Madras High Court
R.C.Susai Higher Secondary School vs The Govt. Of Tamil Nadu on 21 March, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2012
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P. No.18044 of 2011 & M.P.No.2 & 3 of 2011
R.C.Susai Higher Secondary School
Rep. by its Correspondent
Kazhugumalai, Tuticorin District. ... Petitioner
Vs.
1 The Govt. of Tamil Nadu
Rep. by its Secretary to Govt.,
School Education Department,
Fort St. George, Chennai 600 009.
2 The Director of School Education,
College Road, Chennai 600 006.
3 The Chief Educational Officer,
Tuticorin District, Tuticorin.
4 The District Educational Officer,
Kovilpatti, Tuticorin District. ... Respondents
PRAYER: The writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari, to quash the G.O.Ms.No.144 School Education (D1) Department, dated 04.07.2008 and the proceedings of the Chief Educational Officer issued in Na.Ka.No.589/A3/2011 dated 16.3.2011 and consequential direction to the respondents to approve the appointment of R.Krishnaveni as B.T. Assistant in Science subject for VI standard to VIII standard in petitioner's school from 18.06.2007 to 21.04.2008 and then from 09.02.2010 onwards and to grant teaching grant and the arrears of teaching grant.
For Petitioner : Mr.R.Saseetharan
For Respondents : Mr.R.Ravichandran, A.G.P.
Mr.P.Karthikeyan, G.A.
*****
O R D E R
The petitioner is a religious minority School having been established and administered by the religious congregation of brothers of St. Gabrial, which is a Minority Educational Agency under Article 30(1) of the Constitution of India. The petitioner's School was recognised by the Government of Tamil Nadu and receives teaching grants under Tamil Nadu Minority School recognised Rules. The School was functioning as a Middle school upto the academic year 1980-81 and then was upgraded as High School and thereafter, higher secondary school.
2 It is pleaded case of the petitioner that initially for the middle School section i.e. Standards VI to VIII, the Secondary Grade Teachers were appointed to teach various subjects. In the year 2003, due to change of syllabus and to ensure better standard of education, decided to appoint B.Ed. qualified teachers in place of Secondary Grade teachers to teach students studying in VI to VIII for the subjects such as English, Maths and Science, apart from the language Tamil for which the post of Tamil Pandit was sanctioned.
3 The Government of Tamil Nadu issued instruction vide G.O.Ms.No.79 dated 14.6.2002 for appointing B.Ed. qualified teachers in place of Secondary Grade teachers by classifying them as Middle Grade Graduate Teacher. A provision was also made to grant one increment in addition in the scale of Secondary Grade Teacher post. The Government order further provided that the Chief Educational Officer/District Educational Officer shall distribute the post on the basis of strength and sections of the school in standards VI to VIII.
4 These instructions have been issued by the Education department to regulate the Government schools. It is not understood how the petitioner has placed reliance on these instructions, as these do not apply to an aided schools.
5 The Government therefore, decided to amend Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 by converting various categories of posts of teachers in all kinds of School to be Junior Grade Teacher who were to draw consolidated salary.
6 The G.O.Ms.No.125 dated 12.11.2003 reads as under:
School Education-Creation of Junior Grade Teacher Posts from the academic year 2003-2004-Amendment to Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974-Orders-Issued.
School Education (X2) Department
G.O.Ms.No.125 Dated: 12.11.2003
Read:
1) G.O.Ms.No.100 S.E. Department dt.27.6.2003
2) From the Director of School Education letter
Rc.No.57264/G7/2003 dated 6.10.2003.
------
The Government in the G.O. Read above have ordered that in view of the difficult financial position in the State vacancies arising from the academic year 2003-2004 in the various categories of teachers posts in all kinds of schools shall be deemed to have become as Junior Grade Teachers posts and allowed only consolidated pay as mentioned below:
Sl.No. Category Consolidated pay to be paid 1 Junior Grade Secondary Grade Rs.3000/- p.m. Teacher (including Physical Education Teacher and Specialist Teacher) (For Nursery, Montessori and Kinder Garden Junior Teacher Rs.2500/- p.m.) 2 Junior Grade B.Ed. Teacher Rs.4000/- p.m. (including language Teacher) 3 Junior Grade Post Graduate Rs.4500/- p.m. Assistant
2) In the said Government Order, it has also been indicated that necessary amendment will be brought to the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Accordingly, the Government issue the necessary amendments to the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974.
3) The appended Notification will be published in the Tamil Nadu Government Gazette:
(BY ORDER OF THE GOVERNOR) Leena Nair, Secretary to Government To The Director of Stationary and Printing, Chennai 1 (for publishing in the TNGG) The Director of School Education, Chennai-6.
6 By way of notification, provisions were also made for directing the School department of every private Schools to enter into an agreement with person appointed as Junior Grade Teacher. The Annexure V A of amended Rule also prescribed the qualification for appointment to the post. The amended rules also provides the qualification for appointment as Junior Grade Teachers in higher secondary school. The amended rules do not envisage the post of Secondary Grade Teacher as referred to in the affidavit filed in support of the petition.
7 The submission of the petitioner is that vacancy arose in the post of Secondary Grade Teacher on 14.06.2007. It is not disclosed in the pleading as to when the post of Junior Grade B.Ed. Teachers were upgraded in private management school.
8 The vacancy arose due to resignation of Thiru J.Paul Valanarasu, on 01.06.2003 i.e. after amendment of Rule 16 vide G.O.Ms.No.125 dated 12.11.2003. Therefore, it was required to be filled up by B.Ed. qualified candidates.
9 The petitioner School appointed Tmt.R.Krishnaveni as B.T. Assistant from 18.06.2007 for Science subject as she holds B.Sc. Degree in Physics with B.Ed. For want of payment of salary, the appointed teacher was relieved on 21.04.2008, and again appointed on 09.02.2010.
