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2019 Supreme(AP) 42
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. Praveen Kumar, M. Satyanarayana Murthy, JJ.
Ester Axene Res. High School and Ors. – Appellants
Versus
State of Andhra Pradesh and Ors. – Respondents
W.P. No. 28912 of 2018
Decided On : 16-04-2019
For the Appellant : Ch. Samson Babu, G. Rama Sarma, N. Subba Rao, N. Bharat Babu, N. Ashwani Kumar, Vijay Mathukumalli, K. Rammohan, P.V.S.S.S. Rama Rao, T.V.S. Kumar and M.R. Tagore
Headnote:
Constitution of India, 1950 – Article 14, 30(1) and 226 – Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Management) Rules, 1993 – Section 99(3) – Appointment of teaching and non-teaching staff – Challenging Government order – Rights of Management – Whether School Education amending Rule 12 and omitting Rule 13 – Whether School Education (PS) Department is in consonance of spirit of Article 30(1) of Constitution of India. If not, whether School Education (PS) Department is liable to be declared as unconstitutional – Whether petitioners are minority educational institutions established by linguistic or religious minorities and obtain Constitution of India – Held, Petitioners claiming to be minority educational institutions filed these petitions challenging Government order School Education (PS) Department Rule 12 is amended and Rule 13 is omitted from Rules – There is no dispute with regard to power of this State, but above provision cannot be applied to minority educational institutions, since such rule is violative of fundamental right guaranteed under Article 30(1) of Constitution of India, as establishment of minority institutions of religious or linguistic minorities and its administration and management is absolute, subject to reasonable restrictions – A.P. Education Act, Rights of minority educational institutions cannot be hijacked in name of guidelines or regulations issued by State – Court strikes down G.O., which is applicable only to minority educational institutions whether aided – However, only minority educational institutions who obtained certificate from competent authorities as defined under Section 2(1)(a) of National Commission for Minority Educational Institutions Act, 2004, which deal with establishment, recognition and administration of minority educational institutions providing an appeal against order passed by competent authority – These questions cannot be decided in present petitions and same is left open to State to take appropriate action in this regard –Writ petitions allowed declaring G.O as void and unconstitutional, as it is violative of fundamental right guaranteed under Article 30(1) of Constitution of India – Petition Allowed (Para 42, 87, 93 and 94)
Facts of the case:
Questions arises in this appeal is that Whether School Education amending Rule 12 and omitting Rule 13 – Whether School Education (PS) Department is in consonance of spirit of Article 30(1) of Constitution of India. If not, whether School Education (PS) Department is liable to be declared as unconstitutional – Whether petitioners are minority educational institutions established by linguistic or religious minorities and obtain Constitution of India
Findings of the Case:
Petitioners claiming to be minority educational institutions filed these petitions challenging Government order School Education (PS) Department Rule 12 is amended and Rule 13 is omitted from Rules – There is no dispute with regard to power of this State, but above provision cannot be applied to minority educational institutions, since such rule is violative of fundamental right guaranteed under Article 30(1) of Constitution of India, as establishment of minority institutions of religious or linguistic minorities and its administration and management is absolute, subject to reasonable restrictions – A.P. Education Act, Rights of minority educational institutions cannot be hijacked in name of guidelines or regulations issued by State – Court strikes down G.O., which is applicable only to minority educational institutions whether aided – However, only minority educational institutions who obtained certificate from competent authorities as defined under Section 2(1)(a) of National Commission for Minority Educational Institutions Act, 2004, which deal with establishment, recognition and administration of minority educational institutions providing an appeal against order passed by competent authority – These questions cannot be decided in present petitions and same is left open to State to take appropriate action in this regard –Writ petitions allowed declaring G.O as void and unconstitutional, as it is violative of fundamental right guaranteed under Article 30(1) of Constitution of India.
Result: Petition allowed
M. Satyanarayana Murthy, J.
1. All these writ petitions are filed under Article 226 of the Constitution of India, by various minority educational institutions, challenging G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 issued by the first respondent, bringing amendment to Rule 12 of G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994 in the matter of making appointments to the staff in private aided and unaided educational institutions as illegal, arbitrary, unconstitutional and violative of Article 14 and 30(1) of the Constitution of India, as it takes away the rights of managements in making appointments to teaching and non-teaching staff in the institutions and confers the same on authorities, and consequently set-aside the same conferring the right to administer the institutions by the managements and in the appointments of the institutions.
2. Since, the question involved in all these writ petitions is identical, except in W.P. Nos. 45521, 43104 & 30456 of 2018 filed by Sri N. Subba Rao, counsel for the petitioners, where the petitioners raised an additional ground that, amendment to G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 issued by the first respondent amending Rule 12 of G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994 is not in accordance with the procedure prescribed under Section 99(3) of A.P. Education Act, since the amendment was not placed before both the houses and thereby, it is contrary to the provisions and rules under the A.P. Education Act. Therefore, the allegations made in W.P. No. 28952 of 2018 are taken into consideration, which are more comprehensive as leading petition, besides the allegation with regard to violation of procedure in bringing the amendment raised in W.P. Nos. 45521, 43104 & 30456 of 2018 filed by Sri N. Subba Rao, counsel for the petitioners.
3. In all these writ petitions, the petitioners are educational institutions are recognized by the Government of Andhra Pradesh and partly aided and has been catering to the educational needs of State for the last many decades, working specially among the minorities and downtrodden communities of the society, maintaining high standards of education and achieving 100% results in public examinations. These institutions are governed by the provisions of A.P. Education Act and the rules framed thereunder from time to time. All the petitioners/educational institutions are recognized as minority institutions. It is stated that, A.P. Education Act came into force in the year 1982 as per the provision of Section 99 of the A.P. Education Act; Government reserved the powers to make rules for carrying out the purpose of the Act and sub-section (xi); the Rules were to be made for establishment, maintenance and administration of the educational institutions. However, the rules so framed invoking the powers under Section 99 cannot be inconsistent with the provisions of the Education Act and Article 30(1) of the Constitution of India. It is submitted that, in the year 1993, the Government issued comprehensive rules for the administration of private educational institutions vide G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994 known as Andhra Pradesh Educational Institutions (Establishment Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short 'Rules').
4. Rule 12 of the above mentioned Rules deals with appointment of staff, while Rule 13 deals with constitution of Staff Selection Committee. Through the impugned G.O. the first respondent has omitted Section 13 while drastically amending the provisions of Rule 12 in relation to the appointment of staff in private minority educational institutions.
5. The petitioners being minority educational institutions, are managing the institutions, including recruitment of teaching and non-teaching staff fo
