Madras High Court
The Corporate Manager, Csi Corporate ... vs The State Of Tamil Nadu, Rep. By Its ... on 18 October, 2006
Equivalent citations: (2007)1MLJ378
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
ORDER N. Paul Vasanthakumar, J.
1. Prayer in the writ petition is to quash the proceeding of the second respondent/Director of School Education in Na.Ka. No. 30687/D1(2)/04 dated 26.10.2004 insofar as the Schools under the petitioner-management are concerned.
2. The brief facts necessary for disposal of the writ petition as stated in the affidavit are as follows.
(a) Petitioner is a Corporate Manager of the Schools established and administered by the Church of South India, Kanyakumari Diocese, which is a Christian Minority Educational Agency. The Educational Agency has established and is administering several institutions including number of schools. The teachers in the said schools are being appointed based on the sanction of post, following the qualifications prescribed by the Government from time to time.
(b) According to the petitioner, there are four categories of teachers in the aided schools apart from Special teachers, Language Teachers, Physical Education Teachers and Vocational Instructors, viz.,
(i) Secondary Grade Teachers with qualification of pass in SSLC and Diploma in Teacher Training for standards 1 to 5 in Primary Schools;
(ii) Middle Grade Graduate Teachers with B.A./B.Sc. And B.Ed qualification for standards 6 to 8 in Middle Schools/Middle Sections;
(iii) B.T. Assistants with B.A./B.Sc., and B.Ed qualification for standards 9 and 10 in High Schools/High School Sections; and
(iv) P.G. Assistants with M.A./M.Sc/M.Com and B.Ed qualification for standards 11 and 12 in Higher Secondary Schools.
It is stated in the affidavit that prior to issuance of G.O.Ms. No. 79 Education, dated 14.6.2002, all the teachers in standards 1 to 8 were in the cadre of Secondary Grade, that is, with SSLC with Diploma in Teacher Training qualification. By virtue of G.O.Ms. No. 79 Education, dated 14.6.2002, the Government found that the Secondary Grade Trained Teachers are not found competent to handle the middle School syllabus of standards 6, 7 and 8 in the subjects English, Maths and Science and therefore the standard of education is being affected in the primary level.
(c) Taking note of the said fact, the Government thought fit to upgrade the secondary grade post available in the aided schools of standards 6 to 8 as Middle Grade Teacher post from 1.6.2002 and that they will be paid one advance increment. It is also stated in the said Government Order that the statutory rules will be amended for the creation of Middle Grade Graduate Teacher post for standards 6 to 8 in middle schools, high schools and higher secondary schools.
(d) Insofar as the aided schools are concerned, the Government subsequently issued G.O. Ms. No. 125 School Education Department, dated 12.11.2003 by stating that the Secondary Grade Teacher posts will be downgraded as Junior Grade Secondary Grade Teachers; B.T Grade teachers post will be called as Junior Grade B.T. Teachers and the P.G. Grade Teachers will be called Junior grade P.G. Assistants with consolidated pay of Rs. 3,000/-, Rs. 4,000/- and Rs. 4,500/- respectively. Amendment to Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, was also made, which reads as follows,
1. In Rule 15:
(a) in Sub-rule (2), after Clause (1), the following clause shall be inserted namely:
A-1) The Schools committee of every Private Schools shall enter into a agreement with the person appointed as Junior Grade teacher in Form vii-c.
(b) after Sub-rule (6) the following sub-rule shall be inserted namely (-A) The person appointed as Junior Grade Teacher in a private School shall possess the qualifications specified in Annexure V-A.
2. after Annexure V, the following Annexure shall be inserted namely:
...
...
(e) In Annexure V-A, the qualifications prescribed for the post of Junior Grade B.Ed Teachers in High Schools and Higher Secondary Schools are B.A. Or B.Sc., of any University in the state or its equivalent and B.T. Or B.Ed; for Junior Grade B.Ed., Teacher in the Middle Schools, B.A., or B.Sc., of any University in the State or its equivalent and B.T. Or B.Ed.,; for Junior Grade Secondary Grade Teacher, SSLC and DTE certificate of Tamil Nadu or its equivalent and for the post of Junior Grade PG Assistant, Masters degree in the relevant subjects and B.T. Or B.Ed degree or its equivalent.
(f) Petitioner therefore submits that Teachers are to be appointed with the above qualifications for the respective posts as and when vacancy arises and by virtue of G.O.Ms. No. 79 dated 14.6.2002, retirement/death/resignation vacancies arising from 1.6.2002 in standards 6 to 8 shall be filled up by appointing Middle Grade Graduate Teacher that is with B.A./B.Sc. And B.Ed qualification for the subjects of English, Maths and Science and the petitioner Management is appointing middle grade graduate teachers in standards 6 to 8 in the vacancies arising from June, 2003, according to the subjects in which the school is in need of.
