Madras High Court
N. Jeisi Deisi vs The State Of Tamil Nadu Represented By ... on 23 February, 2000
Equivalent citations: 2000(4)CTC739
ORDER
1. The petitioner prays for the issue of writ of certiorarified mandamus calling for the records of the third respondent in Na.Ka.No.5155/A4/97, dated 12.11.1997 and quash the same and direct the respondents 1 to 4 to approve the petitioner's appointment as Secondary Grade Teacher in the 5th respondent School.
2. Heard Mr.K. Chandru, for M/s. G. Jermiah and P. Krishnan, and Mr.N. Subramani, Government Advocate (Edn.) appearing for the respondents.
3. The petitioner's case could be summarized briefly: The petitioner after passing Higher Secondary Course Certificate joined the Teachers Training Course at Children's Garden School, Mylapore, a recognised Teachers Training Institute and completed the course in 1989. The petitioner appeared for the examination conducted by the Director of Government Examinations and the said authority issued Teachers Training Certificate Secondary Grade. The certificate also mentioned that the petitioner had appeared for the Kindergarten Examination.
4. The petitioner was temporarily appointed in another school where the service register was opened. The petitioner also served in leave vacancy and served in a secondary grade leave vacancy in those schools. The petitioner was appointed on 18.6.1997 in a permanent vacancy that had arisen in the 5th respondent school due to the retirement of permanent secondary grade teacher. The 5th respondent school submitted proposal for the approval of the appointment from the 3rd respondent. The 4th respondent had returned the service register on the ground that the petitioner had passed Kindergarten Teacher's Training Course and hence she is not qualified. The petitioner moved this Court and this Court directed the petitioner to file an appeal under Section 41 of the Act. The 3rd respondent rejected the appeal. Hence the present writ petition.
5. According to the petitioner, the certificate issued by the first respondent clearly mentions "Teachers Certificate Secondary Grade". Hence it is not open to the 3rd respondent to now contend that the petitioner's certificate is not equivalent to the secondary grade teachers certificate. The impugned order had been passed in violation of principles of natural justice, besides it is an arbitrary exercise of power. The certificate possessed by the petitioner had been misconstrued. It is further pointed out that the qualifications prescribed in Annexure V is T.S.L.C. of Secondary Grade or its equivalent and the petitioner's certificate should have been treated as equivalent to that of a secondary grade certificate.
6. The petitioner also points out that after passing Higher Secondary Course Examination, she had also undergone the Teachers Training Course for two years and appeared for the examination conducted by the State Government.
7. The petitioner also points out after passing Higher Secondary examination she had also undergone the Teachers Training Course for two years and appeared in the examination conducted by the State Government and a Secondary Grade Teacher Certificate has been issued and therefore, the respondent are estopped from contending that the Teachers Training Certificate possessed by the petitioner is not equivalent to that of the Secondary Grade Certificate.
8. The first respondent has since abolished the post of elementary grade teachers and in that context conducted a short term course SCERT and upgraded all the elementary teachers as secondary grade teachers. It is also contended that the respondents having issued a valid certificate cannot now invalidate the same and it is held that it is of no value for the purpose of employment. It is contended that the first respondent by G.O.Ms.No.1251, Education Department dated 14.12.1992 which has since been modified by subsequent letter dated 13.5.1993 directed that Pre School Teachers Training Course holders are eligible to hold the post of secondary grade teachers in Government School and local bodies and when the petitioner possess the same qualification, she cannot be singled out and treated differently merely because she is appointed to a private school. The refusal to approve the petitioner's appointment in the 5th respondent school is arbitrary violative of Article 14 of the Constitution and it is discriminatory.
9. On behalf of the respondents, 1 to 4 Additional Secretary to Government School, Education Department had filed the counter affidavit. The petitioner has been appointed as Secondary Grade Assistant in the 5th respondent school on 18.6.1997. In terms of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Private Schools (Regulation) Rules, 1974 the qualifications prescribed for the post of secondary grade teachers are:
1. Higher Secondary School Leaving Certificate
2. Diploma in Teacher Education or Secondary Grade Teacher Training Certificate in Higher Secondary School Leaving Certificate (Vocational).
