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1999 Supreme(AP) 624
Andhra Pradesh High Court
Judges : V.BHASKARA RAO
Tabita Ideal High School - Appellant
Versus
Government Of A.P., Education Department - Respondent
Decided On : 08-10-99
Prior approval of prescribed authority under proviso to Section 79(1) of the Andhra Pradesh Education Act, 1982 is not required in the absence of Rules prescribing such authority.
Headnote:
EDUCATION - ANDHRA PRADESH EDUCATION ACT, 1982 - SECTION 79(1) PROVISO - SECTION 80(2) PROVISO - SECTION 80(3) - ANDHRA PRADESH EDUCATION RULES, 1983 - RULE 3 - MINORITY INSTITUTION - DISCIPLINARY ACTION - REVERSION - APPEAL - PRIOR APPROVAL - OPPORTUNITY OF HEARING - SUSPENSION OF MANAGEMENT - TRANSFER OF TEACHER - LEGALITY - HELD, (1) PRIOR APPROVAL OF PRESCRIBED AUTHORITY UNDER PROVISO TO SECTION 79(1) OF THE ACT IS NOT REQUIRED IN THE ABSENCE OF RULES PRESCRIBING SUCH AUTHORITY; (2) FAILURE TO GIVE AN OPPORTUNITY TO THE MANAGEMENT BEFORE PASSING AN ORDER OF REVERSION IS A VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND THE PROVISIONS OF THE ACT; (3) SUSPENSION OF THE MANAGEMENT AND APPOINTMENT OF A SPECIAL OFFICER IS NOT JUSTIFIED IN THE ABSENCE OF ANY OTHER GROUND EXCEPT THE DISPUTE RELATING TO DISCIPLINARY ACTION AGAINST A TEACHER; (4) TRANSFER OF A TEACHER ALONG WITH THE POST FROM ONE INSTITUTION TO ANOTHER IS NOT PERMITTED UNDER THE RULES.
Fact of the Case:
The petitioner, a minority educational institution, challenged the orders of the respondents, including the order of reversion of a teacher, the order allowing the teacher's appeal against the reversion, the order directing the petitioner to admit the teacher as B.Ed. Assistant, the order suspending the management and appointing a Special Officer, and the order transferring the teacher along with the post to another school. The teacher had been reverted from B.Ed. Assistant to S.G.B.T. Assistant on disciplinary grounds. She filed an appeal to the appellate authority, who allowed the appeal without issuing any notice to the petitioner. The petitioner contended that the order of reversion was not sustainable as prior approval of the prescribed authority under the proviso to Section 79(1) of the Act had not been obtained, and that the impugned order was not sustainable for non-compliance with sub-section (3) (sic. (2)) of Section 80 of the Act. The respondents contended that prior permission of the competent authority was essential for passing the order of reduction in rank of the teacher under the proviso to Section 79(1) of the Act.
Finding of the Court:
The court held that the order of reversion of the teacher was not sustainable as prior approval of the prescribed authority under the proviso to Section 79(1) of the Act had not been obtained, and that the impugned order was not sustainable for non-compliance with sub-section (3) (sic. (2)) of Section 80 of the Act. The court also held that the suspension of the management and appointment of a Special Officer was not justified in the absence of any other ground except the dispute relating to disciplinary action against a teacher, and that the transfer of a teacher along with the post from one institution to another was not permitted under the Rules.
Issues: 1. Whether the order of reversion of the teacher is bad in law for want of prior approval of the prescribed authority? 2. Whether the impugned order is not sustainable for non-compliance of sub-section (3) (sic. (2)) of Section 80 of the Act? 3. Whether the suspension of Management and appointment of Special officer is justified? 4. Whether the order dt. 17-8-1998 transferring Smt. Satyavathi along with the post to R.R.B.H.R. Government High School, Pithapuram is sustainable?
Ratio Decidendi: 1. The court held that the order of reversion of the teacher was not sustainable as prior approval of the prescribed authority under the proviso to Section 79(1) of the Act had not been obtained. The court relied on the judgment in Rev. Joseph Thumma vs. Dist. Educational Officer and V. Ramakanta Sarma vs. Adarsha Vidya Samithi, wherein it was held that the proviso to Section 79(1) casting an obligation to obtain prior approval does not have any effect and is not capable of being enforced in the absence of prescription of an officer for the purpose of that proviso. The court also held that the competent authority specified in Rule 3 of the A.P. Private Institutions Employees (Disciplinary Control) Rules is not the same as the prescribed authority under the proviso to Section 79(1). 2. The court held that the impugned order was not sustainable for non-compliance with sub-section (3) (sic. (2)) of Section 80 of the Act. The court relied on the judgment in P. Atchamma vs. T. Bayanna, wherein it was held that even an erroneous decision by a Court of competent jurisdiction cannot be treated as a nullity unless and until it is avoided by due process of law. The court held that the appellate authority had failed to give an opportunity to the petitioner before passing the order allowing the teacher's appeal, which was a violation of the principles of natural justice and the provisions of the Act. 3. The court held that the suspension of the management and appointment of a Special Officer was not justified in the absence of any other ground except the dispute relating to disciplinary action against a teacher. The court held that the order of suspension was based on the failure of the petitioner to comply with the order of the appellate authority, which was itself illegal. 4. The court held that the transfer of a teacher along with the post from one institution to another was not permitted under the Rules. The court relied on the judgment in K. Nirmala vs. Government of Andhra Pradesh and others, wherein it was held that there are no statutory provisions for the said transfer.
