Kommu David v. The State of Andhra Pradesh

Proceedings of the second respondent dated 02-06-1995, whereunder orders were passed, relying on the order of the Government in Memo No.668/P.S-1/95-3 dated 18-05-1995 and in view of the interim orders of this Court in W.P.M.P.No.6907 of 1995 in W.P.No.5578 of 1995 dated 27-03-1995, informing the petitioner that there were no grounds on which his case could be considered for reinstatement and payment of salary and that the same was rejected, is impugned in this writ petition as arbitrary and illegal.

Brief facts, to the extent necessary for this writ petition, are that the petitioner was appointed in the 5th respondent school as a Secondary Grade Teacher on 18-06-1956. Petitioner would contend that the 5th respondent prevented him from attending school and discharging his duties from 13-06- 1974 onwards, without issuing any order of termination. Petitioner’s grievance initially was that, despite a report sent by the District Educational Officer, Prakasham District, vide proceedings in RC.No.1374/C2/85 dated 07-02-1995, the first and second respondents did not finalise action relating to his reinstatement. Pursuant to the interim orders of this Court, the impugned order dated 02-06-1995 was passed by the second respondent. The petitioner filed W.P.M.P.No.6239 of 1996 seeking amendment of the prayer to include a challenge to the proceedings dated 02-06-1995.

Aggrieved by the action of the 5th respondent, in not permitting him to join duty even after the school reopened on 13-06-1974, the petitioner filed W.P.No.2532 of 1975 before this Court questioning his unauthorized removal from service. This Court, by order dated 21-04-1976, dismissed the writ petition holding that the disputed questions of facts, which arose in the case, could not be decided in writ proceedings. The writ petition was dismissed leaving it open to the petitioner to have these issues decided either by the authorities of the Education Department, or if the petitioner was so advised, by filing a civil suit. Consequent upon dismissal of the writ petition, the petitioner filed O.S.No.24 of 1980 on the file of the Sub-Court, Markapur. The learned Sub-ordinate Judge, by judgment and decree dated 30-03-1981, dismissed the suit holding that the subject matter of the suit could not be agitated in a civil suit. The petitioner preferred an appeal to this Court in A.S.No.1630 of 1981 which also came to be dismissed, by a Division Bench, by order dated 17-06-1982. The special leave petition preferred against the said order was dismissed by the Supreme Court on 22-01-1985.

Thereafter, the petitioner filed a detailed representation to the Government seeking intervention. Entertaining petitioner’s representation the Government, vide proceedings dated 21-09-1989, directed the Director of School Education to enquire into the matter and send a compliance report. The Director of School Education in turn, vide its memo dated 16-10-1989, requested the Regional Joint Director of School Education, Guntur, to have an enquiry conducted into the matter. The Regional Joint Director of School Education, Guntur, in turn, entrusted the task of holding an enquiry to the District Educational Officer, Prakasham District, Ongole, who in turn directed the Deputy Educational Officer, Markapur, to hold an enquiry and to submit a detailed report. On 25-07-1990, the Deputy Educational Officer, Markapur, served notices on the petitioner and the management of the school to participate in the enquiry on 08-08-1990 in the school premises in order to ascertain the true and correct facts.

1995. Petitioner would contend that, while the Director of School Education had the idea of reinstating the petitioner against any of the posts of Secondary Grade Teacher in a needy school, in view of the fact that the 5th respondent- school management had filled up the vacancy caused due to his termination,

appointing another teacher by name Sri M.Pulla Reddy, the issue was not decided one way or the other.

