IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction) FRIDAY, THE TWENTY FOURTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HON’BLE DR JUSTICE K. MANMADHA RAO WRIT PETITION NO: 41725 OF 2022 Between: K. V. F. Ajay Kumar, S/o. late Shanthamurthy, aged about 50 years. School Assistant (Science) St. Mary Fathima High School, Nandyala, Nandyala District, Andhra Pradesh. ...PETITIONER AND The Government of Andhra Pradesh, Represented by its Principal Secretary for School Education, Secretariat, Velagapudi, Amaravati Guntur District. The Director of School Education, Ibrahimpatnam, Krishna District, Andhra Pradesh. The Regional Joint Director of School Education, Kadapa, Kadapa District, Andhra Pradesh. The District Educational Officer, O/o. District Educational office, R.S.Road, Nandyala, Nandyala District. The Mandal Educational Officer, Dispensing and Drawing Officer (DPO) Nandyala, Nandyala District. The Management of St. Mary Fathima High School, Nandyala, Nandyala District, Represented by the Correspondent K.A. Prakash, S/o. late Shanthamurthy, aged about 57 years, Nandyala, Nandv3la District. 1. 2. 3. 4. 5. 6. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court be pleased to issue a writ or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of 6 implementing the proceedings in Rc.Nol sp1/2021, dated 25-02-2022 may th respondent not r ■ ^ th respondent and proceedings in Rc.No.1780/B2/2018 respondent as illegal, irregular, arbitrary and violative of settled principles of service jurisprudence, contrary to provisions of the Andhra Pradesh Civil Service (CCA) Rules, 199.1 and offends Articles 14 and 21 of the Constitution of India and consequently direct the respondent to implement the proceedings in Rc.Nol spl/2021, dated 25-02-2022 issued by the 5'^ respondent and pay him all attendant benefits i.e. pending annual increments and proceedings in Rc.No.1780/B2/ 2018 dated 30-05-2018 issued by the 3'^ Respondent in respect of the promotion of the petitioner as a Head Master. issued by the 5 dated 30-05-2018 issued by the 3 rd lA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to stay all further proceedings in Rc. No.Spl/2018 dated 25-01-2018 issued by the 6^^ respondent and direct to implement the proceedings issued by the 3'^'^ and 5'^ respondents in respect of the pending annual increments with arrears and promotion of the petitioner, till the disposal of the writ petition. Counsel for the Petitioner : SRI HARANADHA RAJU KATTA Counsel for the Respondent Nos.1 to 5 : GP FOR SERVICES III Counsel for the Respondent No.6 : Mrs. K.N. VIJAYALAKSHMI The Court made the following: ORDER 1 ^ APHC010706492022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) • FRIDAY ,THE TWENTY FOURTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 41725/2022 [3310] Between: ...PETITIONER K V F Ajay Kumar AND ...RESPONDENT(S) The State Of Andhra Pradesh and Others Counsel for the Petitioner: 1.HARANADHA RAJU KATTA Counsel for the Respondent{S): 1.K N VIJAYA LAXMI 2.GPFOR SERVICES III 3.GP FOR SCHOOL EDUCATION The Court made the following: ORDER: This writ petition is fiied under Article 226 of the Constitution of India, for the following relief: 2 3rcl respondent ,n respect of the promotion of the petitioner /sst/ed 6y the as a Head Master and pass ” 2. Brief facts of the are that the School (St. Mary Fathima High case School, Nandyala) was established by one Smt Samadanamma to provide education to the poor students with any profit motive in a rented house and it name "St. Mary Fathima Upper Primary Nandyala" being society registration was registered as a society by School, Committee, Kurava Peta, No.39/1968. However, she handed over the correspondent ship to K.A. Shnatha Murthy in the year 1970 who is the father of the petitioner and 6th respondent. The said K.A. Shantha Murthy correspondent of the said school. Due to his old worked as president-cum- age he transferred his correspondent ship to the 6*'^ respondent. Unfortunately, said Shantha Murthy passed away on 18-07-2017; K.A. Prakash acting as a school Correspondent without any eligibility to be correspondent of the the Director of School Education, A.P. school vides proceedings of Hyderabad, Rc.No;613/D3-2/201, dated 16-08-2021. During the course of time some family and financial disputes arose between the family members of the late Shantha Murthy, the who is eligible order to avoid effecting promotion against the legitimate rules prescribed by the Government. It is further stated that the petitioner is Qualified B.Sc., B. Ed., and has been working as School Assistant (Science) since 22-01-1999 in an Aided post in St. Mary Fathima High School, 6th respondent leveled false allegations against the petitioner for promotion to the Post of Head Master iin to him, created false allegations against the petitioner 3 ^ Nandyala, Nandyala District. He worked as In-charge Head Master from 2012 to 2018 It is further stated that the correspondent leveled false allegations against the petitioner as he engaged one by name as Sri S. Jabbar, to teach Physical Science subject to the students of