10. But the writ petitioner possesses the following qualifications, namely
1. Secondary School Leaving Certificate
2. Higher Secondary School Leaving Certificate (Kindergarten Training School Leaving Certificate Examination).
11. The certificate possessed by the petitioner is equivalent to that of Elementary School Teacher and as the petitioner does not possess the requisite qualification, in terms of Rule 15(6) her appointment was not approved. The refusal to approve has also been confirmed in appeal. After amendment on 20.3.1978, the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, the teachers who had passed the Nursery, Montessori and Kindergarten School Leaving Certificate Examination Of Secondary Grade cannot be appointed in the sanctioned post of Secondary Grade Teacher. Hence the petitioner is not qualified to hold the post of Secondary Grade Teacher and her appointment cannot be approved.
12. Merely because, the petitioner was appointed in a leave vacancy in some schools, the same will not confer her a right to appoint on a regular basis. Further the qualifications fixed for the particular post cannot be relaxed. The Kindergarten Training Certificate is not the suitable qualification for the post of secondary grade teacher and the petitioner does not possess the qualifications prescribed under Rule 15(6) of the Rules for the appointment as Secondary Grade Assistant.
13. The petitioner cannot claim that the Kindergarten Garden Teachers Training Certificate possessed by her is equivalent to that of the Secondary Grade Teacher Certificate, namely, Diploma in Teacher Education. The category of Elementary Grade Teacher has already been abolished and as such the action of appointing the petitioner even as Elementary Grade Teacher cannot be considered now. Further the petitioner was appointed as a teacher in Secondary Grade vacancy by the 5th respondent management and the approval in that respect had been rightly declined.
14. If the Kindergarten Garden Leaving Certificate possessed by the petitioner is not equivalent to Secondary Grade Teachers Certificate or Diploma in Teachers Education and such a certificate holder can be appointed only as Elementary Grade Teacher in terms of the amendment issued by G.O.Ms.No.564 dated 20.3.1978. The plea of estoppel is misconceived and has no application to the facts of the case. The petitioners request to permit her to undergo SCERT short term course also cannot be considered. Unless the petitioner satisfies the qualifications prescribed as per the Rules in force on the date of appointment and her appointment cannot be approved.
15. In G.O.Ms.No.1251 of Education (M1) Department dated 14.12,1992 the procedure for selection of candidates for appointments in Government/Municipal and Panchayat Union Schools has been provided and it has no application with respect to unaided school. The petitioner cannot compel the respondent to approve her appointment unless she is possessed of the qualifications as prescribed by the statutory rules. The syllabus for Kindergarten Garden Training and the syllabus for Diploma in Teacher Education are entirely different and they cannot be equated. The petitioner is not entitled to the relief prayed for in the writ petition.
16. Mr.K. Chandru, learned Senior Counsel appearing for Mr.Jermiah referred to the rules framed in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 as well as the rules relating to the Tamil Nadu Recognised Private Schools Rules 1974 and the 5th respondent being a minority school further referred to the said rules.
17. The learned counsel contends that though the petitioner may not be eligible to be appointed as Secondary Grade Teacher in terms of the Tamil Nadu Private School Regulation Act and the Rules framed thereunder, but in terms of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, the petitioner possess the qualifications and is entitled to approval and she cannot be treated differently. The learned counsel also referred to both the rules and pointed out that while amending the rules of Tamil Nadu Private Schools Regulation Rules, identical rule in the Tamil Nadu Minority Schools (Recognition & Payment of Grant) Rules, 1977 had not been amended nor any amendment had been introduced. As such it is contended that the petitioner, who possesses the qualifications prescribed under the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 is entitled for a direction to approve her appointment in the 5th respondent school.
18. Per contra, the Special Government Pleader (Education) contended that the approval sought for is under the Tamil Nadu Recognised Private School Regulation Act and the Rules framed thereunder and being a statutory rule, unless and until the petitioner satisfies the required qualifications, her appointment cannot be approved. The approval is not under the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, which enables the minority schools for being assessed to grant. It is true that the Minority Schools (Recognition and Payment of Grant) Rules, 1977 the provision continued without amendment, but that would not enable the petitioner to claim approval or appointment or approval being granted after amendment of the Tamil Nadu Private Schools Regulations rules.
