* HONBLE Dr. JUSTICE K.G.

SHANKAR
+ Writ Petition No.25526 of 1999
and
Writ Petition No.13945 of 2006
% 12-12-2013
# K.Chandrasekhara Rao
Petitioner
Vs.
$ Hyderabad Regional Conference of
The Methodist Church in India, Hyderabad,
Rep. by its Chairman, Chappel Road,
Nampally, Hyderabad;
and others
Respondents

! Counsel for the petitioner:

Dr. P.B.Vijaya Kumar

^ Counsel for respondents 1&2: Sri P.Veera Reddy

Counsel for respondents 3 to 5: Government Pleader for
Higher Education
<Gist :

>Head Note:

? Cases referred:
1. AIR 1987 SC 311
2. 2006 (2) ALD 251
3. 1991 (3) ALT 335
4. 1995 (2) An.W.R. 146
5. 1996 (3) ALD 8
HONBLE Dr. JUSTICE K.G.SHANKAR
Writ Petition No.25526 of 1999
and
Writ Petition No.13945 of 2006
Date: 12-12-2013

W.P.No.25526 of 1999:
Between
K.Chandrasekhara Rao
Petitioner
and
Hyderabad Regional Conference of
The Methodist Church in India,
Hyderabad,
Rep. by its Chairman,
Chappel Road, Nampally, Hyderabad;
and 2 others
Respondents

W.P.No.13945 of 2006:
Between
Dr. K.Chandrasekhara Rao
Petitioner

and
Managing Committee,
Hyderabad Regional Conference,
Methodist Church of India,
Rep. by its Chairperson,
Hyderabad-500 001;
and 4 others
Respondents

HONBLE Dr. JUSTICE K.G.SHANKAR

Writ Petition No.25526 of 1999
and
Writ Petition No.13945 of 2006
Common Order:
These two writ petitions are disposed of through the
common judgment. The writ petitioner is common in both
the cases.

Methodist Degree College, Hyderabad,

represented by its Manager and Correspondent, is the

2nd respondent in both the writ petitions. The Methodist
Church is the 1st respondent. In W.P.No.25526 of 1999,
which shall be referred to as the former writ petition
hereinafter,

Commissioner,

Collegiate

Education

of

Andhra Pradesh is the 3rd respondent. The Director of

Higher Education, Government of Andhra Pradesh and
the Regional Provident Fund Commissioner, Hyderabad,
are respondents 4 and 5 in W.P.No.13945 of 2006, which
shall be referred to as the latter writ petition hereinafter.
2. In the former writ petition, the petitioner initially

claimed for a direction to extend Revised Pay Scales of

1999 to him. It would appear that the Revised Pay Scales
were implemented to the petitioner subsequent to the filing
of the writ petition. The writ petitioner amended the prayer
through orders dated 20-01-2011 in W.P.M.P.No.28773 of
2010 seeking for extending Revised Pay Scales from time
to time including the Revised Pay Scales of 2004 and
2009. In the latter writ petition, the orders dated 06-72006 retrenching the petitioner are questioned.

Dr.

P.B.Vijaya Kumar, learned counsel for the petitioner,

contended that the retrenchment of the petitioner through
orders dated 06-7-2006 is liable to be set aside and the
Revised Pay Scales of 2004 and 2009 are liable to be
implemented to the petitioner.
3. The petitioner was appointed in 1997-98 as
temporary Lecturer on hourly basis. On 02-7-1998,
he was appointed temporarily for the academic year 199899. While things stood thus, on 21-7-1998, the
2nd respondent-College issued a Notification to fill up the
posts of regular Lecturers.

The petitioner applied in

response to the Notification. He was called for

interview to appear before the Board on 04-9-1998.
On 11-01-1999, the petitioner was appointed and was put
on probation for a period of 3 years. It is the case of the
petitioner

that

Osmania

University

approved

the

appointment of the petitioner as a regular candidate

through proceedings dated 22-9-1999. Rule 7(4) of the

Andhra Pradesh Educational Institutions (Establishment,

Recognition, Administration and Control of Institutions of
Higher Education) Rules, 1987 (1987 Rules, for short)
passed through G.O.Ms.No.29, Education (Rules), dated
05-02-1987, reads:
( 4 ) Payment of salaries to staff:

The educational

agency of any private institution shall pay salaries to its

staff as per the Government scales of pay and by
following such procedure as may be prescribed by
Government from time to time, in this regard.