As stated above, pursuant to the interim order of this Court, the impugned order dated 02-06-1995 was passed by the second respondent. Petitioner would contend that the proceedings, in R.C.No.404/B2-1/88 dated 02- 06-1995, were issued under the purported orders of the Government in memo dated 18-05-1995, which proceedings were not communicated to the petitioner. Petitioner would contend that his claim for reinstatement and payment of salary was rejected on untenable grounds including that the incident had taken place 21 years ago. Petitioner would submit that he cannot be deprived of reinstatement and payment of his salary on the ground of latches since he had been continuously pursuing one remedy after the other. Petitioner would submit that the other ground, of rejection of his claim for reinstatement, was that the Civil Court had examined witnesses produced by the management of the school who had given statements that the petitioner had not attended the school on 13- 06-1974. Petitioner would contend that since the said suit in O.S.No.24 of 1980 was dismissed on the ground of lack of jurisdiction and that the petitioner ought to have established his allegations before the competent authority in view of Section 16 of the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975, any findings on other issues recorded by the Civil Court was null and void and could not form the basis for taking action against him. Petitioner would submit that an order or judgment, of a Court lacking jurisdiction, is null and void and since the impugned proceedings dated 02-06- 1995 were based on the findings of the Civil Court, which did not have jurisdiction to try the suit, the impugned proceedings dated 02-06-1995 were also liable to be set aside. Petitioner would rely on the report of the Principal, District Educational Training Institute, Minampadu, Prakasham District, wherein it was held that there was no misconduct on his part. Petitioner would also rely on the proceedings of the Director of School Education dated 04-05-1995 wherein certain findings were recorded in his favour.

In the counter-affidavit, filed on behalf of the respondents, by the then Joint Director (Elementary Education), it is stated that the aided elementary school, Oddulavagupalli, had reopened after summer vacation on 13-06-1974 for the next academic year 1974-75, that the petitioner did not attend the school on the reopening day and subsequently from 13-06-1974 onwards and that this fact was confirmed by the Subordinate Judge, Markapur, in his judgment in O.S.No.24 of 1980 dated 30-03-1981. Reference is also made to W.P.No.2532 of 1975 which was dismissed by this Court on 21-04-1976 holding that disputed questions of fact could not be adjudicated in writ proceedings. Respondents would also refer to O.S.No.24 of 1980 filed by the petitioner before the Subordinate Court, Markapur, which was also dismissed on 30-03-1981 holding that the Court had no jurisdiction to deal with departmental matters.

5.

No evidences have been produced on the behaviour of Sri K.David, former, S.G.Assist. of A.U.P.School, Oddulavagupalli. No evidence has been produced with reference to the removal of Sri K.David from Service. It appears that due to misunderstandings between the two individuals viz., Sri K.David, S.G.Asst. and the manager of the School, these things happened. There has been no evidence produced fully because the things relating to the enquiry pertains to very long back period. No evidence has been produced with regard to the action taken by the management against Sri K.David for his absence in attending to the School.

This enquiry report was submitted to the government on 04-05-1995 with a request that necessary orders be issued in the matter. In the meanwhile this Court, by order in W.P.M.P.No.6907 of 1995 in W.P.No.5578 of 1995 dated 27- 03-1995, directed the respondents to finalise the action relating to the petitioner’s reinstatement.

The government, in its memo dated 18-05-1995, while remitting the matter back to the Director of School Education requested that necessary orders be passed on the report of the District Educational Officer in his letter dated 07-02-1995 keeping in view the interim orders of this Court in W.P.M.P.No.6907 of 1995 in W.P.No.5578 of 1995 dated 27-03-1995. It is stated that in view of the orders of the government, in memo dated 18-05- 1995, the case of the petitioner was carefully examined and it was observed that pursuant to the petitioner having absconded from service from 13-06-1974 the management of the school had appointed Sri U.Pulla Reddy in his place from 17-11-1974 and that the department had also approved his appointment and was releasing salaries regularly. The Government, in its memo dated 18- 05-1995, referred to the order of this Court in A.S.No.1630 of 1981 wherein it was observed that the witnesses produced by the management of the school had given statements before the trial Court that the petitioner had not attended school on 13-06-1974.