19. It is further contended by the learned Government Pleader that the scope of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 is for assessing the grant only and merely because the petitioner possess the qualifications prescribed in the said rules, she will not be entitled for appointment or approval for her appointment as she does not possess the requisite qualifications prescribed under the Tamil Nadu Recognised Private Schools (Regulation) Act and the rules framed thereunder. At any rate, the statutory provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 and the rules framed thereunder will prevail over the rules of Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules and the Government order enables those teachers who have already been appointed to be continued and their being assessed for payment of grant.
20. Further the appointment of Elementary Grade Teachers have already been abolished and minimum qualification is prescribed for a secondary grade teacher. The petitioner who is not eligible to be appointed cannot compel the respondent to approve her appointment. This Court has to consider the scope of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977 and the scope of Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 and the Regulation Rules, 1974 as amended.
21. For brevity, the Tamil Nadu Recognised Private Schools Regulation Act, 1973 shall be referred as The Regulation Act and the rules framed thereunder shall be referred as the Regulation Rules, 1974. The Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 shall be referred as Minority Grant Rules, 1977 for convenience.
22. Section 14 of School Act provides for sanction and payment of grant. Section 14 provides that notwithstanding anything contained in this Act or in any other law for the time being in force, no private school shall only on the ground of having been granted recognition under the Act be entitled to any grant or other financial assistance from the Government, unless the stipulations contained therein are satisfied.
23. Section 19 provides that the Government may make rules regulating the number, qualifications and conditions of service of the teachers and other persons employed in any private school. Section 20 provides that no person who does not possess the qualifications prescribed under Section 19 shall on or after the date of commencement of this Act be appointed as teacher or other employee in any private school. Sub-Section (2) of Section 21 protects the existing teachers. In exercise of powers conferred by Section 56 of the Regulation Act, 1973, the Regulation Rules, 1974 were framed.
24. Rule 11 provides for payment of grant from State funds directly or through Panchayat Union. Sub Rule (3) of Rule 11 provides the rate at which and the purpose for which the grant may be paid shall be specified in Annexure I. Sub-Rule (5) of Rule 11 provides that no private school shall only on the ground of having been granted recognition under the Act be entitled to any grant or other financial assistance from the Government.
25. Rule 15 provides for the qualifications, conditions of service of teachers and other persons as well as for promotion. Annexure I to Rule 11(3) read with Annexure I provides for payment of grants from State funds towards Staff Grant, Maintenance Grant, etc. Rule 19 read with Annexure III prescribes the procedure for payment of pay and allowance to teachers and other persons employed in private schools. Annexure V prescribes the qualifications for appointment as Teachers in Private Schools. In the present case, we are concerned with the post of secondary grade teacher.
26. For the post of secondary grade teacher, the qualifications prescribed being: (1) SSLC (2) TSLC of Secondary grade or its equivalent. For the post of Elementary Grade Teacher qualifications have been prescribed. Though we are not concerned with the appointment of secondary grade teacher, it would be relevant to refer to the qualifications prescribed with respect to the two teachers.
Secondary Grade Teacher : (1) S.S.L.C (2)T.S.L.C. of Secondary Grade or its equivalent.
Elementary Grade Teacher : E.S.L.C or its equivalent and Trained Teachers Certificate of Elementary Grade or its equivalent.
Teachers who have passed the Nursery Montessori and Kindergarten Garden School leaving certificate examination of Secondary Grade shall be employed to handle standards I and II only.
27. Minority Schools Grant Rules which is being relied upon by the petitioner provides for assessing grant for minority Schools. The Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 came into force on 1st December, 1974. Rule 6 of Grant Rules provides for payment of grant. Rule 8 prescribes the qualifications of Teachers in Minority School for assessment of grant and the same has been specified in Annexure III to the Rule.
28. Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 already referred had not been framed under the Private Schools Regulation Act or under any other statutory provision. It is an executive order. The Grant Rules is not a rule made in exercise of a power conferred by any enactment nor it is a regulation made as a Rule under any enactment.
29. Section 3(51) of the General Clauses Act, 1897 (Central Act X of 1897) defines the expression rule which reads thus:
"Rule" shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made as a rule under any enactment."