X Class and also she conducted the admission test to the students while they come for new admission in school. In response to the allegations, the petitioner submitted his detailed explanation to correspondent.. In fact the petitioner has taken oral permission of the Correspondent and with acceptance of the Correspondent and School Committee; Sri S. Jabbar was allowed to teach Physical Science to X Class students after school hours without remuneration as he was old student and accepted to work voluntarily. It‘is further stated that, with the false and frivolous allegations the correspondent of the 6th respondent holding of the two periodical annual increments for the period 01-01-2019 and another from 01-01-2020 without conducting neither any departmental enquiry nor with the permission of higher authorities which is totally against as per the existing rules of the Government. On the basis of representation made by the petitioner, the 5th respondent informed to the 6th respondent by way of proceedings in Rc.No.1spl/2021 dated 25-02-2022 stating that without obtain prior approval from the Department, he could not independently impose any of the punishment and with holding the supra mentioned periodical annual increments of the petitioner is irregular and against to the rules. But so far no action has been taken by the respondents. 'V., w 4 It is further stated that, as per the proceedings Rc.No.613/D2/2/2001 dated 16-08-2001 of the Director of School Education, A.P. Hyderabad, the teacher working in a Grant-In-Aid School is not eligible to hold the post of correspondent for the same school. The Correspondent of the 6th respondent by name K.A. Prakash has been working as School Assistant (Maths) in a Grant-In-Aid Post in the same school and continuing as Correspondent of the said school for a longtime. As per the proceedings he is not competent person to issue show cause notice to the petitioner and he is not eligible person to withholding the increments of the petitioner without any authority. Hence the present writ petition. 3. Heard learned counsel for the petitioner and learned counsels for the respondents are present. 4. On hearing, learned counsel for the petitioner while reiterating the contents made in the petition, submits that, an employee is under suspension pending enquiry increments cannot be denied to him and also increments can be withheld only by specific order by the Government. When there is such specific increments order or for withholding postponement of increments cannot be denied even during the period of suspension. He submits that, in the present case, there is no such type of specific order from the Government, the 6th respondent holding the two increments of tfie petitioner, is highly illegal and against to law. He further submits that in similar circumstances this Court has passed orders vide WP No.2725 of 2021,dated 05.02.2021 and also the order passed by this Court in WP No.28235 of 2018 dated 5 29.02.2024, and hence, requests this Court to pass similar order in this writ petition also. 5. On the other hand, learned Government Pleader conceded to the request made by the learned counsel for the petitioner. 6. Perused the material on record. 7. It is an admitted fact that the petitioner has been working as School Assistant (Science). It is also fact that the petitioner has worked as In-charge Head Master during the period 2012 to 2018. Further, the correspondent leveled false allegations against the petitioner that he engaged one by name Sri S Jabbar to teach physics subject to teach students of X Class and also he conducted the admission test to the students while they come for new admission in school when the petitioner was working as HM In-charge of the school during the period 2012 to 2018 and the petitioner has been irregular to discharge his duties. It is ^he contention of the petitioner that, basing on the above false allegations, the respondent holding of the two periodical annual increments for the period 01.01.2019 and another from 01.01.2020 without conducting neither any departmental enquiry nor with the permission of higher authorities, is highly illegal and arbitrary. 8.. At this juncture, it is essential to refer to the Section 79 of the Andhra Pradesh Education Act, 1982, which reads as under: Section 79. Dismissal, removal or reduction in rank or suspension, etc. of employees of private institutions - 'W 6 i (1) No teacher or member of the nonteaching staff employed in any private institution (hereinafter in this Chapter referred to as „the employee') shall be dismissed, removed reduced in rank except after an inquiry in \which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: [Provided that no order of dismissal, removal or reduction in rank shall be passed under this sub-section against an employee other than an employee of a minority educational institution without the prior approval of such authority or Officer as may be prescribed for different classes of private institutions: Provided further that the management may prefer an appeal against any order of the Officer or authority refusing