On the basis of Rule 7(4) of 1987 Rules, the

petitioner claims that he is entitled to the Revised Pay
Scales of 2004 and 2009.
4. Separate Rules were issued in respect of Minority
Educational Institutions called the Andhra Pradesh
Minority

Educational

Institutions

(Establishment,

Recognition and Regulation) Rules, 1988 (1988 Rules, for

short) issued through G.O.Ms.No.526, Education (Rules),
dated 21-12-1988. Rule 8(3) of 1988 Rules reads:
(3) The staff appointed shall be paid salaries at the rates
prescribed and by following the procedure prescribed by
the competent authorities from time to time.

The Rule did not adumbrate that salary to the staff in

a private institution shall be on par with the Government
scales of pay.

Rule 8(3) of 1988 Rules merely

contemplates that the salaries of Minority Educational

Institutions shall be at the rates prescribed and shall be
paid following the procedure prescribed by the competent

authority from time to time.

5. G.O.Ms.No.1, Education (P.S.2), dated
01-01-1994, created The Andhra Pradesh Educational
Institutions (Establishment, Recognition, Administration
and Control of Schools under Private Managements)
Rules, 1993 (1993 Rules, for short). 1993 Rules, from the
very

title

are

with

reference

to

the

control

and

administration of Schools and not Colleges or Junior

Colleges. The preamble of 1993 Rules reads that the
Rules were framed in supersession of various Rules
including 1988 Rules issued through G.O.Ms.No.526,
dated 21-12-1988, so far as Schools are concerned.
In other words, 1993 Rules did not supersede 1988 Rules
so far as the Degree Colleges and Junior Colleges are
concerned. It is the contention of the learned counsel for
the petitioner that 1993 Rules are applicable to Schools
whereas 1988 Rules were applicable to all Minority
Educational Institutions. In view of the preamble of
1993 Rules, it is evident that 1993 Rules superseded
1988 Rules so far as the Schools are concerned.
Consequently, after 1993 Rules came into force, the
Minority Educational Institutions other than the Schools
are

governed

by

1988

Rules

whereas

Minority

Educational Institutions so far as Schools are concerned

are governed by 1993 Rules.
6. In Frank Authority P.S.E. Assocn. v. Union of

India

[1]
, with reference to Delhi School Education Act,

1973, it was observed that the requirement under Section

10 of the Delhi School Education Act that scales of pay
and allowances of employees of recognized private
schools shall not be less than the employees of schools
run by appropriate Authority does not infringe Article 30(1)
of the Constitution of India.
7. In M.D.Soujanya v. S.V.V.P.V.M.C. Mahila Vidya
Peeth

[2]
, a learned single Judge of this Court held that

Rule 7(4) of 1987 Rules was made in public interest and

based on public policy and that the same cannot be
waived. The decision in this case was questioned in Writ
Appeal No.930 of 2006. The Division Bench agreed with
the view expressed by the learned single Judge and held
that whether the State extends financial assistance to the
private educational institutions or does not so extend, the
managements of the private educational institutions are
not relieved of their obligation to pay proper salary and
other benefits contemplated by law.
8. Later, in W.P.No.19832 of 1999, another learned
single Judge of this Court once again held that the
employee of a private unaided college is entitled to be
paid the scales prescribed by the Government on par with
the Government Degree College Lecturers.
9. On the basis of those decisions, the learned

counsel for the petitioner contended that the former writ

petition may be allowed.
10. Sri P.Veera Reddy, learned counsel for the
2nd respondent-College being the employer of the
petitioner, did not question the application of 1988 Rules
to the Minority Educational Institutions. He did not even
claim that 1993 Rules superseded 1988 Rules so far as
the 2nd respondent-College is concerned. He, however,
submitted that under Rule 8 of 1988 Rules, the
appointment of teaching and non-teaching staff in Minority
Educational Institutions shall be made by
a

Staff

Selection

Committee

constituted

by

the

Representative of the Competent Authority and that the

candidates sponsored by Employment Exchange alone
shall be eligible for selection by the Staff Selection
Committee. He pointed out that Rule 8 of 1988 Rules
envisages that in the event the Employment Exchange is
not able to sponsor suitable candidates, the concerned
Educational

Institution

may

advertise

calling

for

applications from the candidates possessing requisite

qualifications. He contended that the petitioner was not
sponsored by the Employment Exchange and that the
very appointment of the petitioner was not in accordance
with Rule 8 of 1988 Rules.
11. It may be recalled that the petitioner has not
forced himself upon the 2nd respondent-College.

