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Judgment
The petitioner filed writ petition, questioning the orders of the Management of the first respondent in Lr. No.71 of 1996, dated 2-11-1996, whereunder the appointment of the petitioner as Grade-II Telugu Pandit was kept in abeyance, until the excess post in Sacred Heart High School which is under the same management is transferred to R.C.M.Cathedral Aided Upper Primary School in the light of rejection orders passed by the District Educational Officer in that regard.
The facts leading to the filing of this case are that initially the petitioner was appointed as Grade-II Telugu Pandit in St.Ann''s Girls High School, Kakinada under the Management of the first respondent-Society in 1993. Since then she was continuously working in that capacity. In the mean time, in September, 1996 the Management of the first respondent-Society notified two vacancies in the post of Telugu Pandit Grade-II for -recruitment. Pursuant to the notification the petitioner not only applied but appeared for written and oral tests that were held on 8th and 9th October, 1996 respectively. Thereafter, the first respondent in its Proceedings No.29/ 96, dated 5-11-1996 appointed the petitioner as Grade-II Telugu Pandit in R.C.M.Cathedral AUP School, Visakhapatnam-1 in place of Smt. K.B.Rajeswari, who retired from service on attaining superannuation from Sacred Heart High School. It is also made clear in that order that the appointment is made pending transfer of the excess post from Sacred Heart High School to R.C.M.Cathedral Aided UP School, Visakhapatnam by the Regional Joint Director of School Education, Kakinada. On 30-11-1996 when the petitioner tried to report to duty, the Headmistress of the School did not permit her to join the duty on the ground that the Department did not agree for transfer of the post from Sacred Heart High School to this Primary School. Intact, it is the case of the petitioner as well as the first respondent that after receipt of the appointment orders the same was kept in abeyance by the first respondent till the Department transfers the excess post to the needy school, simultaneously the Management addressed another detailed letter explaining the need and urgency for transfer of the excess post to this school as such a transfer is permissible u/s 74 of the A.P.Eduction Act as both the schools are under the same management. Since then the Regional Joint Director has not choosen to pass any orders. In those circumstances the petitioner filed this writ petition on 30-12-1996 and this Court by an order dated 27-3-1997 directed the respondents to permit the petitioner to join as Grade-II Telugu Pandit in RC.M.Cathedral A.U.P.School, Visakhapatnam, pending disposal of the writ petition.
From the factual narration in this case, it is seen that in spite of the orders of this Court the respondents did not permit the petitioner to join duty and she approached one Mr. S.Siva Prasad, Advocate practising in High Court, who advised her that she can file another writ petition instead of filing a contempt case, with the result, for the same relief, the poor petitioner was forced to file another writ petition in WP No. 19049 of 1997. That writ petition was admitted on 30-8-1997 and simply notice was ordered in interim direction petition. When the first writ petition came up for hearing before me the learned Counsel for the petitioner brought to my notice that the petitioner filed another writ petition and both of them can be disposed of together. In that manner, both the writ petitions are listed before me for final hearing.
The only question that arises for consideration in this writ petition would be whether an existing aided-post in one of the educational institution can be transferred to another educational institution where there is need, if both the schools are under the same Management and whether the action of the respondents in refusing to transfer the post is a legal one or not?
Section 74 of the Act deals with the subject, which is as follows:
"74. Posts of employees of educational institutions vested under this Chapter to be treated as a unit for certain purposes:
The posts in each category of employees of the educational institutions in a district which have vested in the Government under this Chapter shall be a separate unit for purposes of seniority, discharge, revision for want of vacancies, re-appointment of probationers and approved probationers and appointment of full members."
