1. The aged old proverb 'Rolling stone gathers no mass'' aptly applies to this case with precision. Years are rolled by; the litigation continued unabated, yet; no solution was in sight.
2. The petitioner's lather fate,P. Koteswara Rao, established Upper Primary School at Rajahmundry in 1932. It was admitted to grant-in-aid in the year 1936. But, however, on account of old age, he appears to have written a letter to the 3rd respondent - District Educational Officer, Kakinada to transfer the Manager and Correspondentship to his son, the petitioner herein, who is already Working as Secondary Grade Assistant in the institution. As the father would have it, the father of the petitioner died on 5-11-1983 which became the igniting point for various disputes.
3. It is the case of the petitioner that his father had three wives and had number of issues. The petitioner and the 4th respondent in this writ petition are the issues through the 2nd wife. The application filed by the deceased father dated 18-9-1983 for transfer of Correspondentship was not acted upon, as some disputes were raised within the family. One Mr. Satyanarayana, Son of 1st wife, filed suit O.S.No.545/1987 in the Court of the District Munsif, Rajahmundry seeking declaration that he is entitled and eligible for the post of Correspondent of the School. Ultimately, the said suit was dismissed on 6.8.1993 and the appeal filed by him in A.S.No.73/1994 is pending. As the 3rd respondent did not take any action for transfer of Correspondentship in favour of the petitioner, he filed Writ Petition No.4951/1988 before this Court seeking appropriate directions. The said writ petition was disposed of on 16-9-1998 directing the 3rd respondent to pass orders in respect ofthe application made by the father on 18-9-1983. The 3rd respondent in turn informed the petitioner that there was no provision in A.P. Education Act to transfer the Correspondentship of a school to an individual. Thereupon, the petitioner filed Contempt Case No.642/1988 and it was disposed of on 24-4-1989 with a direction tofile a fresh application showing the provision of law and the said direction was complied with by the petitioner on 5-5-1989. It is the case of the petitioner that he was directed to nominate a Committee to manage the affairs of the school and accordingly he constituted a Committee on 26-8-1989. The Deputy Inspector of Schools sent a proposal for change of correspondentship, however, the 3rd respondent did not take any action and resorted for appointment of teachers without there being any valid management. Challenging the said action, the petitioner filed Writ Petition No.15649/1989 and while admitting the Writ Petition, it was made clear that the appointment made by the 3rd respondent would be subject to further orders. Finally the 3rd respondent by proceedings dated 21-11-1993 basing on the recommendations of the Deputy Inspector of Schools approved the name of the petitioner as Correspondent of the School and directed the Deputy Inspector of Schools to hand over all the records of the school and report compliance. It is the case of the petitioner that he assumed the charge on 29-11-1993 as Correspondent. While so, the 4th respondent filed writ petition No.20274/1993 assailing the order of the 3rd respondent dated 21-11-1993. It appears that he also filed an appeal under A.P. Education Act to the competent authority. Therefore, when the matter came up for hearing, the same was disposed of with a direction to pursue the statutory appeal. But, it so happened that the appellate authority passed orders on 10-9-1996 setting aside the orders of the 3rd respondent dated 21-11-1993 without giving any opportunity to the petitioner. Therefore, aggrieved by the said orders dated 10-9-1996, the petitioner filed Writ Petition No.21Q30/1996 and the same was allowed on 3-2-1997 with a direction to hear the petitioner and to pass orders. It is the case of the petitioner that even though he sought for adjournment, the 3rd respondent did not grant any time as the time fixed by the High Court would be expiring and that he passed the order in a post-haste manner as he was to retire on 28-2-1997. It is also the case of the petitioner that only with a view to help the 4th respondent, such an order was passed on the last day ofhis laying down the office. However, against the said order dated: 28-2-1997, the petitioner filed an appeal before the 1st respondent -Director of School Education. When he sought for interim suspension of the order, he did not grant the same on the ground that there was no power under the Act. Against the said action of refusing to grant stay of the order of the lower authority, the petitioner filed Writ Petition No.6100/97 and it was disposed of by this Court on 28-3-1997 directing the 1st respondent to dispose of the appeal within four weeks. Against the said order, the 4th respondent filed Writ Appeal and the same was dismissed on 30-4-1997. Consequently, notices were issued to the parties by the 1st respondent and finally the proceedings were passed by the 1st respondent on 14-10-1997 confirming the order of the lower appellate authority namely Regional Joint Director of School Education, Kakinada.
4. Counters have been filed on behalf of the official respondents and the 4th respondent also. It is stated by the 4th respondent that the very application of the deceased Koteswara Rao was not maintainable under the provisions of A.P. Education Act. Admittedly, there were 18 legal heirs, who succeeded to the estate of the deceased and therefore the petitioner cannot claim correspondentship leaving others. The petitioner is required to produce the Succession Certificate and in the absence of such certificate, it would not be open for the authorities to decide the issue of Correspondentship.