(g) The grievance of the petitioner is that in Scott Christian Higher Secondary School, Nagercoil, which is one of the schools established and administered by the Corporate Management, four secondary grade teacher posts fell vacant on 1.6.2005 on account of retirement/promotion of teachers previously working therein and taking note of the availability of teachers in the subjects, petitioner appointed four Middle Grade Graduate Teachers (Science). The said appointments are made due to the need for science teachers in the middle school sections of the school and when the proposals were submitted for approval before the 4th respondent, the same was returned by stating that as per the second respondent's proceeding dated 26.10.2004, the subject roaster should have been followed by the management viz., Maths, Science and English and the petitioner management having not followed the subject roaster, the proposal for approval are returned for which the petitioner management submitted a reply on 19.7.2006 before the 4th respondent and stated that taking note of the need of the School, the four middle grade graduate teachers (Science) were appointed to handle 12 sections of middle school as there are one graduate Maths teacher two graduate Social Science teachers and five secondary grade teachers handling English and Maths. However, the 4th respondent is not entertaining the request submitted by the petitioner Management and not approving the appointment of the said four middle grade graduate teachers (Science) appointed in Scott Christian Higher Secondary School, Nagercoil from 2.6.2005, 5.7.2005 and 6.7.2005 respectively. Since the appointments are not approved the petitioner is challenging the proceedings of the second respondent dated 26.10.2004 in which subject rotation is fixed by the second respondent.
3. The learned Counsel appearing for the petitioner submits that the impugned proceeding of the second respondent is contrary to the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules and also in violation of G.O.Ms.NO.79 dated 14.6.2005 and G.O.Ms. No. 125 dated 12.11.2003. The learned Counsel further submits that the Act or Rules are not amended and as per the statutory rule, there is no subject-wise roaster to be followed by the aided schools and the schools are entitled to appoint teachers according to the need, whenever the posts became vacant. Learned Counsel also argued that by virtue of the said impugned order, the right to administer the educational institutions by the minority management of its choice is infringed as it is a fundamental right guaranteed under Article 30(1)0 of the Constitution of India. The learned Counsel also cited a judgment of this Court made in W.P. No. 3823 of 2006 dated 13.9.2006 and pointed out that the impugned circular has already been found illegal as it is in violation of Annexure V-A of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974.
4. The learned Special Government Pleader appearing for the respondents submitted that the impugned circular of the Director is valid as the same are issued to follow the subject roaster and if the same is followed the Schools will have teachers for all subjects and the educational need of the school will be better served. The learned Counsel also argued that it is only a clarification issued by the second respondent and no amendment is issued to the Rules or Government Orders referred to earlier.
5. I have considered the rival submissions of the learned Counsel appearing for the petitioner as well as the learned Special Government Pleader.
6. The point in issue is whether the petitioner management can be compelled to follow the subject-wise roaster as directed by the second respondent through the impugned circular.
7. It is not in dispute that the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder or the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 are not amended till date. It is also not in dispute that G.O. Ms. No. 125 dated 12.11.2003 issued by the first respondent, which is governing the appointment of Middle Grade Graduate Teachers nowhere stipulates that the management should follow the subject-wise roaster while filling up the vacant posts of the Middle Grade Graduate Teachers in standards 6 to 8.
8. Section 19 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 clearly states 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 and as per Section 20 of the Act, no person, who does not possess the qualifications prescribed under Section 19 shall, on or after the date of the commencement of this Act, be appointed as teacher or other employee in any private school. It is also stated in Rule 15 of the Rules, 1974 that the number of teachers and other persons employed in the Private schools shall not exceed the number of posts sanctioned by the Director of School Education from time to time with reference to the academic requirements, teacher-pupil ratio and over all financial situation. Under Rule 15(3) it is stated that in a regular vacancy a fully qualified candidate shall be appointed only in a regular vacancy, however in a temporary vacancy, a teacher or other person may be appointed for a specified period.
9. As rightly contended by the learned Counsel for the petitioner, the qualifications prescribed for each of the teaching post is stated in Annexure-V of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 and the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977. It is stated therein that for a post of Middle Grade Graduate teacher, B.A./B.Sc., and B.Ed degree is prescribed. G.O.Ms. No. 125 Education, dated 12.11.2003 also prescribes the qualification for Junior Grade Teacher in the Middle schools as B.A. Or B.Sc., of any University in the state or its equivalent and B.T. Or B.Ed. Nowhere in the said Government Order or in the rules framed under the Act it is stated that the vacancies in the middle schools of standards 6 to 8 are to be filled up by subject roaster.
10. The Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, which is applicable to the minority schools in the state of Tamil Nadu, namely Rule 8 also states that the qualification for appointment of teachers in Minority Schools shall be as specified in Annexure-III appended to the rules. Annexure-III prescribes similar qualification to various categories of teachers as stated in Annexure-V of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974.
