REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.9541 of 2007

GOVT. OF A.P. & ORS. … PETITIONERS  Vs.

SRI SEVADAS VIDYAMANDIR HIGH  SCHOOL & ORS.  … RESPONDENTS

WITH S.L.P.(C) No.10945 of 2007

AND S.L.P.(C) No.469 of 2011

AND S.L.P.(C) No.15231-32 of  2011

J U D G M E N T

ALTAMAS KABIR, J.

1. Two  Special  Leave  Petitions,  being  SLP  (C)  

Nos.9541 of 2007 and 10945 of 2007, arising out of  

the judgment and final order dated 29th December,  

2006, passed by the Andhra Pradesh High Court have

been  taken  up  for  consideration  together,  along  

with  SLP(C)No.469  of  2011,  which  is  directed  

against the judgment and order dated 9th July, 2009,  

passed by the said High Court in W.A.M.P.No.661 of  

2008 in W.A.No.954 of 2009 and SLP(C)Nos.15231-32  

of 2011, which are directed against the judgment  

and order 17th August, 2010, passed by the said High  

Court in W.A.No.1868 of 2003 and W.P.No.24066 of  

2004.   Inasmuch  as,  SLP(C)Nos.469  of  2011  and  

15231-32 of 2011 arise out of different orders of  

the Andhra Pradesh High Court, the same will be  

dealt  with  separately,  although,  they  have  been  

taken up for hearing along with the other Special  

Leave Petitions.

2. For the sake of convenience, we shall refer to  

the facts in SLP(C)No.9541 of 2007 (Government of  

Andhra Pradesh & Ors. Vs. Sri Sevadas Vidyamandir  

High School & Ors.) in deciding the matters.

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3. The  subject  matter  of  the  various  writ  

petitions, which were disposed of by the learned  

Single  Judge  of  the  Andhra  Pradesh  High  Court,  

culminating  in  the  various  appeals,  which  were  

disposed  of  by  the  common  judgment  dated  29th  

December,  2006,  is  the  effect  of  the  ban  order  

imposed  by  the  State  Government  vide  Memo  

No.1280/COSE/A2/2004-4 dated 20th October, 2004, on  

the filling up of existing vacancies in the aided  

posts  of  teachers  where  the  recruitment  process  

had already been initiated by the management of the  

private schools.  The learned Single Judge, who had  

heard  the  writ  petitions,  had  declared  that  the  

said ban would not be applicable to the recruitment  

process already initiated by the management of the  

private  schools  for  filling  up  the  vacant  aided  

posts of teachers prior to the coming into effect  

of the aforesaid memo. The learned Judge had given  

a  further  direction  to  the  said  authorities  to  

allow the writ petitioners to complete the process  

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of selection.  In some cases, a further prayer was  

made  that  the  concerned  authorities  be  also  

restrained  from  transferring  teachers  from  one  

school to another by declaring them surplus and to  

release  the  amount  of  salaries  payable  to  the  

teachers appointed against the aided posts.   

4. For the sake of convenience, the Division Bench  

of  the  Andhra  Pradesh  noted  the  facts  from  the  

paper book of W.A.(S.R.)No.121938 of 2005, filed by  

the Government of Andhra Pradesh and Others against  

an  order  dated  9th March,  2005,  passed  by  the  

learned Single Judge in Writ petition No.22804 of  

2004,  i.e.,  C.A.M.  High  School,  Nellore  Vs.  

Government of Andhra Pradesh and others, wherein,  

pursuant to leave granted, a prayer had been made  

for quashing the impugned Memo dated 20th October,  

2004,  along  with  Rc.No.140/B2-1/2005  dated  3rd  

November, 2005, issued by the Director of School  

Education, Andhra Pradesh, Hyderabad.   

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5. C.A.M. High School, Nellore, is a private aided  

school established by Samavesam of Telugu Baptist  

Churches,  wherein  all  the  posts  of  teachers  

sanctioned  for  the  school  are  aided  posts.   In  

2004, the management of the school approached the  

District Education Officer, Nellore, for grant of  

permission to fill up the existing vacant posts.  

The  said  officer,  by  his  letter  dated  17th  

September, 2004, to the Regional Joint Director,  

School  Education,  Guntur,  recommended  grant  of  

sanction to the management of the school to fill up  

the vacant aided posts. Such permission was duly  

granted by letter dated 22nd September, 2004, which  

has been reproduced in full in the judgment of the  

Division Bench of the Andhra Pradesh High Court.  

