IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.18536 of 2014 BETWEEN M.L. Satyanaryana Reddy.
AND ... PETITIONER The Principal Secretary, Department of School Education, Government of A.P., Secretariat, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioner: MR. K. GANI REDDY Counsel for the Respondents: GP FOR SCHOOL EDUCATION (AP) MR. KRUPACHAND GOGINENI The Court made the following:
ORDER:
Heard learned counsel for the petitioner, learned Government Pleader for Education and Mr. B.V. Subbaiah, learned senior counsel, appearing for the fifth respondent - school.
2. Petitioner, who is Secretary and Correspondent of MVR Educational Society, has complained of inaction on the part of respondents 1 to 4 in permitting the fifth respondent – school to be set up and to function without any permission under the A.P. Education Act, 1982 and contrary to the Rules, framed under G.O.Ms.No.1 Education (P.S.2) Department dated 01.01.1994, titled as Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short ‘the Rules’).
3. Petitioner is running a school under the name and style Montessori English Medium High School at Tadepalligudem, West Godavari District for the last 13 years and is stated to have gained good reputation in and around the locality. Petitioner states that the fifth respondent – school was, however, established within a radius of 229 meters from the petitioner’s school contrary to the Rules aforesaid as well as without obtaining any permission or sanction from the competent authority under the Rules aforesaid. Petitioner, therefore, not only complains of unhealthy competition but also complains of violation of the Rules aforesaid but also that no action is taken by respondents 1 to 4 in spite of petitioner bringing the aforesaid aspects to their notice. The present writ petition is filed alleging inaction on the part of respondents 1 to 4.
4. When this writ petition came up for hearing on 04.07.2014, this Court while admitting the writ petition directed the fourth respondent to ensure that the fifth respondent will not start functioning before necessary permission is granted in its favour.
It appears that the Deputy Educational Officer, Machilipatnam reportedly sent instructions to the learned Government informing that he has visited the fifth respondent school on 26.12.2013 and found that 907 children are studying in the said school during academic session 2013-2014. This Court, therefore, took serious exception to the aforesaid aspect of 907 students studying in the fifth respondent school in spite of directions of this Court, referred to above and hence, on 02.09.2014 directed as follows:
“ … If the Deputy Educational Officer has visited the school blindfold, he may show cause as to why this Court shall not recommend to the State Government to dispense with his services immediately … “ Thereafter, the writ petition was listed on 10.09.2014 and adjourned at the request of the learned Government Pleader and thereafter, the writ petition is listed today.
5. Though no cause is shown by the Deputy Educational Officer, as on today, learned Government Pleader submits that the Government is seized off appropriate action to be taken against the Deputy Educational Officer in the light of the observations of this Court, recorded above.
6. Learned senior counsel appears for the fifth respondent, who has already filed vacate petition, being WVMP.No.2226 of 2014, together with documents seeking vacation of the order dated 04.07.2014, referred to above.
7. At this stage, I have heard all the learned counsel and with their consent, the writ petition itself is being disposed of by this order.
8. As mentioned above, the Rules, referred to above, deal with the manner in which application for establishing an educational institution is to be made. Rule 3 of the Rules prescribe the competent authorities, who are empowered to consider the application relating to particular category of schools and Rule 4 provides for criteria for establishment of schools. Rule 5 provides for requirements of establishing of a new school or up-gradation of the existing school. Rule 6 provides for the manner in which the application is to be made and the time stipulated therefor whereas Rule 7 deals with scrutiny and grant of permission.
9. Learned senior counsel for the fifth respondent submits that the fifth respondent’s application for opening of new school, made earlier, was found to be deficient in certain aspects and hence, a fresh application was made on 28.10.2013 duly complying with all the requirements under the Rules seeking permission for the academic year 2014-2015. Learned senior counsel contends that though the application is required to be disposed of within three months of making of such application, as required under Rule 7 of the Rules, the application is kept pending from 28.10.2013 and no orders are passed, though all the necessary reports are already available with the Government for consideration of the said application. Learned senior counsel also pointed out that Rule 8 of the Rules provides that permission granted or deemed to have granted under Rule 7 by the competent authority is valid only up to the end of July of every year. Based on the said opening words of Rule 8 of the Rules, learned senior counsel contends that since deemed permission is envisaged under the Rules, in the case of the fifth respondent also, since its application is pending from 28.10.2013 and since no orders are passed within three months of making the application, permission is deemed to have been granted as provided under the Rules. Therefore, learned senior counsel submits that the fifth respondent school bonafide believed and admitted the students and the same is reported by the Deputy Educational Officer, vide report dated 26.12.2013, when he visited the school on 21.12.2013.
10. I, however, find it difficult to accept the aforesaid submissions inasmuch as Rule 7 of the Rules, which deals with scrutiny and grant of permission, does not provide for any deemed permission and as such, the permission has to be expressly granted under Rule 7 of the Rules in order to establish an educational institution and to admit students therein. While it is true that Rule 8 uses the words ‘deemed permission’ but that again in turn relates to Rule 7 and since no such deemed permission is envisaged under Rule 7, this Court cannot supply casus omissus in the Rule and read something more in the Rule than what it contains. I am, therefore, clearly of the view that the permission under Rule 7 of the Rules has to be an express permission and cannot be a ‘deemed permission’ and on that ground, the fifth respondent school cannot justify admission of students and running of the school without any permission being granted to it. The order of this Court dated 04.07.2014, therefore, clearly directs the fourth respondent to ensure that the fifth respondent school does not start functioning before necessary permission is granted in its favour. I, therefore, see no reason to vacate the said order.
11. Further more, the instructions of the learned Government Pleader show that the application of the fifth respondent for grant of permission is pending with the competent authority and in spite of that, when the fifth respondent school management was running the school without any permission, they were asked to submit their explanation on running the school without obtaining permission and to close down the school by issuing various such notices, from time to time, from 2010 onwards, referred to in the instructions.
It is, however, stated that since 19.07.2014 the fifth respondent school is closed down and it was permitted to open only on receiving permission from the Government.
12. The aforesaid aspect is not contraverted by the learned senior counsel for the fifth respondent. Hence, in view of the fact that the fifth respondent school is no more functioning, the grievance of the petitioner in the writ petition to that extent stands redressed.
13. So far as application of the fifth respondent school, stated to be pending with the competent authority from 28.10.2013, is concerned, the same is required to be considered and disposed of, in accordance with law, expeditiously. So far as the action of the Deputy Educational Officer is concerned, this Court has already passed orders dated 02.09.2014, extracted above, however, no cause is shown before this Court and since the first respondent Government is stated to be seized off appropriate action against the said Officer, I deem it appropriate to leave it for the first respondent Government to consider the matter and take appropriate action as it deems fit and proper.
The writ petition is disposed of with the following directions:
1. The first respondent shall consider the application of the fifth respondent dated 28.10.2013 seeking permission under Rule 7 of the Rules, referred to above and after taking into consideration all the attending circumstances, take appropriate reasoned decision in the matter expeditiously and in any case, before end of October 2014.
2. The first respondent shall also ensure that the fifth respondent school does not start functioning without appropriate orders being passed with regard to permission, as above and as required.
As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J October 7, 2014 DSK