Madras High Court
Deva Asir vs The Secretary To Government on 15 March, 2016
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.03.2016
CORAM
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.(MD)Nos.11481 of 2008,
1740 of 2009,
4949, 4950 and 12508 of 2011,
12469 and 16325 of 2012,
1228, 2885, 10115, 10116, 10117,
10860, 10861, 10862, 13011, 13924, 13925,
18000, 18130, 18193 of 2013,
318, 623, 1075, 1713, 2041, 2399, 3141, 3327,
4059, 4060, 5164, 5174, 7457, 7561, 7562, 9879,
12045 to 12048, 12085, 12159,
13661, 13759, 14542 to 14544, 15432,
17074, 17089, 17090, 17119, 17574, 17578,
17857, 17902, 19038, 19597, 19773 to 19778, 19926,
20252, 20289, 20400, 20401, 20560,
20765, 20971, 20972 of 2014,
529, 986, 1296, 1935, 1977, 2394, 2966, 3068,
3412 to 3415, 3706, 3869, 3887, 3892, 4955,
5680, 7773, 8859, 10955, 12036, 12777,
13072, 13242, 13868, 14095, 15148, 15408,
16063, 16183, 16184, 16637, 16675, 17197, 17199,
17207, 17280, 18420, 18925, 20013, 20374, 20379,
20428, 20520, 20748, 20947, 20974, 21271, 21375,
21716, 21717, 21804, 21988, 22026, 22102, 22107,
22108, 22206, 22218, 22346, 22429 to 22431,
22613 to 22620, 22626 to 22628, 22739, 22794,
22810, 23397, 23401, 23417, 23523 to 23526 of 2015,
12, 25, 34 to 37, 47, 272, 278, 314 to 316, 549,
818 to 820, 892, 895, 976, 977, 988, 989, 1072,
1081, 1082, 1085, 1146, 1368, 1501 to 1503,
1640 to 1642, 1755, 1757, 1785, 1898, 1911 to 1913,
1977, 1978, 2060, 2097 to 2100 of 2016
and connected miscellaneous petitions
in these petitions
W.P.No.11481 of 2008
Deva Asir .. Petitioner
Vs.
1. The Secretary to Government,
School Education Department,
State of Tamil Nadu,
Secretariat, Fort St. George,
Chennai ? 9.
2. The Director of School Education,
College Road, Chennai ? 6.
3. The District Educational Officer,
Thoothukudi.
4. The Correspondent,
Ambrose Hr. Sec. School,
Megnanapuram,
Thoothukukdi District. .. Respondents
* * *
Prayer in W.P.No.11481 of 2008 : Writ Petition filed under Article 226 of the
Constitution of India praying for the issuance of Writ of Certiorarified
Mandamus calling for the records relating to the return of request for the
approval of appointment of the petitioner in the post of Waterman in fourth
respondent School in his proceedings in O.Mu.No.2902/Aa3/06, dated 07.06.2006
on the file of the third respondent and quash the same and consequently
direct the respondents to approve of the appointment of the petitioner as
Waterman in the fourth respondent School from the date of the appointment,
i.e., 16.09.2004.
!For Petitioner in : Mr.T.A.Ebenezer
W.P.No.11481/2008
For Respondents in : Mr.V.R.Shanmuganathan,
W.P.No.11481/2008 Special Government Pleader
:C O M M O N O R D E R
The issue involved in all these writ petitions relates to the appointment and approval of non-teaching staff in Aided Minority and Non- Minority Schools governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 framed in exercise of the powers conferred under the said Act. Hence, these writ petitions are taken up together for hearing and disposed of by way of this common order.
IMPORTANCE OF EDUCATION :
2.1. Indeed, it is sorry to record that education was deprived to the vast majority of the people in the caste ridden Indian Society. It is an undeniable fact, one may like it or not.
2.2. The caste system has been in existence for centuries, nay, thousands of years in India. There were many Kingdoms. There were many religions. But the caste system continued to exist in the feudal system. That was the Rule of the day. The Society was basically divided into Four Varnas (Caste) and the Scheduled Caste are the outcast. The system of education that prevailed in those days was confined to the upper caste.
2.3. The aforesaid fact is the reality, though our Literatures speak a volume about the importance of education. The immortal Poet Thiruvalluvar, whose Thirukkural will surpass all ages and transcend all religions spoke about education in 40 Kurals in 4 Chapters (Adhigarams). In one of the Kurals, Thiruvalluvar said :
?Learning is excellence of wealth that none destroy : To man nought else affords reality of joy.?