11. As rightly argued by the learned Counsel for the petitioner, hitherto the concerned managements sent proposal for the conversion of posts and the second respondent used to grant permission to convert the post from one subject to the other needy subject. Learned Counsel also submitted that by proceeding Mu.Mu. No. 137700/W6/88 dated 8.2.1989, the second respondent at the request of the Management, granted permission to the St. Francis Higher Secondary School, Vavarai, Kanyakumari District, to convert the post of the PG Assistant (Geography) into PG Assistant (Commerce). Similarly, by proceeding Thi.Mu. No. 89903/W6/98 dated 16.3.1999, at the request made by the management of the St. Mary Higher Secondary School, Colachal, the second respondent granted permission to convert the post of PG Assistant (Zoology) into PG Assistant (Commerce). From the above proceedings it is clear that the need of the particular subject teacher in a School will be ascertained by the concerned management and if any conversion of post is required, the concerned management will submit a proposal based on the workload and the second respondent after verifying the same, used to grant permission. But, by the impugned circular, the second respondent has directed the management to fill up the vacant posts by subject roaster without ascertaining the real need of the school with regard to the subject teacher. Hence the impugned circular is unreasonable and based on no material. It may be true, for a new school, when posts are sanctioned, the second respondent is justified in giving a subject roaster to fill up the posts, but cannot insist the Schools, where teachers are already working in different subjects.
12. The Director of School Education on his own has issued circular to fill up the post of Maths, English and Science in the vacancies arising from 1.6.2003. It is also stated in the said circular that for the subject of Scientific Tamil only Science teacher is competent to handle the classes, which is a new subject introduced. It is not in dispute that all the post in a school having standards 6 to 8 are earmarked as Maths, English and Science respectively. It is stated in the impugned circular that the retirement/death/resignation vacancies arising from 1.6.2003 shall be filled up by following the subject roaster. The said circular do not consider the availability of qualified B.A. and B.Ed passed Secondary grade Teacher working in the school for handling English, Maths and Science Subjects. If really there are qualified teachers available to handle English or Maths or Science subjects in the school, it is definitely open to the management to fill up the post by appointing a teacher in the relevant subjects, where there are no qualified or sufficient teachers available. Hence it is clear that the second respondent issued the circular without application of mind and without considering the relevant facts such as availability of teachers in the subjects of English, Maths and Science in a particular school.
13. The impugned order is also in violation of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules, wherein it is not stipulated anywhere that the particular school should follow the subject roaster. Even G.O.Ms.NO.125 dated 12.11.2003, which is governing the appointment of Middle Grade Graduate Teachers in standards 6 to 8, nowhere states that subject-wise roaster should be followed. In the absence of anything contained in the said Government Order, the second respondent has no jurisdiction to issue the impugned circular and if at all subject roaster is to be followed by the management, it is the government who is competent to issue the subject roaster in accordance with Section 19 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.
14. I have considered a similar issue in W.P. No. 3823 of 2006 and by order dated 13.9.2006, I have taken a decision that the impugned circular issued by the second respondent is illegal as it is in violation of Annexure-V of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Though in this case the issue is not directly on that point, still, since the impugned circular prescribes the subject roaster to the school that too by the second respondent, I am of the view that the principle set out in the said judgment squarely applies to the facts of this case.
15. It may be true that the first respondent is empowered to fix the subject roaster after taking note of the educational requirement of a particular school or a group of school. Still the second respondent is not empowered to do the same and if the same is permitted it would be contrary to the Government order.
16. On the said issue the decision of the Honourable Supreme Court reported in (1979) 2 SCC 150 (District Registrar, Palghat and Ors. v. M.B. Koyakutty and Ors.) para 22 can be usefully referred to, which reads as follows,
22. There can be no quarrel with the proposition that if the statutory rules framed by the Governor or any law enacted by the State Legislature under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted. The Executive instructions in order to be valid must run subservient to the statutory provisions. In the instant case, however, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion from the cadre of Lower Division Clerks to that of Upper Division Clerks.
17. If the impugned circular is issued by the first respondent that would be a different matter as the respondent can state that the earlier Government Order issued is silent on the particular point of subject roaster and therefore the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted and it can fill up the gap in the statutory provisions. Since the impugned circulars are issued by the second respondent, the respondents are not entitled to urge the said argument and the same is also rejected.
18. Even if an executive order is issued by the first respondent, still whether the same is valid or not is decided by the Honourable Supreme Court in the decision (B.N. Nagarajan v. State of Karnataka), which is followed in the decision reported in 1995 Supp (1) SCC 572 V. Sreenivasa Reddy and Ors. v. Govt. of A.P. and Ors. wherein in para 23 it is held thus,
23. In B.N. Nagarajan v. State of Karnataka, a Bench of three Judges, held that regularisation in violation of the statutory rules is not permissible, in exercise of the executive power of the State which have the effect of overriding the rules framed under proviso to Article 309 of the Constitution and that, therefore, no regularisation in exercise of the executive power under Article 162, in contravention of the statutory rules, is permissible.
In (State of Karnataka and Ors. v. KGSD Canteen Employees' Welfare Association and Ors.) (para 44) also the same view has been taken.
19. In view of the above stated reasons, the impugned circular issued by the second respondent should be treated as nonest and the same is hereby quashed. The writ petition is allowed with a direction to the 4th respondent to approve the appointment of the teachers appointed in the managements of the petitioner schools without reference to the impugned circular. No costs. Connected miscellaneous petition is closed.