Pursuant to such permission being granted by the  

Regional Director of School Education, Guntur, the  

management of the school initiated the recruitment  

process  by  requesting  the  District  Employment  

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Officer, Nellore, to forward the names of eligible  

candidates and also by publishing advertisements in  

two  daily  newspapers  inviting  applications  for  

filling up the vacant posts.

6.  While the recruitment process was underway, the  

school was informed that the Government had issued  

the above-mentioned Memo dated 20th October, 2004,  

imposing a ban on the filling up of the vacant  

posts and, therefore, the selection process could  

not be completed.  The management thereupon filed  

Writ Petition No.22804 of 2004 for a declaration  

that the decision contained in the said Memo dated  

20th October, 2004, was not retrospective and the  

same  could  not,  therefore,  be  applied  to  the  

ongoing process of recruitment initiated for the  

purpose of filling up the vacant aided posts for  

which permission had already been granted by the  

competent authority.  As was noted by the Division  

Bench,  in  the  counter  filed  by  the  District  

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Education  Officer,  Nellore,  it  was  not  disputed  

that in furtherance of the sanction granted by the  

Regional  Joint  Director,  Guntur,  the  process  of  

recruitment of 8 teachers had been initiated by the  

management  of  the  school  and  that  Shri  M.  

Ramalingam,  Deputy  Educational  Officer,  had  been  

nominated as the departmental representative on the  

Staff Selection Committee.  In fact, the date of  

interview had been fixed in consultation with Shri  

Ramalingam, but the same could not be completed on  

account of the promotion of Shri Ramalingam as the  

District Education Officer.

7.  Thereafter, the management of the school  suo  

motu fixed 14th December, 2004, as the date of the  

interview, but, although, the interviews were held,  

no further steps could be taken up on account of  

the ban order imposed by the State Government vide  

Memo dated 20th October, 2004.  The Division Bench  

observed that the learned Single Judge had taken  

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note of the fact that while permission had been  

given to fill up the vacant posts on 22nd September,  

2004, the Memo in question was issued subsequently  

on 20th October, 2004.

8. Various appeals had been filed by the State of  

Andhra  Pradesh  against  the  said  decision  of  the  

learned  Single  Judge  before  the  Division  Bench.  

While  the  appeals  were  pending,  the  Government  

began a process of rationalization for filling up  

all the vacant posts.  Taking note of the same, the  

Division Bench adjourned the hearing of the appeals  

with  liberty  to  the  counsel  for  the  writ  

petitioners in one of the cases to comprehensively  

amend  the  pleadings  and  also  to  challenge  the  

legality of the Memo dated 20th October, 2004, if so  

advised.  In furtherance of such leave, the writ  

petition filed by the C.A.M. High School, Nellore,  

was amended to challenge the legality of the said  

Memo  dated  20th October,  2004.   Ultimately,  the  

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Division Bench dismissed the appeals filed by the  

Government of Andhra Pradesh and allowed the writ  

petitions filed by the management of the private  

schools and directed that they would be free to  

appoint selected candidates and seek approval of  

such  appointments  from  the  Competent  Authority.  

The  Division  Bench  also  quashed  the  exercise  of  

rationalization  undertaken  in  furtherance  of  the  

interim  order  dated  31st October,  2005,  together  

with the directions contained in the letter dated  

3rd November, 2005, issued by the Director of School  

Education,  with  liberty  to  the  Competent  

Authorities  to  undertake  a  fresh  exercise  of  

rationalization,  which  might  lead  to  certain  

teachers  being  declared  surplus  and  for  their  

absorption.   

9. Appearing for the Government of Andhra Pradesh,  

Mr. P. Vishwanatha Shetty, learned Senior Advocate,  

submitted that the ban order imposed by the State  

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Government, vide Memo dated 20th October, 2004, came  

into  operation  in  respect  of  appointments  of  

teachers  in  private  aided  institutions  in  the  

State.  Mr. Shetty submitted that the Government of  

Andhra  Pradesh,  which  had  the  full  authority  to  

extend  grant-in-aid  to  educational  institutions,  

also  possessed  the  consequential  and  incidental  

power to adjust the posts covered under the grant-

in-aid scheme and to transfer personnel from one  

institution to another.  Since a decision had been  

taken up by a High Power Committee presided over by  

the  Chief  Minister,  its  decision  was  final  and  

conclusive and it was not open to the High Court to  

scrutinize  the  same.   It  was  submitted  that  in  

certain eventualities it could become necessary to  

declare staff of a school to be surplus and to  

transfer them to other schools and the power of the  

Government in such cases could not be curtailed.  

