Madras High Court
Association Of Management Of Hindu ... vs State Of Tamil Nadu, Rep. By Secretary To ... on 3 April, 1998
Equivalent citations: 1998(2)CTC172
ORDER
1. When the miscellaneous petition came up for hearing as agreed by the learned counsel for the petitioner and the learned Additional Advocate General for the respondents, the main writ petition itself is taken up for final hearing.
2. The brief facts are: The Petitioner Association, in this writ petition seeks for the issuance of a writ of certiorari to call for the records made in Na.Ka.No.105532/C22/96 dated 2.10.1996 passed by the second respondent and to quash the same and pass such other orders.
3. The petitioner Association is a registered one. It has been started for the purpose of advocating the grievance of Hindu Educational Institutions throughout the State of Tamil Nadu. It is stated in the affidavit that all the members of the petitioner Association are receiving grant from the Government of Tamil Nadu and that they are scrupulously following the Tamil Nadu Recognised Private Schools Regulation Act and the Rules framed thereunder. It is further stated that the petitioner schools are functioning efficiently and their teaching standards and the quality of education are remarkable.
4. Petitioner submits that as per G.O.Ms.No.1138 dated 25.9.1978, the schools should recruit its personnel only through employment exchange by way of notifying the vacancies and also resort to any other form of recruitment, after obtaining a non-available certificate from the concerned employment exchange. It is further stated that G.O.Ms.No.778 dated 19.5.1979 permitted the school management to fill up the vacancies by conducting interview but those candidates should have been enrolled in the employment exchange in live list. In that, it has also been mentioned that within ten days, the employment exchange concerned should sent the list of candidates, and if no such list is received within that stipulated time, the schools can recruit those candidates by giving paper publication. By proceedings of the second respondent herein in. Na.Ka.No.105532/C22/96 dated 2.10.96, which is impugned herein, it is stated that the schools should recruit those candidates who were sponsored only by the employment exchange and if any school resorts to direct recruitment, then disciplinary proceedings will be taken against them. With these allegations, the petitioner association is before this Court, with the prayer stated above.
5. Notice of motion was ordered by this Court on 9.1.97.
6. A counter-affidavit is filed by the respondents. It is stated that G.O.Ms.No.1138 dated 25.9.78 was issued directing the schools to recruit its personal only through employment exchange by way of notifying the vacancies and G.O.Ms.No.778 dated 19.5.1979 was issued directing the Chief Educational Officer or the concerned appointing authority should intimate the approximate vacancy position to the concerned District Employment Exchange within 20th day of May every year and in turn the authority of employment exchange should sent the list of candidates within 5th June. However, the Government in their letter No.45404/Ll/85 dated 1.12.86 amended the guidelines in G.O.Ms.No.778 to the effect that the authority of employment exchange should furnish the list of candidates within 15 days from the date of the receipt of the notification. It has been stated in the counter affidavit that a batch of writ petitions was disposed of by this Court, wherein both G.O.Ms.No.1138 dated, 25.9.1978 and G.O.Ms.No.778 dated 19.5.1979 were challenged and on appeal, a Division Bench of this Court, while upholding the Government Orders, however observed that appointments made prior to the date of the order may be considered on merits without reference to the fact such appointments were made from open market. It is also stated in the counter affidavit that the Director of School Education issued instructions to the Subordinate Education Authorities in proceedings dated 15.8.96 to recruit their man-power needs only through employment exchange abiding the norms contained in G.O.Ms.No.1138 dated 25.9.1978 with other instructions. It has been mentioned in the counter affidavit that the impugned proceedings in WP No. 385 of 1997 etc. are nothing but the instructions given by the Director of School Education to the subordinate educational authorities to advise the non-minority private educational institutions to follow the guidelines and government orders relating to the mode of appointments. It is further pointed out in the counter affidavit by issuance of G.O.Ms.No.873 dated 13.11.95 the power of the management to make selection of the candidates is not taken away, that it is open to the management to make selection out of the candidates who are sponsored by the employment exchange and as such, it would not offend Articles 14 and 16 of the Constitution of India. Relevant Observations of the judgment of the Division Bench were noted in the counter. It is further stated that the judgment of the Supreme Court in Excise Superintendent, Malkapatnam v. K.B.N. Visweshwar Rao and others, will not apply to this case since the issue raised therein did not relate to a condition for payment of grant. It is further stated that the case of the petitioner relates to the appointments and service conditions of the employees in non-minority private aided schools which are receiving cent per cent grant from the Government and as such, the decision in Excise Superintendent, Malkapatnam v. K.B.N. Visweshwar Rao and others, will not apply to the case on hand. It is further stated that the regulations are at the larger and overall interest of all the unemployed people on the rolls of employment exchange and the Government as an aid granting authority has a right and power to impose such reasonable restrictions on the managements of aid-receiving institutions. With these allegations, the respondents pray for the dismissal of the writ petition.
7. The grievance of the petitioner that the proceedings of the respondents, impugned herein, is in violation of the judgment of the Supreme Court reported in Excise Superintendent Malkapatnam, AP. v. K.B.N. Visweshwara Rao and others, . Learned counsel for the petitioner submits that in view of the above mentioned decision the mode of selection is from the list sponsored by the employment exchange as well as from the candidates appearing after a vide publicity in dailies and media. As such, the learned counsel for the petitioner submits that the impugned circular to be quashed.