2.4. There was Industrial Revolution in Europe resulting in enormous production by modern industries and a new capitalist class emerged over throwing the feudal Kingdom. They took over power from the feudal Kings.
Such enormous production necessitated various European countries to have trade all over the world to market their products. That is how, they landed in India during 17th Century. There was a breach in the feudal system in India, due to the coming in of the Europeans into India. The Capitalist mode of production introduced by the Europeans in the place of feudal system brought a sea change in the caste system. That is, the introduction of the Railways, Modern Industries, Modern Schooling in contrast to the Kurugulas, etc. made an effective inroad in the caste system. However, the caste system still continues to exist.
2.5. The Apex Court in the judgment in Avinash Mehrotra V. Union of India, (2009) 6 SCC 398, recorded the following facts in paragraphs 24 and 25 :
?24. .... The Hunter Commission in 1882-1883, almost 125 years ago, recommended universal education in India. It proposed to make education compulsory for the children.
25. The Government of India Act, 1935 provided that ?education should be made free and compulsory for both boys and girls?. While debating on a Bill in the Imperial Council in 1911, Shri.Gopala Krishna Gokhale strongly advocated that elementary education should be both compulsory and free.?
2.6. While so, India attained Independence on the 15th August 1947. It is the past history that most of the Indian territory came under the control of the British and other European countries, while the rest of the territories were under the control of hundreds of feudal Kings. The foreign rule came to an end. Our Constitution was enacted thereafter.
Education occupies an important place in our Constitution. At three places, that is, Articles 41, 45 and 46, the Constitution speak on education.
2.7. At this juncture, it is useful to extract Articles 41, 45 and 46 of the Constitution of India :
?41. Right to work, to education and to public assistance in certain cases.? The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
45. Provision for free and compulsory education for children ? The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.?The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.?
It is true that the aforesaid Articles are incorporated in Part IV of the Constitution, that is, the Directive Principles of State Policy. However, it is relevant to note that there was a debate in the Constituent Assembly for including of these Articles in Part III relating to the Fundamental Rights.
2.8. In view of the aforesaid past history, the Constitution also provides for making special provision for the advancement of socially and economically backward classes and for the SC/STs by inserting Article 15(4) of the Constitution in the First Amendment to the Constitution in 1951, more particularly, after the historic protest by Thanthai Periyar.
2.9. Now, after the mushrooming of private educational institutions, a recent amendment is made by inserting Clause (5) in Article 15 of the Constitution providing reservation in the matter of education for socially and educationally backward classes of citizens and for SC/STs in respect of admission to aided and unaided private educational institutions.
2.10. Article 30 in Part III, relating to Fundamental Rights, guarantees a valuable right to the minorities to establish and administer educational institutions.
2.11. Article 45 of the Constitution specially mentions a time limit for providing free and compulsory education for the children upto the age of fourteen years. But the Article is not enforceable, in view of Article 37 of the Constitution, as it is in the Part IV of the Constitution.
2.12. However, a Constitution Bench of the Apex Court, after taking note of the time limit prescribed under Article 45, on 04.02.1993 rendered a judgment in Unni Krishnan V. State of A.P., reported in (1993) 1 SCC 645, holding that a child has a fundamental right to free education upto the age of 14 years. It is useful to extract paragraph 175 of the said judgment :
?175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality ? at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education upto the age of 14 years.?
2.13. Thereafter, the crux of the Article 45 was bodily lifted and inserted as Article 21-A of the Constitution in Part III relating to fundamental rights in the year 2002 by the Constitutional (Eighty-sixth Amendment) Act, 2002. Thus, now the Constitution envisages free education upto the age of 14 years and the same is enforceable one.
2.14. We are concerned herein about the school education. That is, upto +2 level, i.e., the 12th Standard. We are not concerned with higher education, that is, Collegiate Education. The Higher education, namely, education relating to professional Courses, Arts and Sciences and all sorts of higher education is not guaranteed as a fundamental right in the Constitution.
2.15. Article 41 was interpreted by the Apex Court and the High Courts that the State shall endeavour to provide higher education based on its economic capacity.