approval under this sub-section to such authority or officer and within such period as may be prescribed ] (2) An inquiry under sub-section (1) shall be completed within a period of two months from the date of communication of charges against the employee. (3)(a) No employee shall be placed under suspension except when an inquiry into the gross misconduct of such employee is contemplated, (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not started and completed within that period, such employee shall without prejudice to the inquiry, be deemed to have been restored as employee: Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if in the opinion of such competent authority the inquiry could not be completed within the said period'of two months for reasons directly attributable to such employee. (4) Every such employee as is placed under suspension under subsection (3) shall be paid subsistence allowance at such rates as may be prescribed during the period of his suspension. (5) Before imposing any penalty, other than the penalties 14 specified in sub-section (1), an employee shall be informed in writing of the allegations on which action is proposed to be taken and be given an opportunity of making a representation, but it shall not be necessary to hold an oral inquiry into such allegations. Further, Rule-19 of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 as enumerated in G.O.Ms.No.1 Education (P.S.2) dated 01.01.1994 reads as under: or 9. Rule 19. Disciplinary Control:- (1) The disciplinary powers are vested with the management in general. The appellate authority against the actions of the management is the competent authority as defined in rule 3. Subject to the provisions of the Act: (a) No employee should be kept under suspension by the management except as provided in Section 79 of the Act. (b) An employee who is kept under suspension shall be paid subsistence allowance at one half of the salary drawn by him immediately before suspension plus allowances admissible on such salary; (c) An order of suspension may at any time be revoked by the next higher authority to the competent authority: 7 (d) In addition to the penalties specified in sub section (1) of Section 79 of the Act the following penalties may also be imposed against any employee for negligence of duty disobedience of orders misconduct, violation of code of conduct or for other sufficient cause: (i) Fine, (ii) Censure, (ni) Withhofding of increments or promotion, (iv) Reduction to a lower rank in seniority or reduction in he time scale of pay, (v) Recovery from pay the whole or part of the pecuniary losses caused to the Government or to the institutions by negligence or breach of orders, (e) No employee shall be dismissed, removed or reduced in rank by an authority subordinate to the management, (f) In every case where it is proposed to impose any of the penalties specified, the ground on which the action is proposed shall be reduced to the form of a definite or charges. The charges shall be communicated to the person charged together statement of allegations and their basis and of any other circumstances leading to the charges. The person charged shall be required within a reasonable time to put a written statement of defence and to state whether he desires an oral enquiry or only to be heard in person for the charge^ The charged person shall be permitted to peruse the records and take extracts from such records as he may specify, provided that the management may for reasons to be recorded in perm^sion, if in its opinion such records are not relevant for the purpose or '* the institution to allow access thereto. If an oral enquiry is desired by the person charged the management shall appoint an Enquiry Officer who shall be superior in rank to the charged Person to conduct enquiry. At that enquiry oral evidence may be heard as to such of the allegations as a admitted and the person charged shall be entitled to cross examine the witness to give evidence in person and to have such witness called as he may wish, provided that the authority conducting the enquiry may for special and valid reasons to be recorded in writing refuse to call ^ ^vitnes®^ enquiry has been completed the person charged shall be entitled to put in if he so ^ 3en statement, of his defence. If no oral enquiry is held and a person charged desses to be heard in person, a personal hearing shall be given to him by the authority directed by ‘h® proceedings shall contain a sufficient record of the evidence and the statement of the findings and the grounds thereof (g) After examination of the report of the Enquiry Officer or where no enquiry has been held on rnctanopc of thp case consideration of the statement of defence of the person charged and other the management shall issue a show cause notice of not less han two '^®®^%*° enclosino the report of the Enquiry Officer. After considering the explanation the management rnay fm osTLy ofrpenalties. Prided that in the case of Jsmissal, management should get prior approval of the authority or officer under sub-section (1) of Section the Act; (h) The