8. Learned Additional Advocate General appearing for the respondents submits that the impugned circular is only an internal communication and it is in. compliance of the observations of the Division Bench of this Court. He submits that the petitioner cannot challenge the internal communication on the basis of the decision of the Supreme Court mentioned above. He further submitted that mere approval granted in WP. (cited supra) will not ipso facto quash the impugned order and it will not be helpful to the petitioner in the given case. He also relies on the judgment of the Supreme Court reported in Arun Tewari v. Zila Mansavi Shikashak Sangh, AIR 1998 SC 331.
9. I have given my careful consideration to the arguments of the respective learned counsel for the petitioner and the learned Additional Advocate General and perused the materials placed before me and the case law cited at Bar.
10. It is no doubt true that the administrative instructions cannot be inconsistent with the Rules and cannot override but they can supplement.
11. Learned counsel for the petitioner has not been able to point out any other mode of selection of personnel, except the mode prescribed in the Government Orders which had been challenged earlier. A Division Bench of this Court in the case of State of Tamil Nadu etc. v. The T.N. Recognised Private Schools Managers' Association etc., 1995 WLR 499 while considering the question as to whether the private educational institutions other than minorities receiving aids can be directed to make recruitment through the employment exchange, held that the impugned Government Orders directing private educational institutions to fill up the vacancies from among the candidates sponsored by the employment exchange and in the event the names of candidates furnished by the employment exchange are not found to be suitable and if no other suitable candidate is available among the candidates registered in the employment exchanges, it would be open to the private educational institutions to obtain permission from the State Government or the concerned authorities as the case may be, and proceed to make recruitment through open market are well founded.
12. A perusal of the impugned order dated 2.10.96 shows that it is only a letter written by State Secretary to other heads of Departments, wherein the Heads of Departments throughout the State have been instructed to follow the procedures mentioned in the Government Orders existing as on date. It has been further pointed out therein that any failure to comply with the abovesaid instructions will be viewed seriously and disciplinary action will be initiated for such lapses.
13. In the circumstances, the question of setting aside the impugned proceedings dated 2.10.96 does not arise in the absence of existence of any new mode or its violation. As already stated, the decision of the Division bench of this Court, cited supra, which approval the selection through employment exchange and if no suitable candidates are available from the employment exchange then, appointments can be made among the candidates available from open market subject to approval of the Government. The decision has become final. Further, special leave petition filed against the judgment of the Division Bench has been dismissed, which fact is not disputed. As such, the petitioner is not entitled to challenge the same, in the garb of Government Orders dated 13.11.95 and 2.10.96.
14. So far as the argument that the impugned order is inconsistent with the observations of the Supreme Court in Excise Superintendent Malkapatnam's case, is concerned, it is not acceptable. In the above mentioned case, the Apex Court has upheld the claim of consideration of such persons, who have not come forward through the employment exchange, in the facts of that case. So the petitioner cannot take advantage of the decision of the Supreme Court, on the ground that the impugned proceedings is inconsistent. In any view of the matter the impugned proceedings is nothing but a clarification of the earlier Government Orders.
15. It is not out of place to mention that in a recent case, two amendments and Circulars of Madhya Pradesh Non-Gazetted Class III Education Service (Non-collegiate service) Recruitment and Promotion Rules were challenged and they were struck down by the Administrative Tribunal.
The Apex Court in Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 after considering the cases of Excise Superintendent, Malkapatnam, and the case of Union of India v. Hargopal, observed as follows:
"..There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue..."
Their Lordships, without overruling, but distinguishing Hargopal's case. upheld the impugned amendments to the Recruit Rules as also the Circulars relating to the procedure for selection. Therefore, on this count also, the petitioner cannot challenge the circular saying that it is inconsistent with the decision of the Supreme Court.
16. No facts were pleaded about the individual in the writ petition filed by the Association on behalf of so many persons. Learned counsel for the petitioner has not beep able to point out any specific pleadings that at the point of time whether a list was called from the employment exchange concerned or not, whether the employment exchange concerned sent a nil report to the private agency, and that whether suitable persons were available or not before giving appointment to an individual through advertisement, with the prior permission, from open market. So merely on the general allegation, it cannot be presumed. Nor it can be gone into in this writ petition. Further, each case depends upon the facts of its own case. So, no direction for the approval of the members of the Association can also be granted in general.
17. However, it would have been a different matter, if both modes were available in the Rules itself simultaneously. The other mode will come into picture, if no suitable candidate from employment exchange is available. The State Government is always free to consider in future, looking to the needs of the day and better course to ask the candidates to apply, in pursuance of advertising through dailies and media in addition to calling candidates from employment exchange, as per the observations of the Supreme Court in the case of Arun Tewari, AIR 1998 SC 331. As already discussed, no direction as prayed for in this writ petition, can be issued.
18. the petitioner also cannot take advantage of the unreported decision of this Court in, A. Deviapalam v. The Director of School Education, Chennai-6 and others, WP No.9316 of 1997 dated 24.11.1997, which was passed, in the circumstances of that case. In that case, the court directed the 2nd respondent to grant approval for the petitioner's appointment, if he is qualified and if he had been selected from among those who had applied for the post pursuant to the advertisement, if the vacancy had also been noticed to the employment exchange and candidates sponsored by the employment exchange are considered before the petitioner was selected. A perusal of the said order shows that it has been passed only with certain conditions which were stated by the Division Bench of this Court in the case mentioned above.
19. No other point was urged before me.
20. For the reasons stated above, the writ petition is dismissed. The order of stay granted earlier is vacated. Vacate stay petition is allowed and the stay petition is dismissed. There will be no order as to costs.