Final Decision: The court allowed the writ petitions filed by the petitioner and set aside the orders impugned in all the writ petitions. However, the appeal of the teacher was remitted to the appellate authority for fresh disposal according to law after giving opportunity to the petitioner-Management and Syam Johnson. The court also disposed of the writ petition filed by Syam Johnson with the directions indicated above.
( 1 ) THESE four Writ Petitions are interconnected so much so that the earlier writ Petition in point of time is Writ Petition No. 19741 of 1988 and subsequent writ Petitions can be said to be offshoots thereof. As the subject matter is more or less same, they are being disposed of by a common order. W. P. No. 19741 of 1998:
( 2 ) THE Management of the petitioner-school represented by its headmistress and Correspondent filed this Writ Petition seeking a Writ of certiorari to call for records in proceedings RC. No. 488/a2/97, dt. 22-11-1998 and consequential proceedings dt. 18-11-1997 of respondent No. 2 and to declare the same as illegal and ultra vires of A. P. Education Act and Rules framed therein.
( 3 ) THE facts and circumstances giving rise to this Writ Petition are that respondent No. 4 has been working as B. Ed. Assistant in the petitioner-school. The Management framed certain charges against her alleging that she was negligentin her duties and committedacts of misconduct by disobeying certain orders through proceedings bearing RC. No. E. 19/96-97, dt. 12-6-1997 and she was directed to submit an explanation within ten days from the date rf receipt of the same. Accordingly she submitted an explanation on 26-6-1997 (sic. ). On a consideration of her explanation and other material, the Management issued proceedings dt. 23-6-1997 directing her to show-cause within 15 days why punishment should not be imposed against her. Respondent No. 4 received the show-cause notice on 23-6-1997 and submitted her explanation on 14-7-1997. Thereupon the Management issued proceedings dt. 28-7-1997, after considering the explanation dt. 14-7-1997 directing her to appear before the Committee constituted to conduct disciplinary proceedings on 31-7-1997 at 4 p. m. According to the Management, she appeared before the said committee and gave a statement, but refused to sign the same. However, the management considered the available material and held that the charges framed against respondent No. 4 have been proved and ordered her reversion as S. G. B. T. Assistant with immediate effect viz. , 19-9-1997 Forenoon, by serving a copy of the order on the same date. According to the Management the above vacancy was filled up by promoting one V. Syam Johnson, S. G. B. T. Assistant as B. Ed. Assistant through proceedings dt. 19-9-1995 (sic. 1997) and respondent no. 4 was relieved on the same day and in her place V. Syam Johnson has been working.
( 4 ) WHILE so, respondent No. 4 preferred an appeal to respondent No. 2 againstthe order of reversion dt. 19-9-1997 and the same was allowed by order dt. 22-9-1997 which was communicated to the petitioner-Management on 26-9-1997. It is asserted by the petitioner that no opportunity was given to contest the appeal filed by respondent No. 4. Hence the petitioner requested respondent No. 2 through proceedings bearing RC. No. Even/97-98, dt. 29-9-1997 requesting to revoke the orders dt. 22-9-1997. It was followed up by another proceedings dt. 14-10-1997 as no orders were passed by respondent No. 2.
( 5 ) WHILE so, respondent No. 2 issued proceedings bearing RC. No. 483/ a2/97; dt. 18-11-1997 directing the petitioner-Management to admit respondent No. 4 as B. Ed. Assistant and on failure to do the matter, the same will be reported to the Director for School Education to initiate action under section 24 of A. P. Education Act, for short the act . Thereupon the management approached respondent No. 2 with a letter dt. 12-12-1997 seeking reconsideration of his decision while indicating that no permission is required for claiming minority status by the petitioner. As there was no response, another letter dated 22-12-1997 was sent. Order dated 22-9-997 as well as consequential order dated 18-11-1997 are, therefore, liable to be quashed on various grounds including the violation-of principles of natural justice and contravention of the provisions of the Act and Rules framed thereunder.
( 6 ) ADVERTING to
