composition of Staff Selection Committee is indicated in para 9 of G.O.Ms. No. 100, Labour, Employment, Nutrition and Technical Education Department, dated 26-3-1984 separately for teaching and non-teaching staff. The petitioners were taken only on Ad hoc/temporary basis, pending regular recruitment through a duly constituted Staff Selection Committee. Regarding implementation of 1986 Pay Scales, the Staff and the Management reached an agreement on 9-5-1995 and it was agreed to implement the Pay Scales with effect from 3-10-1.990. As per Clause (2) of the agreement, all the temporary staff have to face the Staff Selection Committee, and further the existing temporary staff will be considered for absorption to the extent possible. Besides the office bearers, the petitioner Nos. 4, 9, 15 and 18 have also signed the agreement on behalf of staff. The fifth petitioner was temporarily appointed on 17-1-1994 up to31-5-1994. He was again appointed on 30-5-1994 purely on temporary basis for a period of eleven months i.e., from 1-6-1994 to 30-4-1995. He was not working on the day on which the writ petition is filed. The 17th petitioner joined the third respondent-Polytechnic in the year 1993 having agreed to undertake the selection process by the Staff Selection Committee under the agreement dated 9-5-1995 in the presence of the Commissioner, Technical Education. The Petitioners cannot seek any relief in this writ petition.
5. Sri M. Pandurangarao, the learned counsel appearing for the petitioners submits that G.O.Ms.No.247 Education (TC) Department, dated 2-7-1992 is beyond the power of the Government. The Rules are purported to have been issued by the Government in exercise of the powers conferred by Sections 20, 21 and 99 of the Act. According to the learned counsel, as per Section 20 (3) (c) (i) any Educational Agency applying for permission under sub-section (2) shall appoint teaching staff qualified according to the Rules made by the Government in this behalf. According to the learned counsel inasmuch as the petitioners are fully qualified and appointed and in the absence of any guidelines prescribed the Government, the Rules made under G.O.Ms.No.247 dated2-7-1992 are beyond the Rule making power of the Government. He relies on Lohia Machines Ltd. v. Union of India, wherein the phrase (in the prescribed manner) has been interpreted. Clause(d) of Section 21(1) provides for situations where the Manager of a private educational institution employs or continues to employ any teacher whose certificate has been cancelled or suspended by the competent authority or arbitrarily removes a teacher or fails to comply with the orders of the competent authority. Section 99 enables the Government to make Rules. But here either Section 21 or 99 does not deal with the selection of the teaching staff. Therefore, Sub-Clause (i) of Clause (c) of sub-section(3) of Section 20 is the only provision which enables the Government to make Rules regarding the appointment of teaching staff. Having regard to the power available to the Government under this provision, I am of the view that the contention of the learned counsel for the petitioners that constitution of Selection Committee is beyond the Rule making power of the Government cannot be accepted.
6. Rule 9 of the Rules framed under G.O.Ms. No. 247 dated 2-7-1992 prescribes selection of staff for appointment in the Polytechnics which shall be a committee constituted by the Managing Committee for the purpose subject to such other conditions as may be prescribed by the Government from time to time and the appointment of persons so selected shall be by the Secretary and Correspondent of the Polytechnics after the approval of the Managing Committee. Therefore, I am of the view that this Rule cannot be held to be beyond the competency of the Rule making power of the Government, nor is it ultra vires to the power conferred under Section 20 of the Act.
7. The learned counsel for the petitioners next submitted that in any event this G.O. cannot have retrospective effect. These Rules apply to only Educational Institutions that may be established after the coming into force of these Rules. These Rules are published on 4-7-1992. The contention of the petitioners is that the third respondent Polytechnic College was established under G.O.767 dated 28-10-1982. The A.P. Education Act,1982 came into force on 13-7-1982. Under Clause (17) of Section 2, Educational Agency means any Private Educational Institution (any body of persons) entrusted with the establishment, management and maintenance of such private educational institution. Private Institution is defined under Clause (35) of Section 2 as an Institution imparting education or training established and administered or maintained by any body of persons and recognized as Educational Institution by the Government and includes a college, a special Institution and a minority Educational Institution. Under G.O.Ms.No. 767 the Government accorded permission to the third respondent-Polytechnic to take up certain Diploma courses from the Academic year 1982-83, subject to certain conditions. Under condition No. 4 of Annexure-I, it is mentioned that there shall be a Staff Selection Committee for each private Polytechnic for recruitment of staff to various categories of posts with the Director of Technical Education, Andhra Pradesh or his nominee as a member thereof. In Clause (5) it is stated that the Staff Selection Committee shall also include a member representing A.P. State Board of Technical Education. However, it is contended by the petitioners that they have been regularly selected by the duly constituted Selection committee which is denied by the third respondent. Therefore, the fact remains that there is no Staff Selection Committee constituted for more than 13 years. Under these circumstances, the petitioners contend that since they were already appointed having been fully qualified cannot be made to appear before the Selection Committee at this length of time. Even the Rules made under G.O.Ms.No.247 can only apply prospectively and they cannot be applied retrospectively to Institutions which were already established and working. It is their case that the petitioners ought to have been regularized long back since they are fully qualified and after more than a decade the petitioners cannot be directed to appear before the Selection Committee and they cannot be replaced by fresh candidates. The G.O. if at all valid can only be made applicable to the vacancies that arise in future and not to the posts which are held by the petitioners since a long time. I see force in this contention. Even G.O.Ms.No.100 cannot be made applicable since it applies only to aided Institutions.