2.16. But, it is my considered view that it is the Constitutional duty of the State to guarantee education upto school level, i.e, upto the 12th Standard, as per the Constitutional Scheme by reading together Articles 21-A, 30, 41, 45 and 46 of the Constitution, since study upto the 10th/12th Standard comes under Secondary Education and the Standards upto IX are inseparable from the 10th Standard/12th Standard.
Private Aided Educational Institutions in Tamilnadu :
3.1. The private educational institutions in Tamilnadu (in the then Madras Presidency) came into existence only in the 19th century. The Christian Missionaries, Religious Institutions and the Philanthropists established educational institutions. Their purpose was a pious one. There was no commercial element involved in it.
3.2. After Independence, in Tamilnadu, the State Government established schools, more importantly, Primary and Middle Schools even in the remote villages. Till 1978, the school education, i.e., Secondary Education, in Tamilnadu consisted of 11 standards. The schools that impart education upto 5th standard are called as Primary/Elementary Schools. The Schools that impart education upto 8th standard are called as Middle Schools. The schools that impart education upto 11th standard were called High Schools. Thereafter, students had to pass the Pre-University Course (P.U.C.) in the colleges that are affiliated to the State Universities. After passing the P.U.C., one can pursue Degree, Post Graduate Degree etc. in the colleges or Universities or Professional Courses, such as Engineering, Medical Courses and the like.
3.3. As far as the schools upto high school level were concerned, there were two types of schools. One is the Schools established by the Government or Local Bodies. The other is the schools established by the Missionaries or some religious institutions or individual philanthropists. The issue involved in these writ petitions pertains to the second type of institutions.
3.4. These institutions are in receipt of aid from the State. Thus, these institutions are called Private Aided Schools. If the Schools were established by minorities, those institutions are called minority educational institutions.
3.5. Both the educational institutions, namely, the institutions established by the Government/Local Bodies or the Private Aided Schools are imparting free education. Practically, they do not collect any fees. Even the affluent section of the society, the rich, the upper middle class and the middle class sent their children to these institutions, namely, the institutions established by the Government/Local Bodies or the Private Aided Schools. Almost, there was no private players at the School level at that time.
Private Unaided Schools :
4.1. The Apex Court in Unni Krishnan's case (cited supra), recorded, placing reliance on the Affidavit of the Union of India, that the private unaided schools constituted only 3.7% of the total number of elementary schools in the country, wherein, some fee was charged.
4.2. That was the state of affairs even in the early part of 1990s. Now the entire scenario is totally changed.
4.3. Now there is a mushrooming growth of self-financing institutions at the school level also in Tamilnadu, since in the perception of the people, the Schools established by the Government/Local Bodies and the Private Aided Schools do not provide quality education. It is an irony that the people like their Children to join Professional Courses, such as Engineering, Medicine etc. in Government Institutions. These Self-financing Schools constitute about 40% of total schools upto +2 level as of now. More importantly, these 40% of the schools cater the needs of the affluent, the upper middle class, the middle class and even the lower class. At the moment, only the downtrodden people send their children to the schools established by the Government/Local Bodies or the Private Aided Schools. There is a big rush to the Private Unaided Schools and nowadays New Self-financing Schools are being opened even in the remote villages. Within a short span of time, they would become the majority, as almost no new school is being established by the Government/Local bodies and the State took a policy decision not to give aid to the Private Schools that are established after 1991-1992, by unfortunately inserting Section 14-A in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.
4.4. Hence, unfortunately, these private unaided educational institutions at the School level are carrying out the Governmental activities and discharging the duties of imparting education, though it is the Constitutional duty for the State to provide free School Education to the children upto 14 years of age.
5.1. These aided schools were earlier governed by the Madras Elementary Education Act, 1920 and the Madras Education Rules. The Madras Education Act, 1920 governed both the government schools and private schools.
5.2. While so, the Tamilnadu Legislature enacted Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 (hereinafter referred to as ?the Act?) for the Private Aided Schools. It is a complete and comprehensive code covering all the matters relating to the Private Aided Schools. The Government, in exercise of the powers conferred under the Act, framed the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 (hereinafter referred to as ?the Rules?). We are concerned herein about the sanction of grant to the sanctioned non-teaching posts, as prescribed in the Act and the Rules.