Reference is also made to the finding recorded by this Court that the petitioner had not produced any evidence regarding his attending school on 13-06-1974 and that, on the representation of the petitioner on 14-06- 1974, the Deputy Inspector of Schools had enquired into the matter and had informed that the petitioner had not attended the school on 13-06-1974 and subsequently. The appeal preferred by the petitioner in A.S.No.1630 of 1981 was dismissed by this Court. The government observed that since the petitioner had absconded from service and as Sri U.Pulla Reddy, appointed in his place by the Management, was continuing in service from 17-11-1974, the petitioner must be deemed to have been removed from service because of his continuous absconding from service and negligence in discharging his duties. The government observed that, after loosing cases in all Courts, the petitioner had approached the government seeking reinstatement of his service during 1990, that the incident had taken place 21 years ago between the management and the petitioner, that the department/Government was not responsible, that it was not appropriate to interfere in the case at this stage and that it was not possible to direct that the petitioner be reinstated in service.

It is also stated in the Government memo that the question of payment of salaries by the department/Government did not arise, as there was no liability on the part of the department/Government. In view of the orders of the Government, in its memo dated 18-05-1995, and in view of the interim orders of this Court in W.P.M.P.No.6907 of 1995 in W.P.No.5578 of 1995 dated 27-03-1995, the petitioner was informed by the Director, in his proceedings dated 02-06-1995, that there was no ground on which the case of the petitioner could be considered for reinstatement or for payment of salary, and hence, the same was rejected.

Sri K.G.Krishna Murthy, learned counsel for the petitioner, would refer to the provisions of the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975, (Act 11 of 1975), prior to its repeal by Section 101 (e) of the Andhra Pradesh Education Act, 1982, more particularly to Section 3 thereof, to contend that no teacher employed in any private Educational Institution could be dismissed, removed or reduced in rank or his service otherwise terminated except with the prior approval of the competent authority. Learned counsel would submit that this provision, under Act 11 of 1975, was analogous to Section 79 of the A.P. Education Act. Learned counsel would refer to the A.P. (Integrated) Educational Rules, 1966, issued in G.O.Ms.No.1188, Edn., dated 10-05-1966, more particularly to Rule 56 thereof, which relates to conditions of service of teachers under private managements.

With regards the conclusions reached by the Director of School Education, on the basis of the observations of this Court in A.S.No.1630 of 1981 to the effect that the petitioner had not attended School on 13-06-1974, learned counsel would contend that A.S.No.1630 of 1981 was an appeal preferred by the petitioner against the order of the Subordinate Court, Markapur, in O.S.No.24 of 1980, seeking reinstatement into service and since Subordinate Court, by order dated 30-03-1981, had dismissed the suit holding that it did not have jurisdiction to adjudicate these issues, any observations made by the Subordinate Court in its judgment dated 30-03-1981 or by this Court in appeal in A.S.No.1630 of 1981, cannot be relied upon, since it is well settled that an order of a Court without jurisdiction is a nullity and any observations made therein are required to be ignored. Learned counsel would reliance on A.P.S.T.Employees Association v. A.P.Bhanjdev, Annamreddi Bodayya and another v. Lokanarapu Ramaswamy and Chandrakant Tukaram Nikam and others v. Municipal Corporation of Ahmedabad and another.

Learned Government Pleader for Education, on the other hand, would seek to justify the order of the Director of School Education and contend that the Director had passed the order independently and not at the behest of the Government. Learned Government Pleader would submit that while the Subordinate Court, in O.S.No.24 of 1980, had dismissed the suit on the ground of lack of jurisdiction, the petitioner had chosen to prefer an appeal against the said order in A.S.No.1630 of 1981 and in as much as this Court had entertained the appeal and had passed orders thereon on merits, the findings recorded therein, a judgment inter-parties, is binding on the petitioner. Learned Government Pleader would submit that since the appellate order is not one passed without jurisdiction, the findings recorded therein cannot be treated as a nullity. Learned Government Pleader would submit that while the order of the Subordinate Court, in O.S.No.24 of 1980, was confirmed by this Court in appeal in A.S.No.1630 of 1981, it was not on the ground of lack of jurisdiction but on merits, and the findings recorded by this Court, in its order in A.S.No.1630 of 1981, is binding on the petitioner.