Such a definition finds place in the Central Act. While however Section 6 of the Tamil Nadu General Clauses Act which reads thus, also mean the statutory Rule framed by virtue of Power conferred on the Government or authority.
6. Making of rules and issue of orders between passing and commencement of Act-Where by an Act to which this Chapter applies and which is not come into force immediately on the passing thereof a power is conferred on Government or other authority to make rules or to issue orders with respect to the application of the Act or with respect to appointment of any officer thereunder such power may be exercised at anytime after the passing of the Act, but rules or orders so made or issued shall not take effect till the commencement of the Act."
30. As such the Grant Rules not having been made by virtue of a power conferred by any enactment, the Minority Schools (Recognition and Payment of Grant) Rules, 1977 is nothing but an administrative guideline for assessing grant framed by the exercise of executive Power of the State. The Grant Rules has been issued in exercise of executive power of the State. As the executive powers of the State is co-extensive with that of the State Legislature, it follows the State Executive may make Rules regulating any matter within the legislative competence of the State Legislature, and such rule could be framed without prior legislative authority unless such rule infringes fundamental right or violate any provision of the Constitution.
31. Rules made under Article 162 are such Rules made under the authority of the executive powers and not in exercise of any power delegated by the legislature. Such Administrative Rules which the executive had framed will be operative so long as a law made by the legislature is not in force nor it occupies the field or conies into operation. Such administrative rule becomes inoperative when law made by the legislature occupies the field comes into operation. This legal position is well settled by the decision of the Apex Court in Nanjundappa v. Thimmiah, as well as State of Madhya Pradesh v. Nivedita, paras 20, 23; and Accountant General v. Doraiswamy, .
32. When there is no statutory power empowering the state executive to make rules and such rules are made under the executive power conferred by Article 162 such rules may be enforceable in certain circumstances, provided it does not conflict with any existing law or any provision of the Constitution. This position has been settled by the Apex Court in Balaji v. State of Mysore, .
33. Following the decision of the Apex Court in Balaji v. State of Mysore, this Court holds that the statutory rules framed under the Private Schools Regulation Act will prevail as against the Tamil Nadu Minority Schools (Regulation and Payment of Grant) Rules and when there is a conflict between the two as the former is a statutory rule made in exercise of powers conferred by statute and the latter being an administrative order by the Executive, the rules framed by virtue of the powers conferred by statutory enactment alone prevails and the Executive rule has to give way.
34. As already pointed out the Minority Schools Recognition and Payment of Grant Rules were framed during the year 1977 while the Private Schools Regulation Act, 1973 is in force on 24th June, 1974 and the Private Schools Regulation Rules 1974 were framed on 24th November, 1974 and it has come into force with effect from 1.12.1974.
35. With respect to the qualifications for appointment to the post of secondary grade teacher in respect of private schools, which is governed by the Private Schools Regulation Act and the Rules framed thereunder, the minimum qualifications prescribed under the statutory rule alone has to prevail. There was an identical rule in the Tamil Nadu Private Schools Regulation Rules 1974 and which was in pari materia with the Tamil Nadu Minority Schools (Regulation and Payment of Grant) Rules,1974. The minimum qualifications prescribed for the post of secondary grade teacher the two rules were identical. The two rules continued to be identical till the statutory rule came to be amended.
36. It is the settled legal position that in so far as there is a conflict between the Private Schools Rules, 1974 and the Minority Schools (Recognition and Payment of Grant) Rules, 1977, the former will prevail and the latter will have to give way. The latter being an Administrative Rule in so far it is contrary to statutory Rule is inoperative as the Private Schools Regulation Rules, 1974 with respect to the qualifications in respect of Secondary Grade Teacher had been amended. The Minority Schools Grant Rules, 1977 in so far it runs counter to or conflict with, the Private Schools Regulation Rules, 1974 is not enforceable.