Private unaided minority Schools :
6.1. Immediately after enactment of the Act, the minority educational institutions filed a batch of Writ Petitions in W.P.No.4478 of 1974 etc. questioning various provisions of the Act on the ground that it took away the rights guaranteed under Article 30 of the Constitution. The writ petitions were allowed by the First Bench of this Court on 17.12.1975 declaring that Sections 8(1)(a), 11(1)(b), 12(1), 14 to 18, 21(2) to 26, 31 to 33, 39(4) and 41 to 45 of the Act and Rules 7, 9 [except clauses (e) and
(k) of sub Rules (2)], 10 to 14, 16 to 18 and 22 to 24 of the Rules are not applicable to the minority institutions.
6.2. This led to the issuance of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977.
6.3. The State took the matter on appeal to the Apex Court in SLP (Civil)Nos.1521-56 and 3042-91 of 1979. The Apex Court on 04.03.2003 set aside the aforesaid order of the Division Bench dated 17.12.1975 in W.P.No.4478 of 1974 etc. batch and remanded back the matter for fresh consideration and a direction was issued to maintain status quo till the High Court decides the issue afresh.
6.4. When the batch of writ petitions in W.P.Nos.4478 of 1974 etc. came for hearing, on remand, the State Government filed an affidavit stating that the present law will be replaced by a new one and that the status quo could be maintained in the meantime.
6.5. In view of the aforesaid stand taken by the State Government, the Division Bench, by an order dated 10.10.2012 disposed of W.P.No.4478 of 1974 etc. batch with a specific direction to maintain status quo till new comprehensive law comes into force and the effect is that the declaration made by the First Bench of this Court in the order dated 17.12.1975 in W.P.No.4478 of 1974 etc. batch that various provisions of the Act and the Rules are not applicable to the Minority Private Aided Schools still holds the field.
The Relevant provisions of the Act and the Rules relating to sanction, appointment and grant in aid of non-teaching staff :
7.1. The private school is defined under Section 2(7) of the Act, which is reproduced hereunder :
?2. Definitions ? In this Act, unless the context otherwise requires - (7) ?private school? means a pre-primary, primary, middle or high school or higher secondary school or teacher training institution imparting education or training, whether receiving grant from the Government or not, established and administered or maintained by any person or body of persons and recognised by the competent authority under this Act but does not include a school or an institution.?
7.2. As per the Act and the Rules, the educational agency, which is permitted to establish and maintain private schools are prohibited from administering the school directly. The educational agency shall have to constitute a School Committee, as per Section 15 of the Act read with Rule 12 of the Rules. However, the Minority Educational Institutions could be administered through the educational agency, in view of the judgment of the Division Bench, referred to above.
7.3. Section 18 of the Act empowers the School Committee to carry on the general administration including the power to appoint both teaching and non-teaching staff and take disciplinary action against those staff.
7.4. Terms and conditions of service of teachers and other persons, that is, non-teaching staff, employed in these private aided schools are covered under Section 19 to 28 of the Act. More importantly, Section 19 of the Act states that the Government may make rules regulating the number, qualifications and conditions of service. Section 20 of the Act states that no person, who does not possess the qualifications prescribed under Section 19 of the Act, shall be appointed as Teacher or non-teaching staff in any private aided school.
7.5. At this juncture, it is useful to extract Sections 19 and 20 of the Act as hereunder :
?19. Qualifications, conditions of service, etc., of Teachers and other persons employed in private schools ? The Government may make Rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age or retirement and rights as respect disciplinary matters) of the Teachers and other persons employed in any private school.
20. Appointment of Teachers and other employees in private schools ?
(1) 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.
(2) Nothing contained in this section or any Rule made thereunder shall apply to any person who, on or before the date of commencement of this Act, is employed as teacher or other employee in any private school.
(3) Notwithstanding anything contained in sub-section (1), the Government may, by general or special order, whether prospectively or retrospectively, exempt any person or class of persons from possessing the qualifications prescribed under Section 19 relating to age and experience for appointment as teacher or other employee in any private school, subject to such conditions, if any, as may be specified in such order.?
7.6. Rule 15 of the Rules prescribed for qualifications, conditions of service of teacher and other persons, i.e., non-teaching staff. Obviously Rule 15 is referable to Section 19 of the Act.
7.7. It is significant to note that Clause (1) of Rule 15 categorically states that the Director of School Education shall sanction the posts relating to the teaching and other persons employed in a private aided school, taking into account, the academic requirements, the teachers pupil ratio and overall financial considerations. That is, the Director is the competent authority with respect to the sanction of posts.