above provisions shall not apply where the authority to impose the penalty satisfied for reasons to be recorded in writing that it is not reasonably/practicable to emolovee in writing of the allegations or charges on which action is proposed to be taken or where t is Dmoosed loTpoL the penalty on the ground of conduct which lead to his conviction on a criminal charge which involved moral turpitude. In such cases, the management shall obtain prior permission from the competent authority.” A conjoint reading of Rule 19(g) and Section 79 (1), referred to above, would indicate that the enquiry has to be conducted and the prior the case of dismissal, 10. approval of the competent authority is essential in removal or reduction of rank, before taking such actions. I 8 In Tagore Home Junior College, Secunderabad v. P.P.A. Christian and others^ , a Division Bench of the then Composite High Court of Andhra Pradesh, emphasized on the pertinence of the proviso contained in 11. Section 79 (1), as follows; 27. The proviso appended to sub-section (1) of Section 79 of the Act has been enacted for a purpose of allowing the competent authority to consider the materials on record independent of the opinion formed by the enquiry officer and/or by the disciplinary authority so as to enable him to come to a conclusion that the matter is such where a major penalty is required to be imposed. The competent authority before grant of such approval would, therefore, be required to apply its own mind and satisfy itself, prima facie, that rules of fair play and natural justice have been complied with. The requirement to take prior approval before a punishment can be imposed cannot be said to be an empty formality, which can be dispensed with only in a case where the proviso is attracted. With regard to the importance of complying with the principles of natural justice, reference may be made to a decision of the Calcutta High Court in Sri Hanuman Steel Rolling Mills v. CESC Ltd., AIR 1996 Cal. 449, wherein one among us (S.B. Sinha, J.) observed: “39. In my opinion, the principles of natural justice are required to be complied with, be it pre-decisional hearing or a post decisional one depending on the facts and circumstances of each case”, (emphasis supplied) 12. In the present case, no such exercise has been undertaken by Respondent No.6. 13. It is a settled principle of law that judicial review does not tend to operate as an appeal from a decision, but it investigates the manner in which a certain decision is taken. This power is enshrined to this Court, vide Article 226 of the Constitution of India to ensure fair treatment of the individual in light of the statutory cushions. In this context, the Hon"ble Apex Court while reiterating the position of law laid down by a three-Judge Bench-in B.C. Chaturvedi v. Union of India & Ors.^; in Ex-Const/DVR Mukesh Kumar Raigar v. Union of India & Ors.^ observed as follows; ^ 2001(3) ALD 742 (DB) L 2001 SCC Online AP 354 ^ (1995) 6 SCC 749 ^ 2023 LiveLaw (SC) 44 ' When an inquiry is conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry ' was held by a competent officer or whether the rules of natural justice and statutory rules were complied with” (emphasis suppl'ed). 10 14. In view of the foregoing discussion, in the light of the legal position and law.laid down on the issue involved and on considering the submissions of learned counsel for the petitioner, this Court is inclined to allow the writ petition by setting aside the impugned proceedings. 15. Accordingly, the Writ Petition is allowed. The impugned proceedings in Rc.No.1 Spl/2021, dated 25.02.2022 issued by the 5 respondent and proceedings in Rc No.1780/B2/2018, dated 30.05.2018 issued by the 3"^^ respondent are hereby set aside. However, it is left open to the Respondent authorities to take disciplinary action by following due process of law as per the Governing rules and law. No order as to costs. th As a sequel, pending applications, if any pending, shall stand closed. SD/- N NAGAMMA ASSISTANT, REGISTRAR irafOFFICER 1. The Principal Secretary for School Education, State of Andhra Pradesh, Secretariat, Velagapudi, Amaravati, Guntur District. 2. The Director of School Education, Ibrahimpatnam, Krishna District, Andhra Pradesh. 3. The Regional Joint Director of School Education, Kadapa, Kadapa District, Andhra Pradesh. 4. The District Educational Officer, O/o. District Educational office, R.S.Road, Nandyala, Nandyala District. 5. The Mandal Educational Officer, Dispensing and Drawing Officer (DPO) Nandyala, Nandyala District. 6. The Management of St. Mary Fathima High School, Nandyala, Nandyala District, Represented by the Correspondent K.A. Prakash, S/o. late Shanthamurthy, aged about 57 years, Nandyala, Nandyala District. 7. One CC to Sri Haranadha Raju Katta, Advocate [OPUC] 8. Two CCs to GP for Services III, High Court of Andhra Pradesh. [OUT] 9. One CC to Mrs. K.N. Vijaya Lakshmi, Advocate (OPUC) 10.Three C.D. Copies. Cnr //TRUE COPY// SEC To, HIGH COURT i DATED:24/01/2025 ORDER 5 M FEB 2025 . Curreni a«cuun . WP.No.41725 of 2022 o ALLOWING THE W.P. WITHOUT COSTS