From this it is seen that this provision is mainly intended for the Schools taken over by the Management and when once the Management is vested in the Government each category of employees in the educational institution that came under the management of the Government, District will be the unit for the purpose of seniority, discharge, reversion for want of vacancies, re-appointment of probationers and appointment of full members. To be more specific each category of employees under the management of the Government shall form a separate category for the purpose of seniority etc. As far as the private-schools are concerned, the Counsel for the petitioner did not bring to my notice any provision. But at the same time it should be kept in mind that in 1987 a Full-Bench of five Judges of this Court held that when once a school is admitted to grant-in-aid all the postulates under Article 14 are available to the employees working in those institutions. The view taken by the Court was approved by the Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., . Justice Jeevan Reddy speaking for the majority held so far as the aided institutions are concerned it is evident that they have to abide by all the Rules and Regulations framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. Further, the learned Judge went a step ahead and clearly declared that imparting of education is the principal activity of the State and the activity of the private educational institutions is only supplemental to the activities of the State. In the words of Justice Jeevan Reddy, the private educational institutions are merely supplementing the efforts of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemented to the principal activity carried on by the State.... The incidents attaching to the main activity attach to supplemental activity as well. In other words what applies to the main activity equally applies to the supplemental activity. The State cannot claim immunity from the obligation arising from Articles 14 and 15. If so it would not confer such immunity to affiliates. In other words all the postulates of Articles 14 and 15 are equally applicable to the private institutions as they are only supplementing the principal activity of the State. If the same analogy is applied here it is not in dispute that both the schools are under the same management and they are within the District. As there is no sufficient work-load to continue the aided-posts in Sacred Heart High School and as there is need for creation of a new post in that RCM Cathedral AUP School the management rightly requested the Government to transfer the post from that school to this school instead of seeking for creation of a fresh post here and abolish the same there.
The Government Pleader for Higher Education, who is present in the Court, at this stage, brought to my notice that the view taken by me runs counter to the view taken by the Court in Dr. Sr. Y. Philomena, Principal and Correspondent St. Ann''s College Vs. The Prl. Secretary to Govt., Education Department and Others, . But fairly conceded that the judgment was prior to Unni Krishnan case (supra). After Unni Krishnan case (supra) the entire gamut of school education that is being imparted by the private educational institutions has undergone a sea change. Hence, I need not follow the judgment of the Division Bench in the light of the view taken by the supreme Court in Unni Krishnan case (supra).
Now, as per the counter filed by the respondents the reason given by the respondents for not effecting the transfer is that the budget provision and head of account is separate for primary and secondary units. Even assuming what the deponent stated is correct the institution to which the transfer is sought is an Upper Primary School where students/pupil will be taught upto 7th class and it cannot be said that it is purely a primary school and the school to which the transfer is sought is both a primary and a secondary school. For the sake of convenience, the Government might have given the nomenclature as Upper Primary School. On that ground the respondents cannot reject the request of the Management for transfer of the post of Telugu Pandit Gr.II, which is essential to teach the students of mostly 6th and 7th classes, which falls under secondary education. Hence, the reason given by the respondents in not acceding to the request of the petitioner has no legs to stand.
For the reasons recorded above the petitioner has to succeed in the writ petition and accordingly the writ petition is allowed with a consequential direction to the respondents to pay the salaries to the petitioner from the date of interim order of this Court which is subsisting till this date i.e., from 27-3-1997.
Hence, a direction is given to the respondents 2 and 3 to accord permission to the 1 st respondent-management to transfer Telugu Pandit Gr.II post which has fallen vacant on the retirement of Smt. K.B.Rajeswari in Sacred Heart High School to the RCM Cathedral Aided U.P.School forthwith, with a consequential direction to release the grant-in-aid from the date of interim order dated 27-3-1997. The arrears have to be paid to the petitioner within three months from the date of receipt of the order.
W.P.No. 28536 of 1996 (On being mentioned)
After the judgment was pronounced in the above writ petition, I had an occasion to go through the Statutory Rules of "A.P.Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules," 1993 issued in G.O. Ms. No.1, Education (PS-II) dated 1-1-1994. Rule 17 deals with the Transfer of Staff along with the post to any other needy private aided or local body school within the District whenever there is fall in strength in private aided school for two subsequent academic years and certain other circumstances.
It is useful to extract the Rule 17 of the said Rules for better appreciation of the case.
"(17) that when private aided schools are forced to be closed down for any reason or whenever the management of the school goes out of the way to remove any of its staff members or whenever there is fall in strength in a private aided School for two subsequent academic years, the Competent Authority may transfer the staff along with the posts to any other needy Private Aided or Local Body School within the district
From the above, it is evident that the competent authority is empowered to transfer the staff of any private school along with the posts not only to a private aided school under the same Management but also to any other school under different management within the District, when there is a fall in the student-strength or when the Management of a private aided schools are forced to close down the institution for any reason or whenever the Management of the school goes out of the way to remove any of the staff member.
In this case as there is a fall in the student-strength in Sacred Heart School and there is a need for Telugu Pandit Gr.H in RCM Cathedral AUP School and both are under same management. The competent authority instead of accepting the request of the Management rejects the request by giving untenable reasons. The reasons given for rejection of the request were dealt with in the above paras (in the judgment). Hence the view taken by me in this writ petition is also supported by a Statutory Rule framed by the Government.