8. However, Sri M. Ramaiah, the learned counsel for the third respondent submits that the third respondent is an unaided private Polytechnic and as such, no writ lies against the said Institution. Sri Panduranga Rao, the learned counsel for the petitioners relied on T. Gattaiah v. Commissioner of Labour, 1981(2) LLJ 54 (A.P.). In the said case Justice P.A. Chowdhary while considering the scope of Article 226 of the Constitution with reference to the word ‘person’ employed there, observed:
“But it is suggested that the word person here should be understood as meaning a person exercising Governmental authority as that word must take its colour from the associated words (authority and Government) if that were to be its meaning, then the word person occurring in Article 226 of the Constitution would be a mere surplusage, because it adds nothing more to authority. Such an interpretation would be contrary to the well- settled principles of interpretation of a Statute particularly of a Constitution which forbids reading of any parts as useless.”
The said decision has been affirmed in W.A.No.16 of 1981 dt. 4-12-1981 and eventually in Workmen, Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., A Division Bench of this Court in a recent Judgment in Rakesh Gupta v. Hyderabad Stock Exchange Ltd., observed as follows:
“The High Court’s power under Article 226 of the Constitution, however, unlike the power of the Supreme Court under Article 32 of the Constitution is more pervasive in the sense that it can issue writs for enforcement of fundamental rights as well as non-fundamental rights. The words ‘any person or authority’ used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party, no matter by what means the duty is imposed.”
Therefore, it is clear that even as against private persons or bodies, writ or direction can be issued under Article 226 of the Constitution of India, if they are performing public functions.
9. Sri M. Ramaiah, the learned counsel for the third respondent relying on Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888 submits that the college is registered under the Societies Registration Act and as such it is not an Institution which is created by or under the Statute, but it merely governed by certain Statutory provisions for the proper maintenance and administration of the Institution and as such no writ lies against the said Institution. However, a Division Bench of this Court in Dr. S.Y. Philomina v. Prl. Secretary to Govt., relying on Supreme Court decisions held that relief can be given under Article 226 of the Constitution even against the Managements of Private Educational Institutions which are recognized and governed by the A.P. Education Act. Following the said decision I am of the view that a writ is maintainable.
10. Sri M. Panduranga Rao, the learned counsel for the petitioners next submits that the third respondent is entrusted with a public duty, and therefore, this Court should exercise its jurisdiction under Article 226 of the Constitution and extend relief. According to the learned counsel. Statute creates an Agency to discharge its obligation of imparting education. Article 41 guarantees fundamental right to education and for securing right to work. He relies on Mohini v. State of Karnataka, , wherein, it is observed as follows:-
“We hold that every citizen has a ‘right to education’ under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through State-owned or State-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions- whether State-owned or State-recognised – in recognition of their ‘right to education’ under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen’s right to education under the Constitution.”
Therefore, the learned counsel contends that the third respondent is an Agency created by the State to fulfil its obligation under the Constitution and therefore its duties are public duties. In Sukhdev Singh v. Bhagatram, it is observed that where a corporation is privately performing a ‘public function’ it is held to the constitutional standards regarding civil rights and equal protection of the laws that apply to the State itself, and Corporation or association though private in character who deals with public rights should be made subject to Constitutional standards. In this view, I agree the third respondent is amenable to writ jurisdiction of this Court.
11. It is next contended by Sri M. Ramaiah, the learned counsel for the third respondent that since the petitioners have already entered into an agreement dated 9-5-1995 they cannot ignore the said agreement and seek any relief. It is needless to observe that there cannot be any agreement contrary to the provisions of the Act. Therefore, there cannot be any estoppel against the Statute. As such, the petitioners’ rights cannot be affected by virtue of the said agreement. This view of mine gets support from the judgment of the learned single Judge in W.P.No. 6557 of 1992 dated 10-8-1995.
12. It is contended by Sri M. Panduranga Rao, the learned counsel for the petitioners that the petitioners have been working since a long time, and therefore, their services must be regularised without subjecting them for fresh selection. The petitioners have filed a statement showing the names of the petitioners, their date of appointment, experience in years etc. Of course the said facts are not admitted by the third respondent. The petitioners also submit mat the third respondent has intimated the authorities that teaching faculty and staff have been recruited as per the qualification, experience laid down by AICTE and asked for enhancement of Tuition fee as prescribed by AICTE. There is also dispute with regard to these letters. However, the learned counsel for the petitioners submits relying Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka, 1922 (2) SCC 29 that those teachers who have completed three years and above should not be subjected to the fresh selection. In fact the said decision was also reaffirmed in Baseruddin M. Madari v. State of Karnataka, 1995 (4) SCC 111. Following these decisions, I am of the view that a similar directions should ensure in this case also. Accordingly (1) the services of the petitioners who have worked for three years including the break till the date of filing of the writ petition shall not be terminated and they shall be absorbed in regular vacancies without subjecting them to appear before the Staff Selection Committee. Regarding others who have not even completed three years by the date of filing of the writ petition, they should appear before the Selection Committee. It is stated by Sri M. Ramaiah, the learned counsel for the third respondent that all the petitioners have appeared before the Selection Committee, but in view of the interim directions of this Court, the results were not announced. Therefore I direct the result of the selection in respect of those petitioners who have not completed three years as indicated above can be published.
13. Sri M. Ramaiah, the learned counsel for the third respondent finally contends that there is no order terminating the services of the petitioners, and as such, the writ is premature. The petitioners who have completed more than 3 years of service have a right to be regularised and as such, I am of the view that they are entitled to challenge the notification calling for applications to fill up the posts which are held by them, and hence, the writ petition is not pre-mature.
14. Regarding implementation of Pay Scales of 1986 and 1993 it is brought to my notice that in pursuance of the directions in Writ Appeal, the petitioners are being paid as per the Revised Pay Scales of 1993.
15. The writ petition is accordingly allowed to the extent indicated above. No costs.