7.8. It is also significant to note that Clause (3) of Rule 15 states that in regular vacancy, a fully qualified person shall be appointed only on a regular basis.
7.9. Clause (6) of Rule 15 of the Rules states that the teacher and other persons employed in these schools shall possess the qualification as specified in Annexure V. Thus, Annexure V assumes much importance. As far as Annexure V is concerned, the portion relating to non- teaching staff is Clause III of Annexure V and the said clause is extracted hereunder :
III. QUALIFICATIONS FOR THE NON-TEACHING STAFF IN PRIVATE SCHOOLS INCLUDING TRAINING SCHOOLS Name of the post Qualifications (1) (2)
1. Clerks including Library Clerk S.S.L.C. with eligibility for College Course
2. Record Clerk, Laboratory and Library Assistant.
S.S.L.C. Completed
3. Peons.
A pass in Standard VIII.
4. Watchman, Waterman Gardener, Sweeper and Scavenger To read and write Tamil.
7.10. Rules 15(7) and 15(8) of the Rules provide for reservation in filling up of the vacancies in teaching as well as the non-teaching posts in the Private Aided Schools, other than Minority Aided Schools.
7.11. Section 14 of the Act and Rule 11 of the Rules deal with payment of grant. That is, Rule 11 is prescribed as per Section 14 of the Act. Section 14 of the Act and Rule 11 of the Rules are extracted hereunder:
?14. Payment of grant ? (1) Subject to such Rules as may be prescribed, the Government may continue to pay grant to the private school receiving grant from the Government, before the date of commencement of the academic year 199101992 at such rate and for such purposes as may be prescribed.
(2) The Government may withhold permanently or for any specified period the whole or part of any grant referred to in sub-section (1) in respect of any private school,-
(i) which does not comply with any of the provisions of this Act or any rules made or directions issued thereunder in so far as such provisions, Rules or directions are applicable to such private school, or
(ii) in respect of which the pay and allowance payable to any teacher or other person employed in such private school are not paid to such teacher or other person in accordance with the provisions of this Act or the Rules made thereunder, or
(iii) which contravenes or fails to comply with any such condition as may be prescribed.
(3) Before withholding the grant under sub-section (2), the Government shall give the educational agency an opportunity of making its representation.
11. Payment of Grants ? (1) Recognised private schools may be paid grants from State funds directly or through Panchayat Unions. Such payment of grants shall be subject to Government orders and instructions issued from time to time :
Provided that, schools whose recognition have been withdrawn shall not be entitled to any grant for the period of such withdrawal of recognition.
(2) The authority competent to sanction grant shall be the District Educational Officer.
(3) The rate at which and the purpose for which the grant may be paid shall be as specified in Annexure I. (4) The Joint Director of School Education (Elementary Education) in respect of Pre-Primary, Primary and Middle Schools and the Joint Director of School Education (Secondary Education) in respect of High Schools and Deputy Director (Teacher Education) in respect of Teachers' Training Institutes and the Joint Director of School Education (Higher Secondary) in respect of Higher Secondary Schools shall withhold, permanently or for any specified period, the payment of grant, if any of the conditions specified in Rule 9 are contravened or not complied with.
(5) Notwithstanding anything contained in the Act or in any other law for the time being in force or in any decree, order or direction of any Court or other authority -
(i) 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 ;
(ii) the Government may, subject to -
(a) the availability of funds ;
(b) The norms and conditions specified in the Grant-in-Aid Code of Tamil Nadu Education Department.
(c) The condition that every private school receiving any grant or financial assistance from the Government levies and collects from the pupils only such fee, charges or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment levied and collected from the pupils studying in the schools or Institutions established and administered or maintained by the State Government, or any local authority in the locality.
(d) the rules, orders and notifications issued by the Government, from time to time ; and
(e) such other conditions as may be prescribed by Government to the private school grant or other financial assistance at such rate and for such purposes as may be prescribed.?
7.12. Once the post is sanctioned as per Rule 15, the DEO/DEEO is the competent authority to sanction grant as per Rule 11(2). That is, whenever vacancies arise in the sanctioned posts, the competent authority to sanction grant is the DEO/DEEO. Hence, the DEOs/DEEOs cannot abdicate their statutory function. No higher authority could pass any order in the matter of sanction of grant issuing direction to DEOs/DEEOs, as the same is violative of Rule 11(2) of the Rules.