10 The proposal for approval was sent on 15.09.2010. The petitioner explained the circumstances justifying the requirement of B.T. Teacher in Physics.
11 The proposal submitted by the petitioner was rejected vide order dated 16.03.2011, on the ground that as per the subject-wise rotation, the vacancy which arose on resignation of Thiru J.Paul Valanarasu being third vacancy, was to be filled up by candidate qualified in English subject.
12 It was also mentioned that though the teacher resigned on 14.6.2007, but his resignation was approved only on 15.09.2010. Therefore, vacancy could be filled up only after 15.09.2010.
13 The submission of the petitioner is that for the purpose of teaching grant and appointment of teachers in Middle School section, the District Educational Officer is the competent authority. The Chief Educational Officer passed the order on 16.03.2011.
14 The Government of Tamil Nadu issued G.O.Ms.No.244 dt.22.09.2007 which reads as under:
"GOVERNMENT OF TAMIL NADU ABSTRACT School Education Subordinate Services For teaching Tamil in classes 6, 7, 8 the 33.33 pecentage is recruited form open competition and 66.33 is filled through by promotion rule is changed as Secondary Grade teachers with qualification in Tamil BT will be promoted Orders Issued.
School Education (Va Se-2) Department
G.O.(Ms.)No.244 Dated: 22.09.2007
Read:
1) G.O.Ms.No.100, School Education Department,
Dated 27.06.2003
2) Letter from Director of School Education,
Rc.No.2111/C5/S1/2007 Dated 17.07.2007
14.06.2007 and 09.08.2007.
------
ORDER:
As per the Government Order 100, School Education Department Dated 27.06.2003, the permanent vacancies of Secondary Grade posts in classes 6, 7, 8 will be treated as vacant BT posts. As per the rules existing in force, in School Education Department, the vacancies are filled as 50% from the open competition direct recruitment and 50% through promotion. The BT (Tamil) posts are filled as 66.66 % from promotion and 33.33% by direct recruitment.
2 The Tamil Nadu Primary and Middle School Graduate Teachers Association submitted the following demands to the Government:-
In Tamil Nadu, the Schools under all management under Elementary Education Department, 7200 Middle Schools are existing, among these 500 Middle Schools only the Tamil Teachers are appointed to teach Tamil in classes 6, 7, 8. Remaining 6,700 Middle Schools no Tamil Teachers were appointed to teach the Tamil subject, but the Secondary Grade Teachers are teaching the Tamil. In the existing 6,700 Middle Schools under Elementary Education Department, orders to be issued, without going into the students ratio, the Secondary Teachers with Tamil graduation are to be promoted as Tamil Teachers to teach Tamil language in classes 6, 7, 8.
The Secondary Grade Teachers with the qualifications in History and Geography subjects, be promoted to teach the subjects of History, Geography and English.
3 The Director of School Education, in his note, have submitted that for promotion to the post of B.T. Assistant the feeder category is Secondary Grade teacher posts. The Secondary Grade Teachers are possessing the qualification for promotion to the post of BT Assistants. In so far as the post of BT (Tamil) without going into the rule of 66.66% is filled through promotion and 33.33% is filled through direct recruitment, the Secondary Grade Teachers with the qualification to be promoted as Tamil Teacher may be selected according to the existing vacancies to fill up post of Tamil Teachers. In G.O.Ms.No.106 School Education Department Dated 27.06.2003, it is mentioned that in classes 6, 7,8 English, Science, Maths qualified BT teachers only given preference for appointment. But, other teachers are not given opportunity for the appointments. In this concern, the preference should be given to other subjects also other than the subjects of Maths, Science and English.
4 The Government, after careful consideration, of the demands by the Elementary and Middle School Graduate Teachers Association and the proposals of the Director of School Education and orders as follows:-
(i) The rules will be followed to promote the BT (Tamil) qualified Secondary Grade Teachers will be promoted as Tamil Teachers instead of filling the vacant post of Tamil Pandit as 66.66% through promotion and 33.33% through direct recruitment.
(ii) The qualified Teachers should be promoted to the vacant subject posts. If not availability of particular subject teacher posts, prior permission from the Government to be obtained to fill the said post through direct recruitment from Employment Exchange.
(iii) After promotional vacancies, the vacancies arising in Secondary Grade posts are to be filled through direct recruitment.
(iv) Instead of giving preference to fill the post of English, Science and Maths to teach in the classes 6, 7, 8 other subjects also will be given preference for appointment other than the subjects of Maths, English and Science.
5 Accordingly, the Director of School Education is requested to send the proposal to make amendments to the para 5 cited above.
(By order of the Governor) KUTRLINGAM Secretary to the Government To The Director of School Education, Chennai 6 The Director of Elementary Schools, Chennai 6.
P.A. To the Hon'ble Minister of School Education.
School Education (VaSe.2) Department.
School Education (X) Department (for action) sd/-xxxx Section Officer"
15 These are again Government instructions issued by the Government of Tamil Nadu for appointment of B.T. Teachers in place of Secondary Grade teachers on subject wise rotation. It is not understood, how these instructions were applicable to the case of the petitioner, as the petitioner School is governed by Tamil Nadu Recognised Private School (Regulation) Act, 1973.
16 The case of the petitioner is, that thereafter Government issued G.O.Ms.No.144 to give clarification regarding Government aided School. The G.O.Ms.No.144 dt.4.07.2008 reads as under:
GOVERNMENT OF TAMIL NADU ABSTRACT School Education-Government Aided Schools G.O.Ms.No.244, School Education, Dated 22.09.2007 Clarifications regarding Government Aided Schools Orders Issued.