In response to a Notification dated 21-7-1998, the

petitioner was called to interview and was interviewed on
04-9-1998. He was subsequently appointed and was put
on probation with effect from 11-01-1999. I am afraid that
the 2nd respondent-College and the 1st respondentManagement cannot take advantage of their own lapse in
not calling candidates from the Employment Exchange
and deny the benefits to the petitioner.
12. The learned counsel for the respondents 1 and 2
submitted that the respondents 1 and 2 never intended to
appoint the petitioner as a permanent candidate,
so much so, they did not follow the preliminary part of Rule
8 of 1988 Rules. I am afraid that the respondents 1 and 2
are trying to approbate and reprobate at one and the
same time. Having appointed the petitioner as
a Lecturer and having put the petitioner on probation for a
period of 3 years, it would not lie in the mouths of the
respondents 1 and 2 that they never intended to appoint
the petitioner on a permanent basis. The contention of
the respondents 1 and 2 that the petitioner was not
appointed in accordance with the Rules and Regulations
and that the petitioner was not appointed on permanent
basis, so much so, Rule 8(3) of 1988 Rules would not
apply to the petitioner, therefore, cannot be accepted and
is accordingly rejected.
13. As an alternative defence, the learned counsel

for the respondents 1 and 2 contended that the salaries

have not been prescribed so far by the competent
Authority and that the petitioner consequently cannot seek
for the scale on par with other Government Lecturers. As
long as no scale is specially provided for the teaching and
non-teaching staff of the Minority Educational Institutions,
it has to be assumed that they are entitled to the same
Scale of Pay as the teaching and
non-teaching staff of other Government Institutions.
Consequently, the relief that the petitioner seeks through
the 1st writ petition deserves to be granted directing the
respondents to implement Revised Scales of Pay to the
petitioner as and when such Scales come into force.
14. So far as the 2nd writ petition is concerned, the
petitioner passed NET and SLET and also holds Ph.D. in
Telugu. However, recording that there was no sufficient
workload,

the

petitioner

was

proceedings dated 06-7-2006.

retrenched

through

Interim orders were

passed by this Court on 08-7-2006 suspending the order

of retrenchment. The petitioner consequently has been
continuing in service.
15. It is contended by the learned counsel for the
petitioner that the order of retrenchment was passed
without prior approval under Section 83 of the Education
Act, 1982 (the Act, for short).

Section 83 of the Act

dealing with the retrenchment of employees reads:

Where retrenchment of any employee is rendered

necessary by the management or competent authority
consequent on any change relating to education or
course of instruction or to any other matter, such
retrenchment may be, effected with the prior approval of
the competent authority or the next higher authority, as
the case may be.

16. Such retrenchment, as already noticed, under

Section 83 of the Act is with the approval of the competent
Authority or the next higher Authority, as the case may
be. Section 79 of the Act dealing with dismissal, removal
or reduction in rank or suspension of the employees of
private institutions, however, has no application as this is
not a case of dismissal, removal or reduction in rank nor is
it a case of suspension.
17. The 1st question in this context is whether
a Writ would lie against a private educational institution. In
Vasavi College of Engineering vs. A.Suryanarayana

[3]
,

a Division Bench of this Court observed that a writ petition

is maintainable against recognized private educational
institutions whether such institutions were admitted to
grant-in-aid or otherwise. The Division Bench opined that
a teacher of such an institution could seek appropriate
remedy through a writ petition.

Therefore, there is no

doubt that these writ petitions against the 1st and the 2nd
respondents are maintainable.
18. Regarding the condition envisaged by Section

83 of the Act that prior approval of the competent Authority

is needed to retrench an employee, it was held in
E.UDDANDA
COLLEGE

[4]

RAMAIAH

vs.

V.R.S.

AND

Y.R.N.

that prior approval of the competent

Authority is a condition precedent for terminating the

services of regular or temporary employees.
[5]
19. In R.Akkulaiah v. Government of A.P. , the
services of a teacher working in an unaided section were
terminated when the section has been closed down by
the management. The Regional Joint Director of School
Education set aside the termination order as prior
approval was not obtained from the competent Authority
for such termination.

The view of the Regional Joint

Director was confirmed by the High Court holding that in

view of Section 83 of the Act, retrenchment/termination of
the services of a teacher can be with the prior approval of
the competent Authority only.
20. In W.P.No.14093 of 1999, a learned single
Judge of this Court passed orders on 17-4-2008 that the
termination of the services of a Junior Lecturer in Civics
without following the procedure required under Sections
79 or 83 of the Act is arbitrary and illegal. This order was
confirmed by a Division Bench of this Court through
orders dated 17-7-2008 in W.A.No.723 of 2008.
21. The learned counsel for the petitioner pointed

out that the 2nd respondent-College, in fact, approached

the competent Authority for permission and failed to obtain
permission from the competent Authority.
The 2nd respondent-College herein filed W.P.No.16229 of
2008 seeking a direction to the competent Authority to
grant approval for the retrenchment of the petitioner
herein. The writ petition was disposed of directing the
competent Authority to consider the representation of the
2nd respondent-College herein to accord approval.
The 2nd respondent-College, however, was not granted
any approval to retrench the petitioner.

