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2005 DIGILAW 191 (SC)

S. SRIRAMULU v. GOVT. OF A. P.

2005-01-31

C.K.THAKKER, RUMA PAL

body2005
ORDER 1. Leave granted. 2. The question which arises is who is entitled to run the school named Hindu Aided Elementary School at Ravinuthala village, Prakasham district in the State of Andhra Pradesh. The school was started by one Venkateswarlu in 1926. Venkateswarlu died in 1987 leaving behind him his two sons, namely, (the appellant and Surya Narayanan. Both sons of Venkateswarlu claimed that their father had executed Wills in their favour. As far as the 'appellant is concerned, he claimed that the Will was executed on 12-12-1984. As far as' Surya Narayanan is concerned, his claim is with relation to Will stated to have been executed on 1-4-1985. 3. Surya Narayanan was at all material times working as a secondary I grade teacher in another school and it is not in dispute that he was, by reason thereof, under the Andhra Pradesh Education Act, disqualified from running the school set up by his father. Surya Narayanan, however, executed a general power of attorney on 13-10-1988, in favour of his wife, Respondent 5 herein, , and appointed her as the Correspondent of the school. Her appointment was approved by the District Education Officer (DEO) on 22-5-1999. After several proceedings initiated by the present appellant, ultimately an order was passed by the Secretary, Education Department of the Government of Andhra Pradesh on 9-7-1996 directing the authority to appoint the appellant as the Correspondent of the school. 4. Challenging the order dated 9-7-1996 Respondent 5 filed a writ petition before the High Court. She claimed that she was eligible to be appointed as the Correspondent and that her right to be in management of the school had been wrongly interfered with by the Secretary. While disposing of the writ petition on 29-11-1996, the High Court came to the conclusion that as Surya Narayanan could not hold the correspondent ship of .the school, he could not transfer that right in favour of his wife. It was held therefore that the Secretary had correctly passed the order dated 9-7-1996. The High Court directed the District Education Officer to consider the question of appointment as the Manager/Correspondent of the school after considering whether the appellant was eligible and qualified to be so appointed. Effectively, Respondent 5's writ petition was dismissed. However, she did not prefer any appeal from this decision. 5. The High Court directed the District Education Officer to consider the question of appointment as the Manager/Correspondent of the school after considering whether the appellant was eligible and qualified to be so appointed. Effectively, Respondent 5's writ petition was dismissed. However, she did not prefer any appeal from this decision. 5. Pursuant to the High Court's decision an order was passed on 14-6-1997 by the DEO. After considering the representations made by both the appellant and Respondent 5 the DEO appointed the appellant as the Manager on the grounds (a) that Surya Narayanan was ineligible to be a Manager of the institution and therefore he could not transfer that management to Respondent 5; (b) that the appellant had been working in the same institution for a long time and had retired therefrom on 31-5-1996; and (c) that the appellant was the elder son of Venkateswarlu and therefore he was entitled to look after the affairs of the school. 6. The respondent filed a second writ petition before the High Court challenging the order dated 14-6-1997. The learned Single Judge came to the conclusion that the view expressed in the previous writ petition was wrong insofar as it held that Surya Narayanan was not eligible to be appointed as a Correspondent and that he could not execute a power of attorney in favour of Respondent 5. The learned Single Judge also held that Surya Narayanan was the owner of the school and that he was as such owner entitled to appoint a Manager under Section 24(4) of the Andhra Pradesh Education Act. It was held that the appointment of the appellant as Correspondent was contrary to the desire of Venkateswarlu "who has expressed himself in crystal clear terms in the registered will executed by him". The learned Single Judge accordingly allowed Respondent 5's writ petition and quashed the order dated 14-6-1997 and directed the handing over of the management to Respondent. 7. The appellant took the matter up before the Division Bench. The Division Bench by the impugned order upheld the reasoning of the learned Single Judge and dismissed the appeal. The appellant has impugned the decision of the Division Bench before us. 8. 7. The appellant took the matter up before the Division Bench. The Division Bench by the impugned order upheld the reasoning of the learned Single Judge and dismissed the appeal. The appellant has impugned the decision of the Division Bench before us. 8. The appellant has contended that the Division Bench as well as the learned Single Judge had wrongly allowed the writ petition on the basis that Surya Narayanan was the owner although he had not yet obtained probate of the alleged Will dated 1-4-1985, the Will being the subject-matter of civil proceedings being OS No. 130 of 1998 before the Junior Civil Judge, Addanki. It is also submitted that it was not open for the learned Single Judge to have differed from the view expressed in the earlier writ petition filed by Respondent 5. The decision was final, not having been challenged in appeal. It is submitted that the parties were barred from reagitating the issue by filing a fresh writ petition. The decision of the Division Bench has been also impugned on these grounds. 9. Learned counsel appearing for Respondent 5 has stated that the decision of the DEO was taken on an incorrect basis insofar as it was held that Surya Narayanan could not appoint Respondent 5 to manage the school a Our attention was drawn in particular to Section 24(2) of the Andhra Pradesh Education Act in support of this submission. 10. We are of the opinion that the impugned decision of the High Court cannot be sustained. First, Respondent 5 had in the earlier round of litigation questioned the very issue which had been held against her by the Secretary in the order dated 9-7-1996, namely, that Surya Narayanan was incapable of t being in management and that he could not transfer the right of management. The decision of the writ court on the first writ petition was clear, namely, that Surya Narayanan could not manage and could not transfer the right of management to Respondent 5. The decision became final and binding on the parties and it was not open to Respondent 5 to question that issue in a separate writ proceeding. 11. Second, the matter had been remanded back to the DEO only to determine the eligibility of the appellant. This had been decided by the DEO by the order dated 14-6-1997. The decision became final and binding on the parties and it was not open to Respondent 5 to question that issue in a separate writ proceeding. 11. Second, the matter had been remanded back to the DEO only to determine the eligibility of the appellant. This had been decided by the DEO by the order dated 14-6-1997. The question of Respondent 5's right to manage the school had not been remanded for redecision to the DEO. Neither the learned Single Judge nor the Division Bench under Article 226 could have set aside the decision of the DEO on a ground which could not have been decided by the DEO. 12. Third, both the Benches of the High Court have decided in favour of the respondent on the basis that Surya Narayanan was the owner of the school ignoring the fact that there was no probate granted in respect of the alleged Will dated 1-4-1985 in Surya Narayanan's favour. There was a suit pending. The High Court could not, more so in writ proceedings, have predetermined the issues which will be decided in the pending suit. 13. Finally, if the High Court was dissatisfied with the decision of the DEO, the High Court should have set aside the order and remanded the matter back to the DEO for reconsideration and not taken it upon itself to determine the suitability of either the appellant or Respondent 5 to be the Correspondent of the school. It may be noted that Section 89(b) of the Andhra Pradesh Education Act allows for an aggrieved party preferring an appeal from the decision of the DEO. Respondent 5 ought to have been relegated to her alternative remedy available under the statute without allowing her to repeatedly invoke the jurisdiction of the Court under Article 226. In the circumstances the appeal is allowed and the decision of the High Court is set aside. 14. It will, however, be open to Respondent 5 to file an appeal under Section 89(b) of the Andhra Pradesh Education Act provided the same is done within a period of four weeks from today. This order is passed in view of the fact that Respondent 5 had been prosecuting her remedies albeit in an inappropriate forum. The order of the DEO is therefore confirmed but this will be subject to any decision in the appeal that may be preferred by Respondent 5.