RAMA MOHAN Vs. DIRECTOR HIGHER EDN

JUDGEMENT

(1.) The petitioner herein is the President of the governing body ofS S.R.J. College Khammam. He is also the correspondent of that college. The college is admitted by the Government to grant-in-aid scheme and is subject to some degree of remote control by the State. The petitioner has terminated the services of certain teachers on 16-3-1978. Those teachers had preferred appeals to the appellate authority under Section 4 of Act 11 of, 1975 which was then in force and was later repealed. The appellate authority issued interim directions directing reinstatement of those teachers. S. 3 of Act 11 of 1975 says that no teachers in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority, A proviso to that section says that if any educational agency or instititution contravenes the above provisions of the Act, the teachers affected shall be deemed to be in service. The termination orders passed by the writ petitioner are admittedly without the prior approval of the competent authority. It was for that reason the appellate authority had directed the petitioner to reinstate the teachers whose services have been terminated. That power has been exercised apparently under the provisions of Section 4 of Act 11 of 1975. But that Sec. provides only for entertaining an appeal by any teacher who has been dismissed or removed or reduced in rank or whose appointment is otherwise terminated. That Section does not provide for granting of any interim relief by the appellate authority as Section 80 Sub-Section 3 of the A.P. Education Act, 1982 (Act I of 1982) which is now in force does, the legal position is clear. The interim orders of the appellate authority are invalid. In any case, the petitioner has not complied with the orders of reinstatement passed by the appellate authority for long time.' But subseqaently the disemissed teachers were reinstated On 14-10-19-78. That was in pursuance of a compromise into between the teachers and the correspondent at the instance of mediators. But the educational deprtment. which does not seem to be greatly educated in law seems to be greatly irritated by the failure of the writ petitioner to obey the orders of reinstatement passed by the appellate authority which are void to begin with. It charged the petitioner on 14-8-1978 with the three defaults. Firstly the petitioner was charged for disobeying the orders of reinstatement passed by the appellate authority. Secondly the petitioner was also charged with the failure to maintain the standards of the college that led to Osmania University to discontinue recognition to the college for the academic year 1978-79 for teaching B.A., and B.Com., degree courses. The third charge which was personal to the correspondent was that he could not be both a principal of Government college and a correspondent of a college. On the above basis, the petitioner is called upon to show cause why he should not be declared permanently unfit under clause 7 of the A. P. Grants-in-aid Code to be a correspondent. The relevant portion of clause 7 of the Code reads as follows :"The Director may after giving an opportunity for making representation declare any person unfit to hold the post of correspondent in respect of a college receiving aid under the Code and remove from the correspondentship either permanantly or temporarily for receiving aid under the Code and remove him for a specific period for a proved charge of maladministration or failure to comply with or not following or adhereing to the instructions issued by the department. This may be deemed to be necessary under the provisions of the Act. The order of the Director in all such matters shall be final". The petitioner in his affidavit had asserted more than once that he had submitted an explanation to this charge memo on 17-10-1978. In that -explanation the petitioner explained that hi had already reinstated teachers in pursuance of the comprise entered into between the parties and that he had resigned from the Government service of Principalship, and that therefore, no further action should be taken against him. Although the petitioner in his writ affidavit had asserted at more than one place that he had submitted the above explanation and in fact made that one of the grounds of this writ petition strangely the Education Department has not denied the fact of petitioner filing his explanation. I, therefore, accept the undenied assertion of the petitioner to be true. But the Education Department proceeded as if no explanation was received by it. Proceeding on the basis that the petitioner has not submitted any exalanation the Department has issued a second show cause notice dated 24-12-1979 calling upon the petitioner to explain the same conduct. On 1-1-1980 the petitioner wrote that he may be granted a month's time for filing explanation because he was busy in a parliamentary election where he was contesting as one of the candidates. The Director of Higher Education without reference to the earlier explanation of the petitioner dated 17-10-1978 and passing no orders on the petitioner's request for extension of time and holding the petitioner as having not submitted any explanation and finding that the charge relating to the failure to reinstate and failure to maintain standards has been made out ; declared the petitioner unfit permanently to be tbe correspondent of any college as per Rule 7 of Grant-in-aid Code. The operative portion of that order dated 15-2-1980 reads thus ;-"Sri. K. Ram Mohan, Correspondent, S.S.R.J. College, Khammam is hereby declared unfit permanently to be the correspondent of any college as per Rule 7 of Grant-in-aid Code Rules". The present writ petition has been filed against the above order. Respondents 2 to 61, employees of the college, have impleaded themselves as respondents in opposition to the writ petition. Obviously they enjoy watching the fun of this litigation. Otherwise, I see no purpose in their joining this writ petition.

