GOVT. OF A. P. & ORS.versusSRI SEVADAS VIDYAMANDIR HIGH SCHOOL & ORS.

                       (2011] 11 S.C.R. 170


A                    GOVT. OF A. P. & ORS.
                                 v.
     SRI SEVADAS VIDYAMANDIR HIGH SCHOOL & ORS.
       (Special Leave Petition (Civil) No. 9541 of 2007)
                      SEPTEMBER 06, 2011
B
    [ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
                  SINGH NIJJAR, JJ.)

        SERVICE LAW:
c
        Private Schools - Grant-in-aid posts - Filling up of -
  State of Andhra Pradesh Memo No. 1280/COSEIA212004-4
  dated 20. 10. 2004 imposing ban on filling up of existing
  vacancies - Held: The Memo was issued after the schools
0 had   been given permission to fill up the vacant posts - It was
  not given retrospective effect - Therefore, no interference is
  called for with the judgments of the High Court that the ban
  would not be applicable to the recruitment process already
  initiated by the management of the private schools nor would
E the rationalization process apply to such schools.
       Writ petitions were filed befC?re the High Court
  challenging the Memo No.1280/COSE/A2/2004-4 dated
  20th October, 2004, issued by the State Government of
  A.P., by which ban was imposed on the filling up of
F existing vacancies in the aided posts of teachers where
  the recruitment process had already been initiated by the
  management of the private schools. In some cases, a
  further prayer was made that the authorities concerned
  be also restrained from transferring the teachers from one
G school to another by declaring them surplus and to
  release the amount of salaries payable to the teachers
  appointed against the aided posts. The Single Judge of
  the High Court declared that the said ban would not be
  applicable to the recruitment process already initiated by
H                             170
      GOVT. OF A. P. & ORS. v. SRI SEVADAS             171
          VIDYAMANDIR HIGH SCHOOL
the management of the private schools for filling up the      A
vacant aided posts of teachers prior to the cq!fling into
effect of the Memo in question and gave a direction to the
authorities to allow the writ petitioners to complete the
process of selection. The appeal filed by the State
Government were dismissed by the Division Bench of the        s
High Court. The Division Bench also quashed the
exercise of rationalization undertaken by the Government
in furtherance of the interim order dated 31.10.2005
together with directions contained in letter dated
03.11.2005, and gave the liberty to the State Government      c
to undertake a fresh exercise of rationalization which
might lead to certain teachers being declared surplus and
for their absorption. Aggrieved, the State Government
filed the special leave petitions.
    Dismissing the petitions, the Court                       D

     HELD: 1.1. No interference is called for with the
judgment and order of the Division Bench of the High
Court impugned in these special leave petitions. There
is no dispute that the Memo dated 20.10.2004, imposing        E
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. There
is also no dispute that the said Memo was not given
retrospective effect so as to negate the approval already     F
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           G
already been commenced pursuant to the approval
granted earlier. Furthermore, 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. It is well-settled that           H
    172     SUPREME COURT REPORTS             [2011) 11 S.C.R.

A administrative orders are prospective in nature, unless
  they are expressly or by necessary implication made to
  have retrospective effect. [Para 12-13] [179-A-F]

         2. As regards SLP {C) Nos. 15231-32 of 2011 filed by
    the State Government questioning the claim of a sweaper
8
    and a gardener-cum-watchman for converting them as
    employees on the last grade service and the salaqry
    attached to such posts consequent upon their posts
    having been admitted into the grant-in-aid scheme, the
C   Singh Judge of the High Court allowed their claim holding
    that. G.OMs. No. 259 dated 18.06.1993 was applicable to
    their case. The Division Bench of the High Court
    dismissed the appeal of the State Government. It is in the
    light of the finding of the Division Bench of the High
    Court that findings of the Single Judge had not been
D   challenged, that G.O.Ms.No.259 dated 18.06.1993, was
    made 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, there is no reason to interfere with
E   the impugned decision of the High Court. [Para 15-16]
    [180-E-H; 181-A-B]

       3. As far as SLP {C) No. 469 of 2011 is concerned,
  the Division Bench of the High Court rejected the prayer
F made on behalf of the State Government 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 wri.t petition was also with
  regard to application of the ban order imposed by the
  Memo dated 20.10.2004, which tias already been
G considered in SLP {C) Nos.9541 and 10945 of 2007, this
  Court is not inclined to interfere with the order of the
  Division Bench dismissing the writ appeal on the ground
  of delay. [Para 17] (181-C-E]

H
      GOVT. OF A. P. & ORS. v. SRI SEVADAS               · 173
          VIDYAMANDIR HIGH SCHOOL
     CIVIL APPELLATE JURISDICTION: SLP (Civil) No. 9541          A
of 2007.