37. A Division Bench of this Court in C. Stephenson Roobasingh v. State of Tamil Nadu and others, 1993 WLR 544 considered the scope of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder vis-a-vis the Tamil Nadu Minority Schools (Payment of Grant) Rules and held thus:-
"34. We have already referred to the judgment of a Division Bench of this Court in W.P.Nos.4478 of 1974, etc., holding several provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules inapplicable to minority institutions which necessitated the amendment of Rules by the Government for governing the minority schools vis-a-vis grant of recognition and aid. One of the contentions urged before us is that the State Government cannot frame Rules when the Court has struck down the provisions of the statute and the statutory Rules. There is no merit in this contention. The right of the State Government to frame Rules in the absence of any statutory provision has been recognised beyond doubt. It has been held in M/s. Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh, that if there is no enactment covering a particular aspect the Government can carry on the administration by issuing administrative directions or instructions until the Legislature makes a law in that behalf, as otherwise the administration would come to a standstill. We have also referred to the fact that appeals are pending in the Supreme Court at the instance of the Government against the judgment of the Division Bench. Obviously the Government is awaiting disposal of the said appeals for initiating other legislative measures. For the interregnum the Government has chosen to issue administrative instructions and the power to do so cannot be questioned. The matter has been further clarified by the Supreme Court in State of Sikkim v. Dorjee Tshering Bhutia, the Court said:
"......The executive power of the State under Article 162 of the Constitution of India extends to the matters with respect to which the Legislature of the State has power to make laws. The Government business is conducted under Article 166(3) of the Constitution in accordance with the Rules of Business made by the Governor under the said Rules the Government business is divided amongst the Ministers and specific functions are allocated to different ministries. Each ministry can, therefore, issue orders or notifications in respect of the functions which have been allocated to it under the Rules of Business". (Vide para 14) "The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the Legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though enforced, remained unworkable for about five, years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period. There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary we assume that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various functionaries under Article 166(3) of the Constitution of India there is possibility of lack of co-ordination amongst various limbs of the Government working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystallize the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power." (Vide para 15) ......It is argued that when the post of Principal/Headmaster or Subject Teacher in a Teacher Training Institution does not require high qualifications and the Government has fixed very high qualifications and made it impossible for the minorities to get persons with such qualifications, the provision is arbitrary and unreasonable and thus violative of Article 14 of the Constitution of India. We do not accept this contention. In the first place, it is fallacious to compare a teacher training institution with other educational institutions. We have already referred to the fact that teacher training institutions form a class by themselves. The qualifications required for the persons who handle the trainees in such institutions with a view to make them fit to become teachers should be necessarily higher than the qualifications fixed for the teachers in the other institutions. As a matter of policy the Government has fixed higher qualifications for meeting the standards of teacher training institutions. The action of the Government is well within the parameters of Article 30(1) of the Constitution."
The view taken by me in this case is in conformity with the expressed by the Division Bench of this Court in Roobasingh's case, 1993 WLR 544.
38. This is evident as the Payment of Grant Rules had been framed by the executive and not in terms of a statutory power. Thus it is clear that the Grant Rules in so far as it is contrary to the Private Schools Regulation Rules and even if there has been no amendment to the qualifications prescribed in respect of the Secondary Grade Teacher under Minority Schools Rules the Minority Schools Grant Rules will cease to operate and the Regulation Rules which prescribes the minimum qualifications for the post of Secondary Grade Teacher alone will prevail. Hence it is obvious that the writ petitioner who does not satisfy the requirement of Tamil Nadu Private Schools Regulation Rules but possess the qualifications for the post as provided in the Minority Private Schools (Regulation and Payment of Grant) Rules, cannot contend that she had been validly appointed or she possess the qualifications for the post.
As the Minority Schools Rules in so far as it conflicts with the statutory rule becomes inoperative and the Minority Schools (Regulation and Payment of Grant) Rules cannot be pressed into service nor it will advance the case of the petitioner in any view of the matter. Hence the contention raised by the respondents deserves to be sustained.
39. The learned counsel for the petitioner relied upon the decision of P.D. Dinakaran, J., in Mrs. Jemima v. The State of Tamil Nadu represented by its Secretary, Education Department and 3 others, in support of his contention that the qualification as found in the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules will be sufficient for all purposes and that a Teacher appointed should possess the qualifications as prescribed in the Grant Rules will be extended to equal wages as per the rules. P.D. Dinakaran,J., held thus:-
"8. However, clause 3 of Annexure III to the Minority Schools (Recognition and Payment of Grant) Rules read with Rule 8 of the said Rules prescribes the qualifications for appointment as teachers in minority schools (Regular). Clause 3 of Annexure III Grade as follows:
"3. Secondary Grade Teacher
(i) S.S.L.C
(ii) T.S.L.C. of Secondary Grade or its equivalent provided that the teachers who have passed the Nursery, Montessori and Kindergarten School Leaving Certificate Examination of Secondary Grade shall be employed to handle standards I to II only."