(2.) The first argument of the learned counsel for the petitioner is thatthis request for a month's time which he made through his application dated 1-1-1980 was not replied to at all and that the impugned order has been passed on 15-2-1980 even without considering his earlier application dated 17-10-1978 and that therefore the impugned order should be held to be bad on the ground of violation of principles of natural justice and failure to observe fair procedure. His second argument is that by the time the 2nd show cause notice has come to be given on 24-12-1979 he had rectified all the defects by resigning the Goverment service and reinstating the teachers and also obtained permission from the Osmania University to run B.A., and B.Com., Courses. In those circumstances the impugned order ought not to have been passed declaring him unfit to be correspondent permanantly. Above all he has also argued that Clause 7 of the Grant-in-aid Code is illegal and unconstitutional inasmuch as it purports to impose civil disability by departmental action without there being any legal sanction behind that clause. His last argument is that the grounds on which he nas bren found to be unfit, are non-existing in so far as there are no valid enforceable orders that would said to have been passed by the appellate authority. I think this writ petition should be allowed on each one of these grounds. The validity of the first argument depends upon the fact whether the petitioner has submitted explanation to the 1st show cause notice on 17-10-1978 as asserted by him. Although this explanation did not find a place in the impugned order I find that the petitioner has asserted that he made such an explanation at more than one place of his writ petition and in fact has raised that as one of the grounds in the writ petition against the validity of the impugned order. Strangely the Education Department has kept silent on this assertion. It neither affirmed nor denied the fact of the petitioner making an explanation. But in law, its silence is counted as admission of the fact undented. The respondent is put by law under a duty to specifically deny the assertion clearly made by the petitioner. Otherwise, failure to deny will be taken to be an admission within the meaning of order 12 C.P.C. I accordingly proceed on the basis that the petitioner did explain to the first show cause notice on 17-10-1978. On that basis I hold that the failure of the authorities to consider that explanation before passing the impugned order vitiated the entire proceedings. For this reason alone the impugned order is liable to be set aside. In the circumstances of the case, it should be noted that by the time the 2nd show cause notice has come to be given the teachers had been reinstated and the running of the B.A., and B.Com., classes has been resumed, the college is going on smoothly. From the order it does not appear that the authorities have paid any attention to this facts. This is not a case. where the authorities should think of exercising their power over their sub ordinate employees. Correspondent and the management of the college an not the Government servants. They are not subordinates to the Government. They are independent people. The Department should seek co operation from them and should not seek to enforce compulsion and coercion. But the fact that the Department had failed to consider the fact that the matters have been compromised and the institution is running alright shows that the department is acting more in exercise of its than in the interests of the institution. I consider this approach to be defective from the point of view of running of private educational institutions. The Departmeat should never forget that these institutions are not owned by the Goverment and should not be intimately controlled by the Government.

(3.) The impugned order suffers from a total lack of understanding ofthe tact that the so called orders of reinstatemant are non est and of no legal efficacy. The appellate authority under section 4 of the Act 11 of 1975 has not been invested by law with the power to make interim orders. It can only dispose of the appeals and ask for the compliance of such orders. It may be for good reason the legislature might have well thought that these bureaucratic interferences at every stage in the running of the colleges should not be encouraged. Whatever may be the reason for the omission of a provision conferring authority on the appellate body to make interim orders the fact is indisputable that the appellate authority is not clothed with the power to make interim orders. If the law has not given that power to the appellate authority there is no harm in treating its orders made without the legal sanction as so many scraps of paper. The entire proceedings are based upon, a regrettable failure on the part of the Department to notice that these reinstatement orders are no orders in the eye of law and that the petitioner committed no error in disregarding such orders. Compliance, following, and adhereing to the instructions issued by the Department of which latter part of clause 7 of the Grant-in-Aid speaks of must relate only to legal and valid instructions and cannot refer to everything written in the name of Government.