The learned

counsel for the petitioner, in this background considered

that the retrenchment of the petitioner is in violation of
Section 83 of the Act and is not permitted.
22. The learned counsel for the respondents 1 and 2
pointed out that there was no vengeance on the part of
the respondents 1 and 2 to victimize the petitioner.
He submitted that the petitioner was a Lecturer in Telugu
and that there was no student ready to take Telugu as
a subject, so much so, there is no need to continue the
petitioner as a Lecturer in Telugu. He pointed out that no
one was appointed by the management in the place of the
petitioner as a Lecturer. He also submitted that during the
period of probation, commencing from
11-01-1999, the petitioner could be removed without prior
Notice. He also pointed out that Osmania University did

not approve the appointment of the petitioner but merely

noted the appointments of various Lecturers including the
petitioner. The proceedings of Osmania University dated
22-9-1999 noting the appointments of various teaching
staff including the petitioner were in response to the letter
of the Principal of the College dated 15-6-1999.

The

respondents 1 and 2 cannot now contend that Osmania

University did not approve the appointments and that the
services of the petitioner therefore are liable to be
terminated.
23. The learned counsel for the respondents 1 and 2
also contended that the petitioner did not avail alternative
remedy and that he, therefore, is not entitled to seek the
relief through a writ petition. He referred to Section 80 of
the Act, which provides appeal from an order of
punishment imposed by a private management against its
employee. Section 81 of the Act provides for an appeal to
Government. Section 89 of the Act is
a general provision of appeal. Section 90 of the Act deals
with revision to Government.

It is contended that the

petitioner, who did not avail alternative remedy, cannot

invoke the writ jurisdiction. The learned counsel for the
respondents 1 and 2 contended that the respondents 1
and 2-Institutes are unaided minority institutes.
Be that as it may, when the 1st respondent-Management
did not follow Section 83 of the Act, the respondents
cannot insist that the petitioner ought to have preferred

alternative relief.

Further, admittedly the unofficial

respondents did not pass orders under Section 79(1)

proviso but passed orders under Section 83 of the Act by
retrenching the services of the petitioner. Consequently,
Section 83 of the Act and the decisions referred to
squarely apply to the facts of the case. The retrenchment
of the petitioner is violative of Section 83 of the Act; the
petitioner therefore is entitled to seek for reinstatement.
24. However, whether the petitioner is entitled to
back wages is a question that is to be considered.
In R.Akkulaiah (5 supra), it was observed that
a retrenched teacher would be entitled to back wages if
he could establish that he was not gainfully employed
elsewhere during the period he was out of service.
The respondents claimed that the petitioner was gainfully
employed during the period he was out of service.
The question of the petitioner being not entitled to back
wages does not arise since the petitioner obtained interim
directions and continued to be in service. Consequently,
the

question

of back

wages

does

not arise

for

consideration in this case.

25. Accordingly, both the writ petitions are allowed.
The respondents are directed to implement the Pay
Scales of 2004 and 2009 and subsequent Pay Scales,
if any, to the petitioner together with arrears.
The retrenchment of the petitioner through orders dated

06-7-2006 is set aside.

As the petitioner has been

continuing in service, he is entitled to wages during the

period of his employment. If the respondents 1 and 2 did
not extract work from him, it was at their peril only.
Consequently, the impugned retrenchment order in the
2nd writ petition is set aside. The writ petitioner is entitled
to wages during the period he continued to be in service, if
not paid already. The arrears and wages shall be cleared
within 8 (eight) weeks from the date of receipt of a copy of
this order. No special orders are passed regarding the
reinstatement of the petitioner since the retrenchment of
the petitioner was stayed through an interim order leading
to the continuation of the petitioner in service.

No

costs.
_____________________
Dr. K.G.SHANKAR, J.
12th December, 2013.
Ak
Note:L.R. Copy to be marked.
(B/o)
Ak

HONBLE Dr. JUSTICE K.G.SHANKAR

Writ Petition No.25526 of 1999

and
Writ Petition No.13945 of 2006
(Common Order)

12th December, 2013.

(Ak)

[1]
[2]
[3]
[4]
[5]

AIR 1987 SC 311

2006 (2) ALD 251
1991 (3) ALT 335
1995 (2) An.W.R. 146
1996 (3) ALD 8