Mr.  Shetty  submitted  that  it  is  to  meet  such  

eventualities that a decision had been taken by the  

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State Government to rationalize the staff pattern  

of  the  different  institutions  on  a  need-based  

basis.

10. On the other hand, it was emphatically argued  

on behalf of the respondent School that the Memo  

dated 20th October, 2004, did not have retrospective  

effect  and  could  not,  therefore,  stultify  the  

recruitment process initiated by the management of  

private  aided  schools  where  permission  of  the  

Competent  Authority  had  been  given  prior  to  20th  

October, 2004.  Accordingly, it was incumbent on  

the  part  of  the  Competent  Authority  to  grant  

approval for the appointments made pursuant to the  

permission granted prior to 20th October, 2004, to  

the private aided schools for filling up the vacant  

posts in the school.   

11. Holding the brief on behalf of Ms. Sunita Rao,  

learned  Advocate,  appearing  for  the  respondent  

schools, Ms. Mahalakshmi Pavani, learned Advocate,  

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submitted that as had been held by the Division  

Bench  of  the  Andhra  Pradesh  High  Court,  the  

rationalization  process  was  violative  of  Rule  

10(17)  of  the  A.P.  Educational  Institutions  

(Establishment,  Recognition,  Administration  and  

Control of Schools Under Private Management) Rules,  

1993,  inasmuch  as,  although,  the  said  statutory  

Rules stipulated that the strength of students in  

private  aided  schools  for  two  consecutive  years  

would  be  the  determining  factor  for  transfer  of  

surplus staff, the State had resorted to a wholly  

whimsical and arbitrary method to determine such  

surplus staff.  Ms. Pavani submitted that in any  

event, having permitted the schools in question to  

fill up the vacant grant-in-aid posts after taking  

into account the need and the roll and attendance  

of students, it was no longer open to the State  

Government to adopt a different posture on account  

of the Memo dated 20th October, 2004, which was, in  

any event, prospective and not retrospective.  Ms.  

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Pavani  submitted  that  interviews  had  been  duly  

conducted on 14th December, 2004, for filling up the  

vacant posts in question, but the State Government  

had  quite  unreasonably  refused  to  allow  the  

recruitment process to be completed and to grant  

approval  to  candidates  who  had  already  been  

interviewed and had been selected for appointment.

12.   Having  considered  the  submissions  made  on  

behalf of the respective parties, we are of the  

view that no interference is called for with the  

judgment and order of the Division Bench of the  

High Court.  There is no dispute that the Memo  

dated  20th October,  2004,  imposing  a  ban  on  

recruitment to grant-in-aid posts was issued after  

the schools in question had been given permission  

by  the  State  authorities  to  fill  up  the  vacant  

posts in the schools being managed and run by the  

writ petitioners, who are the respondents in these  

Special Leave Petitions.  There is also no dispute  

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that  the  said  Memo  was  not  given  retrospective  

effect so as to negate the approval already given  

for filling up the grant-in-aid posts.  The State  

Government  and  its  authorities  could  not,  

therefore, contend that the rationalization process  

which  had  been  introduced,  would  also  apply  in  

respect  of  the  private  aided  schools,  where  the  

process of recruitment had already been commenced  

pursuant  to  the  approval  granted  earlier.  

Furthermore, as was submitted by Ms. Pavani, even  

the approval which was granted for filling up the  

vacant  aided  posts,  had  been  granted  after  due  

scrutiny as to the requirements of the schools in  

question.  Since  it  is  well-settled  that  

administrative  orders  are  prospective  in  nature,  

unless  they  are  expressly  or  by  necessary  

implication  made  to  have  retrospective  effect,  

there is no need to refer to the decisions cited by  

Ms. Pavani, appearing on behalf of the respondent  

schools.   