5. The learned Government Pleader submits that there is no provision under the A.P. Education Act for transfer of either management of the institution or for Correspondentship of the School; Number of disputes have been raised by the parties staking claims to the succession of the deceased Koteswar Rao. Therefore, until such time, succession of the deceased is finalised and until a declaration by the competent Court is rendered with regard to the constitution of the valid management of the school, it w:ould not be open for the Government to allow thepetitioner to function as Correspondent of the school.
6. Elaborate arguments were advanced by the learned Counsel for the petitioner as also the learned Counsel for the 4th respondent and the learned Government Pleader.
7. For proper appreciation of the issue, it is necessary to refer to certain provisions of A.P. Education Act, 1982 (for brief 'The Act'). In sub-sections 27 and 28 of Section 2 of the Act, the word 'management' and the 'manager' has been defined which reads as follows:
27. 'management' means the Managing Committee or the governing body, by whatever name called, of a private institution to which the affairs of the said institution are entrusted, but does not include a manager;
28. ''manager'' means-
(i) in relation to a Government educational or special institution, the officer or authority to whom the power of immediate control over the administration of the institution has been entrusted.
(ii) in relation to a local authority educational or special institution, the authority or officer of the local authority educational or special institution concerned incharge of education;
(iii) in relation to a private educational or special institution, the person nominated to manage the affairs of the institution under sub-section(2) of Section 24'.
The private institution is defined under clause 35 of Section 2 of the Act, which reads as follows:
''private institution' means an institution imparting education or training, established and administered or maintained by (any body of persons), and recognised as educational institution by the Government, and includes a college, a special institution and a minority educational institution, but does not include an educational institution-
(a) established and administered or maintained by the Central Government or the State Government or any local authority;
(b) established and administered by any University established by law; or
(c) giving, providing or imparting only religious instruction, but not any other instruction'.
Prohibition for establishment of institution by an individual brought into the Act by an amendment with effect from 1.6.1987 which ordains that no individual shall establish a private institution. However, it was provided in sub-section that it shall not have any effect on any private institution established by any individual and recognised by the competent authority prior to such amendment.
8. Special provision was made in respect of the existing institutions under Section 22 which reads as follows:
22. Special provisions in respect of existing institutions :--(1) All the institutions imparting education which were established and recognised in accordance with rules in force immediately before the commencement of this Act and in existence at such commencement shall be deemed to be educational institutions, established and recognised under this Act, provided they comply with the provisions of this Act, and the rules made thereunder within such period and in accordance with such procedure as may be prescribed.
(2) x x x x (mitted as not necessary)''
The duties of a Manager in private institutions are stipulated in Section 25 which reads as follows:
25. Ditties of manager of Private Institution :--(1) The manager nominated under Section 24 shall be responsible for managing and conducting the affairs of the private institution in accordance with the provisions of this Act and rules or ordersmade thereunder and for maintaining the properties thereof in proper and good condition.
(2) It shall be the duty of the manager to maintain such records and accounts of the institution and in such manner as may be prescribed.
(3) The manager shall afford all assistance and facilities as may be necessary or reasonably required for the inspection of the institution and its records and accounts by such officer as may be prescribed or authorised by the competent authority in this behalf.
(4) Before the end of April in each year, the manager of every private institution shall furnish to the competent authority a statement containing a list of all movable and immovable properties of the institution with such other particulars as may be prescribed-'
Section 28 imposes restriction on the alienation of property of private institution which reads as follows:
'28. Restriction on alienation of property of private institution .'--(1) Notwithstanding anything in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of a private institution other than a registered school shall be made or created except with the previous permission in writing of the competent authority on an application made in this behalf.
(2)(a) No permission applied for under subsection (1) shall be refused by the competent authority except where the grant of such permission will in its opinion adversely affect the working of the institution.
(b) The competent authority shall pass an order, either granting or refusing permission applied for, within a period of sixty days from the date of receipt ofthe application.
(3) Any person aggrieved by an order refusing permission under sub-section (2) may, in such manner and in such time as., may be prescribed, appeal to the prescribed' authority.
(4) Any transaction made in contravention of sub-section (1) shall be null and void'.
9. Admittedly, the institution was established by a single individual Mr. Koteswara Rao before the Act came into force. He was also the Correspondent of the School. Under the Act, there shall be a Managing Committee or Governing Body, to which the affairs of the said institution are entrusted and there shall be a Manager who is required to be nominated under Section 24 (2) of the Act for managing the affairs of the institution. Upto 5-11-1983 late Koteswara Rao functioned in duel capacity as Manager and Correspondent and thereafter there was no Correspondent. What is enquired to be decided in this case is as to what are the conditions requisite for appointment to the Correspondent.