School Education (D1) Department
G.O.Ms.No.144 Dated: 04.07.2008
Read:
1) G.O.Ms.No.244, School Education (Va Se-2) Department
Dated 22.09.2008
2) Letter from Director of School Education, Rc.No.95088/ G3/S2/07 Dated 21.12.2007 ORDER:
In the Government Order first read above, in paragraph No.4(vi) is ordered as below:
The persons who qualified in B.Ed. Are appointed to teach in classes 6,7, 8 for the subjects of English, Science and Maths graduate teachers are given preference for the vacancies. In future, preference will be given those who qualified other than Maths, English and Science also.
2 In the letter second cited above, from the Director of School Education has mentioned that in the said order the subject-wise posts were not fixed since the subject for classes 6 to 10 is measured as Single Unit the Secondary Grade vacant post are converted as graduate post as per the requirement and qualification for the required subject. The power of delegation may be delegated to the Chief Educational Officer for converting the Secondary Grade vacant post as subject-wise BT post, a condition may be imposed to this effect as once the subject is finalised by the Chief Educational officer (Tamil, English, Maths and Social Science), the subjects again should not be changed in future. Appropriate amendments will be issued for the Tamil Nadu recognised private schools (Regulations Act 1974 for rule 15(1).
3 After careful consideration, the Government accepts the recommendations of the Director of School Education in para 2 above.
(i) The Government Order 244 School Education, Dated 22.09.2007 in para 4 (vi) is applicable to the schools getting grant-in-aid from the Government.
(ii) In the Government aided schools classes from 6 to 10th are measured as a single scale for the permanent vacant in Secondary Grade posts. The Chief Educational Officers are empowered to convert the said vacant Secondary Grade post as BT assistant as per the requirement and qualification for the said school.
(iii) Once the subject (Tamil, English, Maths, Science and Social Science) posts are converted by the Chief Educational Officer under no circumstances the said post will be again reconverted in future.
4 For the above para 3, separate orders for amendment to the Tamil Nadu Private Schools Regulation Act 1974 will be issued.
(By Order of the Governor) KUTRLINGAM Secretary to the Government To The Director of School Education, Chennai 6 The Director of Elementary Schools, Chennai 6.
P.A. To the Hon'ble Minister of School Education.
School Education (VaSe.2) Department.
School Education (X) Department (for action) sd/-xxxx Section Officer"
17 By way of Government orders, unfettered powers are given to the Chief Educational Officer to decide the need of the posts for school on the subject-wise with further stipulation that once decision is taken it cannot be varied or modified.
18 The petitioner submits that it is a minority institution and therefore, is entitled to protection under Article 29 and 30 of the Constitution of India which gives fundamental right to the petitioner School to establish and administer school by virtue of protection without any interference by the Government. Under the Constitutional protection, the petitioner has fundamental right to administer the school without interference in internal administration by the Government of Tamil Nadu, and its officers.
19 The submission of the petitioner is that to assess the need of the School for a particular subject, the decision has to be taken by the School by exercising due care keeping in view the interest of the students, as it is School management alone which is in a position to assess the need of the school and decide the subject in which teachers is to be appointed depending on the existing strength of teachers and the students.
20 The petitioner submits that G.O.Ms.No.144 dated 04.07.2006 amounts to interference with the internal administration of the petitioner's religious minority institution and therefore, is violative of Article 14, 29 and 30 of the Constitution of India.
21 It is submission of the petitioner that regulating the appointment of particular category of teacher by the Government amounts to direct interference with the internal administration of the Minority institution, which is not permissible, in view of Article 29 and 30 of the Constitution of India.
22 The submission of the petitioner is that management is the best Judge to decide the need of the school, and the particular teacher to be appointed.
23 It is also the submission of the petitioner that vacancies in the post of Secondary Grade teacher arose on 14.06.2007 due to resignation of incumbent, therefore, post could not be kept vacant till approval by the authorities. as it affects the education of the students. Therefore, Tmt. R.Krishnaveni was appointed as B.T. Assistant against the available vacancy.
24 The submission of the petitioner is that The Tamil Nadu Private School (Regulation) Act, 1973 provides for approval and termination, which includes resignation with an object to ensure protection for employment of the teachers which does not stands in the way of management to appoint new teacher against available vacancy which may occur due to the resignation.
25 The submission is that appointment of Tmt.R.Krishnaveni as B.T. Assistant on 8.6.2007 deserves to be approved from the date of her appointment.
26 The Constitutional validity of G.O.Ms.No.144 dt.04.07.2008 is also challenged on the ground that it gives unfettered powers to the Chief Educational Officer and is contrary to the object sought to be achieved, thus, ultra vires the Constitution of India.
27 The Writ petition is opposed by the respondents. In the counter filed the stand taken is as under:
It is submitted that the above writ petition has been filed for issuance of a mandamus seeking to quash G.O.Ms.No.144, School Educatioon (D1) Department dated 4.7.2008 and the proceedings of the third respondent, the Chief Educational Officer, issued in Na.Ka.No.589/A3/2011 and to issue a consequential direction to the respondents to approve the appointment of R.Krishnaveni as B.T. Assistant in science subject for standards VI to VIII in petitioner's school from 18.6.2007 to 21.4.2008 and then from 9.2.2010 onwards and to grant teaching and arrears of teaching grant.
28 With regard to the averments vide para 3 of the affidavit, it is submitted that prior to 1.6.2003 teachers possessing Higher Secondary and T.S.L.C./Diploma in Teacher Education were handling classes I to VIII and they were teaching all the subjects, namely Tamil, English, Mathematics, Science and Social Science for students. Government considered that the secondary Grade Teachers were not able to handle the subjects in English, Mathematics and Science for classes VI, VII and VIII in Middle schools, High Schools and Higher Secondary Schools under all kinds of managements as the syllabus has been revised and hence the quality of education at the primary level is affected. Keeping this in view Government passed vide G.O.Ms.No.79, School Education dated 14.6.202, wherein it was ordered that from the academic year 2002-2003 wherever a vacancy of Secondary Grade teacher post arises on account of retirement or resignation or due to promotion or for any other reason, Middle Graduate Teacher posts shall be created in phased manner in lieu of such vacant Secondary Grade teacher posts and with effect from 1.6.2002 B.Ed. Qualified teacher would be appointed with Secondary Grade Teacher scale of Pay with an advance increment.