Appointments :
8. Teaching and non-teaching staff of the Non-minority Private Aided Schools are appointed by the School Committee by following the Act and the Rules. In the case of Minority Private Aided Schools, the Educational Agency is the appointing authority and though various provisions of the Act and the Rules are not applicable to the Minority Educational Institutions, Section 19 of the Act and Rule 15 of the Rules are applicable to those Institutions also. Admittedly, all the Private Schools ? Minority and Non- Minority ? concerned in these writ petitions are in receipt of Aid from the Tamilnadu Government for the posts sanctioned by the Director of School Education, as per Rule 15(1) of the Rules and the DEOs/DEEOs are the grant sanctioning authorities to those sanctioned posts under Rule 11(2) of the Rules. Whenever vacancies arise in those sanctioned posts due to death/retirement/resignation, etc. these Private Aided Schools could fill those vacancies as per the provisions of the Act and the Rules. For filling up those posts, the Act and the Rules do not contemplate seeking of prior permission from any authority. The vacancies shall be filled immediately. If there is any delay in filling up the vacancies in respect of the teaching as well as the non-teaching posts, it would result in serious prejudice and damage to the educational interest of the downtrodden people, who only enter the portals of theses Aided Schools.
Ban on recruitment :
9.1. The Government issued G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001, imposing ban on recruitment to all posts in the Government Departments, other than, the post of Teachers, Doctors and Police Constabulory.
9.2. During the ban period, the Government issued G.O.Ms.No.49, P & AR Department, dated 14.05.2002, stating that the works of all Group D categories, like Sweeper, Scavenger, Cleaner, Gardener etc. in the Government Departments in the Government Departments shall be progressively outsourced and shall be entrusted on contract basis.
9.3. Later, the Government lifted the ban by issuing G.O.Ms.No.14, Personnel and Administrative Reforms Department, dated 07.02.2006.
9.4. In the meantime, that is, between 29.11.2001 and 07.02.2006, the date of issuance of G.O.Ms.No.212 and the date of lifting of the ban in G.O.Ms.No.14, number of vacancies arose in the sanctioned posts in the non- teaching staff categories such as Watchman, Waterman, Gardener, Sweeper, Scavenger, Peon, Record Clerk, Laboratory Assistant, Library Assistant including Library Clerks. The School Committees/ Educational Agencies filled up those vacancies and sent proposals for approval of the educational authorities, namely, DEOs/DEEOs for the purpose of grant.
9.5. The educational authorities, that is, DEOs/DEEOs refused to approve of the appointments made to those posts stating that the appointment could not have been made during the ban period.
9.6. A large number of writ petitions filed seeking approval of appointments and this Court ultimately allowed all those writ petitions approving of those appointments. The same is not in serious dispute.
9.7. Even after the ban was lifted, the Secretary to the Government, Education Department, issued a letter dated 26.05.2006 stating that until a final decision is taken by the Government, the non-teaching staff posts in the aided schools cannot be filled and the ban would continue. The said letter was set aside by this Court in various orders passed in a number of writ petitions.
9.8. Citing the aforesaid Government letter, the DEOs/DEEOs refused to grant approval for the appointments made against the vacancies that arose in the sanctioned non-teaching staff posts even after the lifting of the ban. This again led to the filing of a large number of writ petitions. Ultimately, all those writ petitions were allowed and the appointments were approved of. The same is not in serious dispute.
9.9. At this juncture, it is not worthwhile to discuss as to whether G.O.Ms.No.212, P & AR Department, dated 29.11.2001 and G.O.Ms.No.14, P & AR Department, dated 07.02.2006 are applicable to the private aided schools governed by the Act and the Rules. It is only an academic issue to decide as to whether those G.O.Ms.Nos.212 and 14 are applicable to the private aided schools governed by the Act and the Rules and those Government Orders are only meant for the posts in the Government departments, since the appointments made to the non-teaching posts during the said ban period by filling up the vacancies in the sanctioned posts were approved of for the purpose of grant, pursuant to various orders of this Court, as stated above. Likewise, whether G.O.Ms.No.49 is applicable to the private aided schools governed by the Act and the Rules need not be decided in the said circumstances.