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13. As indicated hereinbefore, we, therefore, see  

no reason to interfere with the judgment and order  

of the Division Bench of the Andhra Pradesh High  

Court impugned in these Special Leave Petitions and  

the same are accordingly dismissed.   

14. As  far  as  SLP(C)Nos.15231-32  of  2011  are  

concerned,  the  same  have  been  filed  by  the  

Government of Andhra Pradesh, represented by its  

Principal  Secretary,  Education  Department,  

Hyderabad, against Shaik Lal Mohammed and others.  

These Special Leave Petition are directed against  

the  orders  in  the  Writ  Appeals  filed  by  the  

Correspondent,  Asafia  High  School,  Malakpet,  

Hyderabad, against Shaik Lal Mohammed and others.  

The  school  was  aggrieved  by  the  order  of  the  

learned Single Judge in a writ petition filed by  

two employees of the school for a direction upon  

the State authorities to convert their posts into  

Class IV posts with effect from 9th June, 1980 and  

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16th March,  1981,  respectively,  and  to  pay  them  

their  arrears  of  salaries,  which,  according  to  

them, were due.  The two respondents had worked as  

sweeper  and  gardener-cum-watchman  from  9th June,  

1980 and 16th March, 1983, respectively.  It was  

their  claim  that  since  their  posts  had  been  

admitted into the grant-in-aid scheme and they had  

been appointed as full-time contingent employees,  

they were entitled to claim the benefit of certain  

Government Orders under which they were entitled to  

be converted as employees on the last grade service  

and the salary attached to such grade.

15.  Claims of the said respondents were rejected  

by the State authorities on the ground that the  

posts had not been created under the orders of the  

Competent  Authority  and  they  had  not  been  in  

service for a period of 10 years as on 1st April,  

1985.   Furthermore,  they  had  not  acquired  the  

minimum educational qualification of Class VII as  

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on the day G.O.Ms.No.259 dated 18th June, 1993, had  

been published.  The learned Single Judge held that  

the  said  G.O.Ms.  dated  18th June,  1993,  was  

applicable to the said two respondents, who were  

the writ petitioners, and since the said findings  

had not been challenged by the Government, they had  

become final and, accordingly, the said respondents  

were entitled to have their posts converted into  

Class  IV  posts.   Consequently,  the  order  of  

rejection passed by the Regional Joint Director,  

Hyderabad, dated 6th April, 2004, was set aside and  

the writ appeal filed by the State against the said  

decision of the learned Single Judge was dismissed  

and the writ petitions filed by the said respondent  

Nos.1 and 2 were allowed.   

16. It  is  in  the  light  of  the  finding  of  the  

Division Bench of the High Court that findings of  

the learned Single Judge, had not been challenged,  

that G.O.Ms.No.259 dated 18th June, 1993, was made  

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applicable to the petitioners.  As the same had  

become final as between the writ petitioners and  

the State and it was no longer open to the State to  

come to a different conclusion, we see no reason to  

interfere with the impugned decision of the High  

Court  and  the  said  Special  Leave  Petitions  are,  

accordingly, dismissed also.

17. As far as SLP(C)No.469 of 2011 is concerned,  

the same has been filed against the judgment and  

order dated 9th July, 2007, passed by the Division  

Bench of the Andhra Pradesh High Court, rejecting  

the prayer made on behalf of the State and the  

State authorities to condone the delay of 366 days  

in filing the writ appeal. Even the filing of the  

Special  Leave  Petition  was  delayed  by  107  days.  

Since the subject matter of the writ petition was  

also  with  regard  to  the  application  of  the  ban  

order imposed by the Memo dated 20th October, 2004,  

which we have already considered in SLP(C) Nos.9541  

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and 10945 of 2007 decided in the earlier part of  

the judgment, we are not inclined to interfere with  

the order of the Division Bench dismissing the writ  

appeal on the ground of delay. The SLP(C)No.469 of  

2011 is, therefore, dismissed in the light of the  

decision rendered in the aforesaid Special Leave  

Petitions and also on the ground of delay.

18. Having regard to the different circumstances in  

which the Special Leave Petitions have been filed,  

the parties will bear their own costs therein.

……………………………………………………J.               (ALTAMAS KABIR)

……………………………………………………J.                       (CYRIAC JOSEPH)

……………………………………………………J. (SURINDER SINGH NIJJAR)

New Delhi, Dated: 06.09.2011       

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