29 Subsequently, it was ordered vide G.O.Ms.No.100, School Education department dated 27.6.2003 that since already B.Ed. teachers are appointed for standards IX and X and to avoid two types of appointments in B.Ed. Cadre, in future in all types of schools, only B.Ed. qualified teachers should be appointed in Standards VI to X for the subjects English, Science, Mathematics and History and Geography. It was further ordered therein that when permanent vacancies of Secondary Grade teachers in Std. VI to VIII arise B.Ed. Qualified teachers will be appointed in a phased manner. In the first phase B.Ed. Teachers will be appointed for Mathematics, Science and English subjects. The services of the existing Secondary Grade teachers should be utilized to teach all subjects till all the Secondary Grade Teachers should be utilized to teach all subjects till all the Secondary Grade teacher posts are converted as B.Ed., teacher posts. Further, it is stated in the above G.O. that inasmuch as Graduate teachers alone will be appointed for Std. VI to X Secondary Grade teachers will be appointed for Std. I to V only in future. The above G.O. also envisaged for appointment of Junior grade Secondary Grade teachers and specialist teachers. Junior Grade B.Ed. Teachers and Junior grade Post Graduate teachers on consolidated pay with effect from 1.6.2003. It is ordered there inter alia that necessary amendments will be issued to the relevant service Rules and there shall be difference in workload among the teachers regularly appointed and those appointed on consolidated pay.
30 In pursuant to this, amendment to the Tamil Nadu Recognised Private Schools (Regulation) Rules was issued vide G.O.Ms.No.125, School Education, dated 12.11.2003. Therefore, in view of the above B.Ed. Teachers were appointed for std. VI to X after 1.6.2003 in Middle school, High school and Higher secondary schools under all types of management in the subjects Mathematics, Science and English.
31 With regard to the averments in para 4 of the affidavit it is submitted that the petitioner school is a recognised Higher Secondary School having std. VI to XII. While grant in aid from State funds is provided for standards VI to X by way of staff grant, standards XI and XII are run by the management on self financing basis.
32 It is submitted that the petitioner's school was a Middle school upto the academic year 1980-1981 and was upgraded as high School from 01.06.1981. Thiru M.Joseph was working as Headmaster of the Middle School prior to its upgradation as High School.
33 Government vide G.O.Ms.No.1429, Education dated 28.7.1980 ordered that a Graduate Teacher or a Tamil pandit shall be appointed as a Headmaster of the Middle School and the existing Secondary Grade Headmaster working in the Middle Schools will be re-designated as additional headmasters and he will be given full salary protection as if he is continuing as a headmaster. It is further ordered therein that the senior most qualified teacher possessing B.Ed or Tamil pandit qualification be appointed as Headmasters and the earlier headmasters will be treated as Additional Headmasters, with pay protection.
34 Consequent to upgradation of the petitioner school as a Middle School, one B.T. Grade Headmaster was appointed and the person working in the Middle school was designated as Additional Headmaster. It is submitted that consequent to the retirement of Thiru M.Joseph on superannuation on 31.05.2000, the management appointed one Thiru Raviselvam with effect from 05.06.2000 as Secondary grade Teacher against the said retirement vacancy. Consequent to the resignation of Ravi Selvam on 6.6.2001, one Thiru J.Paul Valanarasu was appointed as Secondary Grade Teacher from 01.08.2001. The approval to the appointment of Thiru Ravi Selvam could not be granted by the respondents 2 and 4 herein on the ground that the post of Additional Headmaster will lapse on retirement of Thiru M.Joseph.
35 The orders dated 15.2.2005 and 20.4.2005 passed by the respondents 2 an 4 herein, respectively, were challenged by the petitioner herein by way of filing W.P.No.29037 of 2005 before this Court for issuance of a mandamus seeking to quash the above said orders and to direct the respondents therein to accord approval to the appointment of Thiru J.Paul Valanarasu as Secondary Grade teacher from 01.08.2001.
36 This Court vide order dated 24.04.2008 made in W.P.No.29037 of 2008 was pleased to allow the writ petition with direction to approve the appointment of Thiru J.Paul Valanarasu as Secondary Grade teacher from 1.8.2001, if he is otherwise eligible.
37 Pursuant to this direction Government issued orders vide G.O.(2D) No.77, School Education dated 29.12.1999, directing the Director of School Education, to approve the appointment and accordingly approval to the appointment of Thiru J.Paul Valanarasu as Secondary Grade teacher with effect from 1.8.2001 was accorded by the District Educational Officer, Kovilpatti vide Na.Ka.No.8300/A3/08, dated 10.4.2010 whie so, Thiru J.Paul Valanarasu resigned on 14.6.2007.
38 It is submitted that though Thiru J.Paul Valanarasu was appointed as Secondary Grade teacher from 1.8.2001, approval to the appointment was granted by the District Educational Officer, Kovilpatti, the fourth respondent herein only on 10.04.2008 made in W.P.No.29037/2005. Subsequently, when the said Thiru J.Paul Valanarasu resigned on 14.6.2007, approval to his relief was given by the District Educational Officer, Kovilpatti on 15.9.2010.
39 It is submitted that without approving ones appointment relief from duty consequent to the resignation could not be granted. Hence the petitioner management is entitled to fill up that vacancy and appoint a teacher against that vacancy only thereafter, namely after 15.9.2010. But in the present case the petitioner management on its own volition appointed R.Krishnaveni, B.Ed. Teacher on 18.06.2007, for science subject.
40 With regard to the averments vide para 5 of the affidavit, it is submitted that the competent authority to release monthly staff grant to aided High schools and Higher Secondary School is the District Educational Officer concerned as laid down in the Tamil Nadu Recoginised Private Schools (Regulation) Rules 1974, vide Rule 9 and Annexure III and the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977.