I am not inclined to non-suit the petitioner on the ground of laches. As is clear from the averments referred to above, ever since 13-06-1974 when he was allegedly not permitted to join duty, the petitioner has been pursuing one remedy after the other. Initially he approached this Court by filing W.P.No.2532 of 1975. On the said writ petition being dismissed, the petitioner filed O.S.No.205 of 1977 before the Sub-Court, Ongole which, on transfer to the Sub-Court at Markapur, was re-numbered as O.S.No.24 of 1980. On the said suit being dismissed, the petitioner herein preferred an appeal in A.S.No.1630 of 1981 before this Court, and on the appeal being dismissed, special leave petition was filed before the Supreme Court. Soon after the special leave petition was dismissed, the petitioner started making representations to the Government, which resulted in an enquiry officer being appointed. The appointment of the said enquiry officer was challenged by the 5th respondent in W.P.No.13319 of 1990 which was dismissed on 17-09-1990. W.A.No.1166 of 1990 preferred thereagainst by the 5th respondent, also came to be dismissed by order dated 01-08-1994. Soon thereafter the impugned order dated 02-06- 1995 came to be passed. As such the plea of laches is required to be rejected.

On the question as to whether the findings recorded by the trial Court in O.S.No.24 of 1980 and of the Division Bench of this Court in A.S.No.1630 of 1981 is binding on the petitioner herein, it is necessary to note the findings of the trial Court in its order in O.S.No.24 of 1980. The trial Court held that except for the evidence of the petitioner in respect of his attendance, there was no evidence to establish that he had attended the school on 13-06-1974, that he was prevented from signing the attendance register, that he had attended the school everyday upto 25-06-1974 and that he had also attended central classes o n 15-06-1974. The Sub-Court took note of the fact that the wife of the petitioner herein was also working in the school and she was also not examined in support of the plea that the petitioner had attended central classes on 15-06-

1974. The learned Subordinate Judge held that the petitioner had neither established his allegations of having attended the school on 13-06-1974 either by approaching the educational authorities nor was he successful in proving the same before it and his bare evidence that he was prevented from signing the attendance register in support of his presence could not be believed. The learned Judge, referred to Section 16 of the A.P. Recognised Private Educational Institutions (Control) Act, 1975, which provides that no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in the Act. Under Section 3 thereof, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his employment be terminated except by the prior approval of the competent authority. The learned Subordinate Judge held that in view of Section 16 of the A.P.Recognised Private Educational Institutions (Control) Act, 1975, the Court had no jurisdiction and as such the plaintiff was not entitled for a declaration and the mandatory injunction as prayed for and that the subject matter could not be agitated in a civil suit. 1 2 . Sri K.G.Krishnamurthy, learned counsel for the petitioner, would contend that inasmuch as the Civil Court had held that it had no jurisdiction to try the suit, any findings recorded by a Court, which lacks jurisdiction, is a nullity and is required to be ignored.

In A.P.Bhanjdev1, a full bench of this Court held thus:

……It is axiomatic that a decree passed by a Court without jurisdiction is nullity. The same does not operate as res judicata nor does it bind the parties thereto or parties claiming through such a suit. A decree, which is nullity, does not confer right. In KIRAN SINGH v. CHAMAN any enforceable PASWAN (AIR 1954 SC 340) the apex Court observed: …what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section 11 of the Suits Valuation Act is that position. It is a fundamental principle well- established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties… (emphasis supplied) The above judgment was referred in M.C.SETHI v. R.P.KAPOOR (AIR 1972 SC 2379 and A.R.ANULAY v. R.S.NAYAK (AIR 1988 SC 1531)

In Annamreddi Bodayya2, the Supreme Court held thus:

……The High Court was in error in holding that the Civil Court had jurisdiction to entertain the suits. It may be noted that the law in this behalf has been set right apart from the decisions of this Court by the decisions of the larger beach of the same High Court If the trial Court had no jurisdiction to entertain the suits the first appellate Court was right in directing that the plaints be returned for presentation to the proper Court.…..