10. The issue whether deceased Koteswara Rao was authorised to request the authorities to transfer the Manager and Correspondentship of the School and whether the petitioner is entitled to be appointed as Correspondent of the School on the basis of the letter dated: 18-9-1993 issued by the deceased Koteswara Rao are secondary events but the primary requirement is that there shall be a valid and legal Managing Committee or governing body. As far as the Correspondentship is concerned, there is no dispute that under Section 24 of the Act, the management of the school shall nominate a person to manage the affairs of the institution (he may be otherwise be called as Secretary or Correspondent) subject to approval by the competent authority and the person so approved as Correspondent of the institution shall be responsible for managing and conducting the affairs of the institution in accordance with the provisions of the Act and the Rules framed thereunder. But, the moot question is whether there is a valid management of the school after the death of the foundermember Sri Koteswara Rao to manage the affairs of the institution. Therefore, without there being any valid management, there could not be any appointment of Correspondent. As can be seen from the provisions referred to above, the appointment of the Manager need not be in favour of the kith and kin of the founder member, but it may be any person. Thus, what is pre-requisite for appointment of Correspondentship is the existence of a valid management of the institution. In the absence of such a finding as to the valid management, there could not be any appointment or approval of the Correspondent. This is a conspicuous requirement, but however, ignoring this principal issue the parties have initiated proceedings in this Court and the Civil Courts seeking relief of appointment of Correspondent. It may be true that the deceased Koteswara Rao issued letter on 18-9-1993 requesting the authorities to transfer the management and the Correspondentship of the school to the petitioner, but whether such a letter could be made under the provisions of the Act. After coming into force, no Managing Committee was constituted by late Koteswara Rao. The learned Counsel for the parties have not been able to show any provision in the Act, with regard to the transfer of the management of the school and its approval by the authorities. But, however, this Court finds under Section 28, no sale, mortgage, charge or transfer of possession in respect of any property of a private institution other than the registered school shall be made or created except with the previous permission in writing of the competent authority on an application made to it. Even under Section 63 of A.P. Education Act, 'any transfer of property movable or immovable, or any delivery of goods made by or on behalf of the educational institution (not being a transfer or delivery made in the ordinary course of transaction or in favour of a purchaser for valuable consideration and in good faith), if made within a period of one year immediately preceding the date aforesaid, shall be void as against the Government or the special officer, as the case may be'. It is seen from the letter dated; 18-9-1983 that the deceased Koteswara Rao made an applicationfor transfer of the manager - Correspondentship of the school in favour of the petitioner. He also filed certain declarations dated 18-11-1983 which are said to be enclosures to the letter dated 18-9-1983 to the effect that Koteswara Rao handed over the rights of the management of the school and he has nothing to do with the affairs of the school. Similar declaration was also made by the petitioners that he took over the management of the school and he is liable for claims resting on the management and he shall continue to fulfil all conditions specified in the Education Rules. The right to transfer the possession of private institution also embraces in it the right to manage the institution and when the former right is subject to prior permission, the concomitant right also suffers with same disability. Therefore until the right to transfer the possession of the institution is permitted, no right would accrue to any person the right to manage the institution. Admittedly, in the instant case, there is no valid transfer of possession of the institution as required under Section 28. As things stand the founder member is no more and right to possession is a property right which has to be established by the party claiming such right before the appropriate Court, Until such time, 'the said right is established, the question of appointment of manager Correspondent of the School does not arise for consideration. The suit in O.S.No.545/1987 relates to the claim for Correspondentship. Similarly suit No. 433/91 filed by the 4th Respondent also claim of Correspondentship. When there was no valid transfer of possession of the institution, it can be equally said that there was no valid right to manage the School. This aspect was not considered by the authorities and they were only swayed away by the fact that the number of litigations have been resorted to by the parties and the number of cases have been filed by the legal heirs of the deceased Koteswara Rao are pending in various Courts. The authorities also found that the Succession Certificate was not produced and therefore the appointment of the Correspondent could not be approved. These grounds in my view are not relevant for the reasons set out supra. As already stated that all the litigations were onlyconcentrated for the correspondentship of the institution which is dependant on the validly constituted management pursuant to valid possession of the institution. Thus as on date there is no valid transfer of possession of the institution and consequently there cannot exist a valid management. The Correspondentship of a private institution is neither heritable nor transferable and the person who is nominated by the management to function as Manager is entitled to discharge the said functions subject to the provision of the Act. Therefore it is for the parties concerned including the legal representatives of fate Koteswara Rao to seek declaration that they are entitled for the possession and management of the institution. No such declarations were granted by the competent Court. Hence, appointment of any person either the petitioner or the 4th respondent cannot be considered by the authorities in the absence of such declaration. Though the reasons assigned in the impugned order are not sustainable yet, the petitioner cannot be granted any relief for the reasons detailed in preceding paras.
11. Under these circumstances, the writ petition is dismissed. No costs.