41 It is submitted that Government issued orders vide G.O.Ms.No.244, School Education dated22.9.2007, wherein it was stated inter alia vide para 4(iv) that instead of giving priority in appointment of B.Ed., teachers for Stds. VI to VIII possessing B.Ed. In English, Science and Mathematics subjects, in future priority shall be given for appointment for stds. VI to VIII also for the subjects in Mathematics, English and Science.
42 Subsequently, orders were issued by Government vide G.O.Ms.No.144, School Education dated 4.7.2008 in regard to conversion of Secondary Grade teacher posts that fell vacant permanently and treating stds. VI to X as one unit in aided schools as under:-
(i) orders issued in para 4(vi) of G.O.Ms.No.244, School Education, dated 22.9.2007 are applicable to aided schools also.
(ii) In aided schools, treating standards VI to X as one unit, as and when permanent vacancies in the post of Secondary Grade teachers arise, the Chief Educational Officers are empowered to convert the posts as B.Ed., teachers in the subject based on need and merit and
(iii) Once the subject against the B.Ed. Teacher (Tamil, English, Mathematics, Science and Social Science) is fixed by the Chief Educational Officer, it should not be changed in future under any circumstances.
43 It is submitted that as averred vide para 5 of the petitioner that the new G.O.Ms.No.144, dated 7.4.2008 is issued which gives unfettered and unlimited power to the Chief Educational officer to decide the need of the post for the School on subject wise is not correct and the same is denied. It is submitted that prior to issuance of G.O.Ms.No.79, Education dated 14.6.2002, all the subjects namely English, Mathematics, Science and Social Science for Stds. VI to VIII in Middle Schools, high Schools and Higher Secondary schools under all kinds of managements were handled by Secondary Grade Teachers. Consequent to revision, the syllabus for these classes was enriched and it was considered that the revised syllabus cannot be handled by the Secondary Grade teachers with Higher Secondary and Diploma in Teacher Education qualification. Hence, as per policy decision taken by the Government, B.Ed. qualified teachers should be appointed to handle Stds. VI to VIII to teach English, Mathematics and Science subjects and as a consequence of this decision G.O.Ms.No.100, dated 27.6.2003 came to be issued. According to this, in future from 1.6.2003, whenever secondary Grade teacher posts arise due to retirement, resignation, death etc. those posts will be converted as B.Ed. Teachers and there will not be any appointment of Secondary Grade teachers for standards VI to VIII, but only for Stds. I to V. such B.Ed. teachers appointed for Stds VI to VIII were initially called Junior Grade B.Ed. Teachers to distinguish from the regular B.Ed teachers appointed for Std. IX and X. These Junior Grade B.Ed. Teachers initially appointed as contract basis for a period of 5 years and were paid Rs.4000/- p.m. as consolidated amount.
44 However, these Junior Grade B.Ed. Teachers were subsequently brought into regular time scale of pay with effect from 1.6.2006. Subsequently, Stds. VI to X are treated as one unit as per G.O.Ms.No.144, School Education dated 4.7.2008. It was considered by Government that the quality teaching in Stds. VI to VIII should be ensured to achieve this object B.Ed., qualified teachers are appointed. The quality teaching cannot be restricted to one or few subjects alone, but it should be provided to all subjects namely Tamil, English, Mathematics, Science and Social Science. The students should have the benefit of getting best teaching by qualified teachers in all subjects. Hence, with a view to ensure that teachers are available to provide teaching in all subjects in Std. VI to VIII subjects roster is prescribed. The objective behind prescribing subject roster is that students are not denied the opportunity of learning any subject for want of qualified teacher. Hence, the subject roster scheme is subject oriented and no person oriented. If the choice of selecting the subjects is given to the managements, there may be more than one teacher available for one and the same subject, whereas there may not be any teacher available to teach another subject. By fixing this subject roster based on the need and merit in a school in terms of G.O.Ms.No.144, dated 4.7.2008 the students get the valuable benefit of learning all subjects. Hence, G.O. is sustainable. Therefore, fixing of subject roster is a reasonable regulation in the interest of efficiency of education.
45 With regard to the petitioner averments vide paras 6 and 7of the affidavit that the G.O.Ms.no.144, dated 4.7.2008 which confers unfettered power on the Chief Educational Officer to decide the need of the School and the subject for which the teacher to be appointed and the further direction embodied in the said G.O. to the effect that once the decision is taken by the concerned Chief Educational Officer, the said decision shall not be varied or modified, is the direct interference with the internal administration of the petitioner's religious minority institution and the same is violative of Article 14, 29 and 30 of the Constitution of India, is not correct and the same is denied.
46 It is further stated that this Court vide order dated 30.4.1998 made in W.A.No.275, 1037/99 and W.P.No.7193 and 7235/85, rendered by the Hon'ble Full Bench observed vide para 23 as under:
"23 In A.I.R. 1990 Kerala 356, while dealing with the right to appointment of a Headmaster in a minority school, it was observed that interference in the right to appoint would be making an in road in the right to administer which is again not the case on hand or the questions required to be answered. It was further observed that the requirement to satisfy the test of qualifications, experience, essential for the qualities of good teachers would not suffer from the voice of violation of Art.30 of the Constitution of India. It was observed that the regulations in the interest of efficiency, discipline, health, sanitation, morality, public order are not restriction in subsistence on the right of minority institutions. It has been further observed that the protection of Art.30 of the Constitution would not further be available to the aided schools, while relying on the decision reported in A.I.R. 1974 Supreme Court 1389 (Ahamadabad St. Xavier college Society v. State of Gujarat) it has to be held that the right to administer does not refer to or include right to administer and prescribing the manner of administration were taken conceptually different."