Similar view was taken by the Supreme Court in Chandrakant Tukaram Nikam3. 1 5 . The question as to whether an order passed by a Court which inherently lacks jurisdiction is a nullity, or whether it would remain in force, till a declaration in this regard is made by a competent Court, need not be gone into, since the petitioner himself preferred an appeal against the order of the Subordinate Court, Markapur, in O.S.No.24 of 1980 in A.S.No.1630 of 1981 before this Court.

I find considerable force in the contention of the learned Government Pleader that the findings recorded by the Division Bench of this Court, a judgment inter-parties, is binding on the petitioner herein and since the appeal was decided on merits and not on the ground that the Civil Court lacked jurisdiction to try the suit, the findings are binding on the petitioner and cannot be considered to be a nullity. The contention of the learned Government Pleader, that since the 5th respondent school, consequent to the petitioner not attending duty from 13-06-1974, had appointed another teacher by name Sri U. Pulla Reddy in his place which post was provided grant-in-aid, the Government could not be asked to provide aid to a single post twice over, merits acceptance. Whatever may be the dispute between the petitioner and the 5th respondent school with regards his termination or voluntary absence, the fact remains that the grant-in-aid, which the Government released, is in the nature of financial assistance. Having provided financial assistance to the said post held by Sri U. Pulla Reddy, which was earlier held by the petitioner herein, the Government cannot be mulcted with financial liability and be directed to pay arrears of salary even if the contention of the petitioner, that he was illegally terminated from service, were to be upheld.

It is also relevant to note that the Subordinate Judge, Markapur, in O.S.No.24 of 1980 had held that the Civil Court had no jurisdiction to try the suit in view of the embargo under Section 16 of the A.P.Recognised Private Educational Institutions (Control) Act, 1975, which Act came into force after 13- 06-1974 when the petitioner is alleged to have abandoned service and even after Sri U.Pulla Reddy was appointed in his place on 17-11-1974. The question as to whether the provisions of the Act could have been made applicable to the petitioner has not been considered. Further under the second proviso of Rule 56 (iii) (b) and Rule 56 (iii) (f) of the A.P. (Integrated) Education Rules, 1966, issued in G.O.Ms.No.1188 dated 10-05-1966, before terminating the services of a teacher the school management is required to consult and obtain approval of the competent authority in writing and the consequences of approval not being granted is that the teacher is liable to be reinstated and salary paid for the period of his unemployment.

The impugned order dated 02-06-1995 was passed in view of the orders of the Government in Memo dated 18-05-1995 and, as stated above, the Government in its memo dated 18-05-1995 had held as under:

……When Sri David has lost his appeals in the courts, the D.E.O., Prakasam District would not have entertained the appeal of Sri David. As the enquiry relates to an incident which took place about twenty one years back, the enquiry officer has also reported that a detailed evidences have not been produced. Having lost the court cases during 1980, Sri David again re-opened the case during 1 9 9 0 . The Dept., also would have rejected any representation of Sri David. As such there is no liability on the part of Department/Government to reinstate Sri David into service and payment of salaries. While intimating the above position, the D.S.E., may be requested to issue necessary orders on the report of the D.E.O., Prakasam District in Rc.No.1374/C2/85, dated 7- 2-95.

(emphasis supplied)

Since the Government had, in effect, directed the Director of School Education to reject the appeal filed by the petitioner and, following the said Government memo, the second respondent had rejected the petitioner’s representation, it is clear that the second respondent had abdicated his powers and had passed the impugned order at the dictates of the government.

The impugned order dated 02-06-1995 is, therefore, set aside and the second respondent is directed to consider the petitioner’s representation on its merits, independent of the earlier orders of the Government, and pass orders thereon in accordance with law within a period of three months from the date of receipt of a copy of this order.