    From the Judgment & Order dated 29.12.2006 of the High
Court of Judicature Andhra Prade~h at Hyderabad in Writ
appeal No. 1578, 1579, 1585, 1643, 1672, 1681, 1726, 1746,       B
1759, 1932, 1941, 1942, 1943, 1944, 1979, 1987, 1992, 1993,
2006,2022,2034,2069,2155,2165,2166,2167,2180,2185,
2186, 2187, 2249, 2247, 2285, 2289, 2319 and 2383 of 2005,
104, 148, 309, 739, 1381, 1382, 1383, 1384, 1385, 1386,
1387, 1388, 1389, 1390, 1391, 1393, 1394, 1395, 1396, 1397,      c
1398, 1399 & 1400 of 2006 and W.P. Nos. 21793, 21794,
24718, 24983, 25215, 25481, 25482, 25522, 25524, 25527,
25583, 26323, 26328 of 2005 and 3330, 3450, 3451, 3531,
3550, 3575, 3587,3594,3599,3643, 3660,3821,3822,3823,
3837, 4240, 4241, 7031, 7068, 7069, 7070, 7120 of 2006.
                                                                 D
                              WITH
SLP (C) Nos. 10945 of 2007, 15231-15232, 469 of 2011.

    P. Vishwanatha Shetty, I. Venkatanarayana, G.N. Reddy,
C. Kannan for the Petitioners.
                                                                 E
    Mahalashmi Pavani, B. Sunita Rao, J. Balaji, Priya
Bhatnagar, A. Filza, Anindita Popli, C.K. Sucharita, Ashok
Mathur, Guntur Prabhakar, K. Sarada Devi, D. Mahesh Babu,
Dr. Kailash Chand, C.S.N. Mohan Rao, Prem Prakash, P.
Venkat Reddy, Anil Kumar Tandale for the Respondents.            F

    The Judgment of the Court was delivered by

     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,   G
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
                                                                 H
    174       SUPREME COURT REPORTS               [2011] 11 S.C.R.


A 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
B 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.

C       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.

       3. The subject matter of the various writ petitions, which
D 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
E 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
F 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
G complete the process 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.

H         4. For the sake of convenience, the Division Bench of the
     GOVT. OF A. P. & ORS. v. SRI SEVADAS    175
 VIDYAMANDIR HIGH SCHOOL [ALTAMAS KABIR, J.]
Andhra Pradesh noted the facts from the paper book of                 A
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            B
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.

       5. C.A.M. High School, Nellore, is a private aided school      C
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,    D
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            E
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 Officer, Nellore, to forward       F
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       G
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
flied Writ Petition No.22804 of 2004 for a declaration that the       H
    176     SUPREME COURT REPORTS                (2011] 11 S.C.R.


A 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
B noted by the Division Bench, in the counter filed by the Dis:trict
  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
c 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
D 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
E Government vide Memo dated 20th October, 2004. The
  Division Bench observed that the learned Single Judge had
  taken 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 2oth October, 2004.
F
        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
G 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
H advised. In furtherance of such leave, the writ petition filed by
     GOVT. OF A. P. & ORS. v. SRI SEVADAS    17-7
 VIDYAMANDIR HIGH SCHOOL [ALTAMAS KABIR, J.]
the C.A.M. High School, Nellore, was amended to challenge           A
the legality of the said Memo dated 20thtt0ctober, 2004.
Ultimately, the 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     B
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         c
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.         D
P. Vishwanatha Shetty, learned Senior Advocate, submitted
that the ban order imposed by the State 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           E
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         F
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     G
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 State
Government to rationalize the staff pattern of the different
institutions on a need-based basis.                                 H
    178       SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A      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
B 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 ttie private aided schools for filling up the vacant posts
c 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, submitted that as had
    been held by the Division Bench of the Andhra Pradesh High
D   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
E   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
F   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. Pavani submitted
G   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
H   selected for appointment.
     GOVT. OF A. P. & ORS. v. SRI SEVADAS    179
 VIDYAMANDIR HIGH SCHOOL [ALTAMAS KABIR, J.]
        12. Having considered the submissions made on behalf A
  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 B
  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 that the said Memo was
  not given retrospective effect so as to negate the approval       c
  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 D
  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, E
  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.

     13. As indicated hereinbefore, we, therefore, see no           F
 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.
                                                                    G
     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             H
    180      SUPREME COURT REPORTS                [2011] 11 S.C.R.


A 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
B the State authorities to convert their posts into Class IV posts
  with effect from 9th June, 1980 and 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
c and 16th March, 1983, respectively. It was their claim that since
  thejr posts had been admitted into the grant-in-aid scheme and
  the_y 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.
0
        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,
E 1985. Furthermore, they had not acquired the minimum
  educational qualification of Class VII as on the day
  G.O.Ms.No.259 dated 18th June, 1993, had been published.
  The learned Single Judge held that the said G.0.Ms. dated 18th
  June, 1993, was applicable to the said two respondents, who
F 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,
G Hyderabad, dated 6th April, 2004, was set aside and the writ
  appeal filed by the Stan:i against the said decision of the
  learned Single Judge was dismissed and the writ petitions filed
  by the said respontjent Nos.1 and 2 were allowed.

       16. It is in the light of the finding of the Division Bench of
~ the High CoW1 that findings of the learned Single Judge, had
     GOVT. OF A. P. & ORS. v. SRI SEVADAS    181
 VIDYAMANDIR HIGH SCHOOL [ALTAMAS KABIR, J.]
not been challenged, that G.O.Ms.No.259 dated 18th June,              A
1993, was made 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       B
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                C
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,              D
2004, which we have already considered in SLP(C) Nos.9541
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 l_ight of        E
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/ F
bear their own costs therein.                 .            /

R.P.                       Special Leave Petitions dismissed.