47 It is submitted in the context that development of law to meet the ground realities keeping in view of the mandate of the Constitutions, it has become axiomatic that aided institutions have to abide by the rules and regulations which are framed by the Government and/or by the affiliating authorities in the matter of recruitment of teachers, staff, their condition of service, standard of teaching, which are the condition for grant-in-aid or for recognition.
48 It is submitted further that with reference to 1993(1) SCC 645, it has been held that there is no difference in minority and non-minority school teachers with reference to service conditions.
49 It is further submitted that this Court vide order dated 8.9.1999 made in W.P.No.16914/98 in Mercy Matilda vs. Director of School Education and others while dealing with refusal by the management of a minority school, to promote a teacher as P.G. Assistant inter alia as under vide para 89.
"89. In All Bihar Christian schools Association and another v. State of Bihar reported in 1988(1) SCC 206, the Hon'ble Supreme Court had occasion to consider the validity of section 18(3) of the Bihar Non-Government Secondary Schools (Taking over management and Control) Act 1981. His Lordship while pointing out the object, purpose underlying the said provision held that it is to ensure that the teachers appointed in the minority school should possess requisite qualification and they are appointed in accordance with the procedure prescribed and the appointments are made for the sanctioned strength besides pointing out that qualified teacher in a minority school is sine qua non for achieving educational standard and better administration of the school."
90 The Hon'ble Supreme Court also had occasion to consider as to whether clause (e) of section 18 of the said Act which is against appointment of a mentally and physically incapacitated person as Teacher or non-teaching staff is in the interest of the administration of a minority school itself. In that context, the minority institutions were categorized into three classes and it has been held thus:-
9. In view of these decisions, it is now well settled that minorities based on religion or language, have fundamental freedom to establish and manage Educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring Educational excellence, conditions of employment of teachers, ensuring health's hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities fundamental right of administering their educational institution; instead, they seek to ensure that such institution is administered efficiently, and that students who come out of minority institutions after completion of their studies are well equipped with knowledge and training so as to stand at far in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities' right of administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves. If the minority institution seeks affiliation or recognition from the State or Educational Board, the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants-in-aid. Minority institutions may be categorized in three class as:-
(i) Educational institutions which neither seek aid nor recognition from the state,
(ii) Institutions that seek aid from the State, and
(iii) educational institutions which seek recognition but not aid.
50 Minority institutions which fall in the first category are free to administer their institutions in the manner they like the state has no power under the Constitution to place any restriction on their right to administration. This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law, tax measures, economic regulation, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the state may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid, these conditions may require minority institutions to follow prescribed syllabus for examination, courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters.
51 The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; Otherwise, the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their right of administration to the Government.
52 On the one hand the State is under an obligation to ensure that educational standards in the recognized institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society and to ensure that the public funds disbursed to the minority institutions are properly utilized for the given purpose. On the other hand, the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying on of administration of institution of their choice.
53 In order to reconcile these two conflicting interests, the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions."
54 It is further submitted that in the judgment cited the Hon'ble Supreme Court observed vide para 93 as thus:
"93 While following the St. Stephens Collage (viz. The Five Judges Bench of the Apex Court in St. Stephens College vs. University of Delhi reported in 1992(1) SCC 558, a Division Bench of this Court as well as Jayasimha Babu J. had taken the view that with respect to the appointment of teachers employed in minority institutions, the State could very well regulate and the same would not violative of Article 30(1) of the Constitution.
55 With regard to the contention vide para 7 of the affidavit that out of the 7 teachers working in the sanctioned posts in the petitioner school, two Secondary grade teachers are working and two B.Ed. Teachers , one in Mathematics and the other in Science (Botany) subjects are working. In the existing vacant post, the management appointed a B.Ed. Qualified teacher. According to the orders issued in G.O.Ms.No.144 dated 4.7.2008, a B.Ed. Teacher qualified in English ought to have been appointed in that vacancy.
56 In so far as non minority school is concerned, it is governed under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules 1974, made thereunder. In terms of the requirement in the said rules, vide sub rule (4) of Rule 15, in so far as Higher Secondary school is concerned, permission is required to be obtained from the Chief Educational Officer concerned before filling up a vacant post.
57 But the petitioner school being minority school the above rule is not made applicable to it. Had the school applied for seeking permission to fill up the vacancy caused due to the resignation of Thiru J.Paul Valanarasu the petitioner school would have been informed that B.Ed. candidate of English subject should be appointed. But taking advantage of its minority status and also in view of non application of the aforesaid Rules to the school, the petitioner management on its own volition appointed R.Krishnaveni, B.Ed. Teacher for Science subject.
58 Though as averred by the petitioner vide para 7 of the affidavit that it is the management which is the best Judge to decide the need of the school and which particular subject teacher has to be appointed due to change of scenario from 01.06.2003 that B.Ed. Teachers only should be appointed for Stds. VI, VII and VIII in all types of Middle schools, High Schools and Higher Secondary Schools in pursuant to G.O.Ms.No.100 dated 27.06.2003, G.O.Ms.No.125 dated 12.11.2003 and G.O.Ms.No.144 dated 4.07.2008, the State has an obligation to ensure that the benefit of quality teaching reaches all children for all subjects, namely Tamil, English, Mathematics, Science and Social studies. The importance cannot be expected to centre around a single subject as contended by the petitioner. The children studying in Std. VI to VIII are expected to be provided quality teaching by B.Ed. Graduate teachers in all subjects in a wholesome manner to ensure that the children attain educational excellance to keep in step with others in the State. Hence keeping this in view the Government issued orders vide G.O.Ms.No.144, School Education, dated 4.7.2008 fixing the subject roster for appointment of B.Ed. Teachers in standards VI to X, treating it as one unit.
59 The petitioner's contention that the prescription of the Chief Educational Authority is the competent authority to assess the need of the school and the subject to which B.T. Teachers is to be appointed in the Management school particularly in the minority school is the direct interference with the internal administration of the management of the petitioner minority institution is therefore, for the reasons as stated supra, is not maintainable.