Admittedly, the fourth respondent school where the petitioner is employed, is a minority institution. Therefore clause 3 of Annexure III read with Rule 8 of the Minority Schools (Recognition & Payment of Grant) Rules is applicable to them. As per the qualification prescribed in the said rule, the petitioner is entitled to continue as Secondary Grade Teacher and to draw the salary payable to the Secondary Grade Teachers unless and until appropriate amendments are made by the Government for the said qualifications. It is not in dispute that as on date teachers with S.S.L.C., T.S.L.C. of Secondary Grade or its equivalent, provided that the teachers who have passed the Nursery, Montessori and Kindergarten School Leaving Certificate Examination of Secondary Grade shall be employed to handle standards I to II only, in which case the petitioner is fully qualified to be employed as a Secondary Grade Teacher as per clause 3 of Annexure III read with Rule 8 of the said Rules. Therefore it cannot be said that the very appointment of the petitioner as Secondary Grade Teacher has been erroneously made subsequent to the passing of G.O.Ms.No.564, Education, dated 20.3.1978 inasmuch as her appointment is fully protected under clause 3 of Annexure III to the Minority Schools (Recognition and Payment of Grant) Rules read with Rule 8 thereof.
9. That apart assuming that the Government as a policy decision decided to abolish the Higher Grade Teachers with an avowed object to improve the standard of education and to enable the teachers to improve their qualifications suitably as mentioned above, unless and until the qualifications prescribed under clause 3 of Annexure III to the Minority Schools (Recognition and Payment of Grant) Rules read with 8 of the said rules are suitably amended by the Government I am of the considered opinion, the petitioner, who is having the necessary qualification for the post of Secondary Grade Teachers and having been appointed as Secondary Grade Teacher in the fourth respondent minority school, she cannot be deprived of her salary payable to the Secondary Grade Teachers merely because she has not completed her in service training and she is entitled to the salary payable to the Secondary Grade Teachers continuously until the suitable amendments are made in the qualifications prescribed for the Secondary Grade Teachers under the Rules."
40. On the facts of the said case, the learned Judge had taken the view that the appointment of the Teacher therein appointed before the introduction of amendment is protected by the Minority Schools (Recognition Payment of Grant) Rules read with Rule 8 thereon and as the appointment was prior to the passing of G.O.Ms.564 Education, dated 20th March, 1978. With respect this Court adds that this pronouncement of the learned Judge has to be confined to the facts of the said case but it has no application to the facts of the present case. This is not the case here. This is an appointment which has been made after the coming into force of the statutory rule as amended and therefore when the petitioner does not possess the qualification prescribed under the said statutory rule, her appointment being invalid will not confer or clothe her with any right and the respondents are right in rejecting the request for approval.
41. Further there is no provision for grant of exemption under the Tamil Nadu Private Schools Regulations Act or the Rules framed thereunder and the Government also will not be in a position to relax the qualification in favour of the petitioner to hold the post. The decision of P.D. Dinakaran, J., relied upon by the learned counsel for the petitioner is clearly distinguishable. Further, with respect, this Court has to point out that the Learned Judge had not considered the scope of the statutory rule as against an administrative order or guideline. The statutory rule will have a overriding effect as against the administrative guideline or an order. Hence there is no escape for the petitioner.
42. It is not as if the petitioner's appointment is protected by the saving provision in the rule. Concedingly, the petitioner had been appointed after the coming into force of the rules framed under the Tamil Nadu Private Schools Regulation Rules and that too after the amendment and hence it is clear that the petitioner do not possess the qualifications prescribed for the post. It may be that such a view may work hardship to the petitioner, but there is no escape at all. The stand taken by the respondents 1 to 4 deserves acceptance.
43. In the circumstances, the writ petition fails and it is dismissed. Parties shall bear their respective costs. Consequently, connected W.M.Ps are also dismissed.