60 With regard to the petitioner averment that once the resignation is approved by the competent authority, which relates back to the date on which the concerned teacher submits his resignation and therefore the petitioner management has got every right to appoint R.Krishnaveni as a B.T. Assistant on 18.6.2007 and her appointment has to be approved from the date on which she is working at B.T. Assistant in Science subject is not correct, especially in the facts and circumstances of the case. Approval to resignation of a teacher can be granted by the competent authority only after approval to the appointment is granted to the teacher.
61 In the present case, the petitioner management appointed one Thiru J.Paul Valanarasu as a Secondary Grade teacher with effect from 1.8.2001 against the vacancy caused due to retirement of one Thiru M.Joseph who was working as Headmaster of the Middle school, prior to its upgradation as High School. Approval to the appointment of Thiru J.Paul Valanarasu was refused vide proceedings Na.Ka.No.109318/ D1(3)/2002, dated 15.2.2005 of the Director of School Education, Chennai 6 and Mu.Mu.No.3341-A1/2004, dated 20.4.2005 of the District Educational Officer, Kovilpatti.
62 The petitioner management challenged the above orders by way of filing writ petition before the Hon'ble High Court in W.P.No.29037 of 2005, seeking to quash the same and to direct the respondents to accord approval to the appointment of Thiru J.Paul Valanarasu, working as a Secondary Grade teacher in R.C. Susai Higher Secondary school with effect from 1.8.2001 with all monetary and service benefits.
63 This Court vide order dated 24.4.2008 made in W.P.No.29037 of 2005 was pleased to allow the writ petition.
64 In pursuance to the direction issued by this Court, Government, the first respondent in the above writ petition, passed orders vide G.O.(2D) No.77 school Education, dated 29.12.2009 passed order permitting the Director of School Education to approve the appointment of Thiru J. Paul Valanarasu. Accordingly, approval was granted by the District Educational officer Kovilpatti on 10.4.2010. Subsequently, approval to the resignation of Thiru J.Paul Valanarasu was granted by the District Educational Officer, Kovilpatti on 15.9.2010 and as such the eligibility to fill up that vacancies will arise only after 15.9.2010. Therefore, approval to the appointment of Tmt. R.Krishnaveni from 18.6.2007 cannot be granted.
65 With regard to the averments raised vide para 9, grounds (i) to (xii) (iii), it is submitted by the G.O.Ms.No.144 dated 4.07.2008 and the order of the Chief Educational Officer dated 16.3.2011 is legally sustainable, the Government orders pertaining to appointment of B.Ed. Teachers in std. VI to VIII with effect form 1.6.2003 and fixing subject roster does not interfere into the rights of the minority management but, on the other hand is only with a view to ensure important quality education in all subjects, namely Tamil, English, Mathematics, Science and Social studies to the poor children without ignoring any one subject and therefore the Government orders are maintainable.
66 For the above said reasons, the writ petition is not maintainable either in law or on facts and deserves to be dismissed.
67 The reading of the counter filed hereinabove shows, that it is in the nature of written arguments, then to meet the contentions raised in the writ petition. The respondents may be right in contending that laying down of rules cannot be amount to interference with administration of minority institution.
68 But the challenge of the petitioner to G.O.Ms.No.144 is on the ground of want of jurisdiction, and on the ground that it is arbitrary and has no nexus with the object sought to be achieved. This important aspect has not been answered in the counter.
69 The learned counsel for the petitioner challenged the G.O.Ms.No.144 dated 4.7.2008 to be violative of Art.14 of the Constitution of India on the ground that it has no nexus with the object sought to be achieved.
70 The learned counsel for the petitioner also challenged the impugned order of the respondents in not approving appointment of the teacher, on the ground that the executive instructions cannot override statutory rules.
71 The contention of the learned counsel for the petitioner therefore was that once the Tamil Nadu Recognised Private School (Regulation) Act, 1973 does not contemplate roster, the same cannot be introduced by way of executive instructions. In support of this contentions, the learned counsel for the petitioner placed reliance on the Hon'ble Division Bench judgment of this Court in W.A.No.1198 of 2007 decided on 20.09.2007 (State of Tamil Nadu and others vs. The Correspondent, TELC Middle School, Villupuram) laying down as under:
"3 In fact the legal implication of the said proceedings dated 26.10.2004, was considered by this Court in the light of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (in short T.N.Act 29 of 1974) in the Correspondent, Birtannia Higher Secondary School, Chennai vs. State of Tamil Nadu, rep. By its Secretary, Department of School Education, Chennai and others (2007(2) MLJ 760), and held that the said Act 29/74 does not contemplate any subject roster to be followed regarding the appointment of Middle Grade Graduate teachers. That was also the decision taken earlier by the Madurai Bench of Madras High Court in the Corporate Manager, CBI Corporate Schools vs. State of Tamil Nadu (2006(5) CTC 504). It was also considered in the above said cases that the executive instruction cannot supersede the statutory provision, by relying upon the decision of Supreme Court in B.N.Nagarajan vs. State of Karnataka (1979) II LLJ 209(SC), which was subsequently reiterated by the Hon'ble Supreme Court in V.Sreenivasa Reddy vs. Government of A.P. (AIR 1995 SC 586). Therefore, by virtue of the above said judgments, it is the categoric decision of this Court that the proceedings of the second appellant dated 26.10.2004 by imposing subject roster in making appointment is not valid and is in violation of the provisions of the Act 29/74. In view of the same, there is absolutely no reason to interfere with the order of the learned single Judge. Consequently, the writ appeal fails and the same is dismissed with direction to the appellants to approve the appointment of V.J.Titus Prabhakar (Mathematics) with effect from the date of his appointment with salary and other benefits within a period of four weeks from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is closed."
72 The learned counsel for the petitioner also challenged the impugned order on the ground that it was not open to the respondents to consider the post vacant only from the date of acceptance of resignation.
73 There is force in the contention of the learned counsel for the petitioner. The procedure cannot defeat justice. Once it is not disputed that the teacher after resignation left the service, the school cannot be debarred from appointing new teacher on the post in the interest of students. The respondents therefore, were bound to approve the appointment from the date of initial appointment, as admittedly, no grant was released to the teacher, who after resignation had left the service. The respondents are therefore, not justified in holding that the approval could not be granted from the date of initial appointment.
74 The writ petition is opposed by the respondents on the ground that the minority institutions are also bound by the law and therefore, cannot claim immunity from enforcement of law, in the garb of interference with the administration of school. There can be no dispute with this proposition, but the question is how this question arises in this case.
75 On consideration, this Court finds that the writ petition deserves to succeed.
76 Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 has been enacted to regulate the recognised private schools in the State of Tamil Nadu.
77 The permission for establishment and management of private school is regulated under Chapter II of the Act. The protection to minority institution is also given under the Act.
78 The private schools are recognised as per the provisions under Chapter III of the Act. The act also takes care of School committee and its constitution and functions.
79 The power is also given to State Government to appoint Special officer in the event of mismanagement or for violating the provisions under Chapter IV A. 80 The chapter V of the Act deals with the terms and conditions of the service of teachers and other persons employed in public schools.
81 The Government is authorised to make rules relating to number, qualifications and conditions of service of the teachers and other persons employed in schools by virtue of Sec.19 of the Act.
82 The service conditions are also regulated by the Act. The Act also takes care to control of private schools, and deal with the penalties and procedure and also regulates the fee structure etc. 83 Under Sec.51 of the Act, the Government is authorised to delegate its power under the Act to any officer, except the rule making power.
84 The State Government is further authorised to make rules in exercise of powers under Sec.56 of the Act to carry out its purpose. The rules framed under Sec.56 of the Act are required to be published in the Tamil Nadu Government Gazette, and the rules come into force on publication in the Government gazette. The rules are required to be placed on table of the legislative assembly.
85 The Act therefore is complete code dealing with and regulating the functioning of the recognised private schools in the State of Tamil Nadu, including service conditions of the teacher.
86 In this background, it may be noticed that G.O.Ms.No.244 dated 22.09.2007 has no application to the Recognised Private School, as the Government of Tamil Nadu cannot issue the administrative instruction in exercise of powers under Sec.56 of the Act, nor can frame rules under Article 309 of the Constitution of India, as the power to make rules under Tamil Nadu Recognised Private School (Regulation) Act 1973, can only be by following procedure laid down under Sec.56 of the Act. The rules so framed are required to be published in the Government Gazette so as to be enforceable in law.
87 The G.O.Ms.No.244 therefore cannot have any application to the petitioner school.
88 G.O.Ms.No.125 dated 12.11.2003 has been issued in exercise of power conferred under Sec.56 of the Act, stand notified in the Tamil Nadu Government Gazette dated 3.12.2003. Therefore, it has force of law which has categorized teachers in 3 categories as referred to above.
89 This amendment is in force since 3.12.2003 and the schools are therefore, entitled to appoint the teachers as per the amended rules, which does not stipulates the roster.
90 The G.O.Ms.No.144 dated 4.7.2008 has been issued by the Government by way of administrative instructions. It is not understood how the Government could issue this order by way of clarification of G.O.Ms.No.244 for applying it to Government aided school when G.O.Ms.No.244 itself was not applicable to the Government aided schools for want of jurisdiction of the Government to issue any such instructions.
91 G.O.Ms.No.144 cannot be a basis to deny approval to the petitioner for the simple reason that reading of order itself shows that proposal to amend the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974 is yet to be issued. Unless and until such an amendment is carried out and the rules framed are notified in the Gazette, till then the Government order cannot be applied to the recognised private schools.
92 The contention of the learned counsel for the petitioner that G.O.Ms.No.144 dated 04.07.2008 suffers from the vice of arbitrariness and therefore, is violative of Article 14 of the Constitution of India, as it defeats the object of regulating the education cannot be accepted. The order has been passed to regulate the education to see that teachers are appointed as per the requirement of the school for better education of the students. Therefore, the order is in consonance with the object sought to be achieved.
93 However, the second part of the order stipulating that once the post is converted, under no circumstances, it can be re-converted in future is certainly contrary to the object sought to be achieved. In case of necessity of the teacher is of the particular subject depending on the strength of the school and students, there can be no bar to re-convert the post. (There is no necessity to go into this point), as the G.O.Ms.No.144 dated 4.7.2008 has no application to the case of the petitioner, as it is not published in the Government Gazette, nor the rules have been framed as per the procedure laid down under Sec.56 of the Act. Unless the amended rules are published in the Government Gazette, it can have no force of law and, cannot apply to privately managed aided schools.
94 For the reasons stated hereinabove, this writ petition is allowed. The impugned order rejecting the request of the petitioner for grant of approval of appointment of a teacher with effect from the date of appointment, is set aside, and a writ in the nature of mandamus is issued directing the respondents to grant approval for appointment with effect from the date of appointment, within two weeks of receipt of certified copy of this order.
95 Consequently, connected miscellaneous petitions are closed.
No cost.
21.03.2012 vaan Index: Yes/No Internet:Yes/No To 1 The Secretary to Govt., Govt. of Tamil Nadu School Education Department, Fort St. George, Chennai 600 009.
2 The Director of School Education, College Road, Chennai 600 006.
3 The Chief Educational Officer, Tuticorin District, Tuticorin.
4 The District Educational Officer, Kovilpatti, Tuticorin District.
VINOD K.SHARMA, J.
vaan Pre-Delivery Order in W.P. No.18044 of 2011 & M.P.No.2 & 3 of 2011 DATED: 21.03.2012