Issuance of impugned G.O.Ms.No.115, dated 30.05.2007, G.O.Ms.No.203, dated 23.07.2010 and the Government Letter dated 09.07.2012 after lifting of the ban on recruitment :
10.1. After lifting of the ban in G.O.Ms.No.14, dated 07.02.2006, the Government issued G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, specifically restricting the appointment to various posts belonging to non-teaching staff categories in the Private Aided Schools. In respect of Watchman, Sweeper, Scavenger, Sweeper-cum-Scavenger posts are concerned, the said G.O.Ms.No.115 specifically states that those posts shall be outsourced and the expenditure to meet the outsourcing method shall be met by the aided schools. Thus, it amounts to indirect withdrawal of the grant in aid to these sanctioned posts and thus the same is violative of Sections 14 and 19 of the Act read with Rule 15 and 11 of the Rules, according to the petitioners.
10.2. Further, a clear restriction is made in G.O.Ms.No.115, dated 30.05.2007, that only 50% of vacancies that existed as on that date in the posts of Office Assistants could be filled and the remaining posts shall be kept vacant. It further states that existing vacancies of 164 Junior Assistants could be filled. That is, the future vacancies in the posts of Junior Assistant and Office Assistant were directed not to be filled and thus, it also amounts to indirect withdrawal of grant in aid to those sanctioned posts. Thus, such an action is violative of Sections 14 and 19 of the Act read with Rule 15 and 11 of the Rules, according to the petitioners.
10.3. The said G.O.Ms.No.115 refers to G.O.Ms.(1D)No.37, School Education Department, dated 08.02.2007. The said G.O.Ms.No.37, dated 08.02.2007 relates to various categories of non-teaching staff in the school education department of the Tamilnadu Government and the same is nothing to do with the aided schools. In any event, the G.O.Ms.No.115 nowhere refers to the Act and the Rules.
10.4. After the issuance of G.O.Ms.No.115, dated 30.05.2007, the DEOs/DEEOs refused to sanction grant to the non-teaching posts, when those sanctioned posts were filled up in accordance with the Act and the Rules, whenever vacancies arose, by the Private Aided Schools.
10.5. Those orders of DEOs/DEEOs are questioned in various writ petitions herein.
10.6. Further, G.O.Ms.No.115, dated 30.05.2007 is also questioned in some of these writ petitions.
11.1. Thereafter, the Government issued another G.O.Ms.No.203, School Education Department, dated 23.07.2010, in respect of the aided schools governed by the Act and the Rules. The said G.O.Ms.No.203 contains Annexure I and Annexure II. It is stated therein that there are in total 952 non-teaching posts vacant. It is further stated in Annexure I of the said G.O. that 467 posts such as Watchman, Gardener-cum-Sweeper, Waterman, Gardener, Sweeper, Scavenger, Waterman-cum-Scavenger, Scavenger-cum-Gardener, Sweeper-cum-Scavenger, Waterman-cum-Gardener, Watchman-cum-Sweeper shall be filled only by way of outsourcing. Annexure II states that 485 posts with respect to the Junior Assistant, Librarian, Laboratory Assistant, Library Assistant, Record Clerk, Office Assistant, etc. are vacant and Aid to those posts could be sanctioned from the date of filling up of those posts.
11.2. G.O.Ms.No.203, dated 23.07.2010, is also questioned in some of these writ petitions herein.
11.3. Furthermore, in some writ petitions directions are sought to approve of the appointments with respect to the sanctioned non-teaching staff posts that were filled in accordance with the Act and the Rules when vacancies arose due to death/retirement/ resignation, etc..
12. It is also relevant to note that a letter dated 09.07.2012 in No.8884/D1/2011-2 was issued by the Deputy Secretary to the Government, School Education Department, to the Director of School Education stating that the Government took the decision to appoint an Expert Committee to frame guidelines relating to the grant to the teaching and non-teaching posts and hence, the non-teaching posts could not be filled in the meantime.
13.1. At this juncture, it is useful to extract G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, as hereunder:
?ABSTRACT School Education ? Filling of Non-teaching staff in Government Aided Secondary School orders issued ? Regarding.
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School Education (D2) Department G.O.Ms.No.115 Dated : 30.05.2007 Read
1.Letter ROC.30072/D1/4/2006 dt.11.12.2006 and 71599/D/E4/99 dated : 16.4.2007 of the Director of School Education, Chennai
2.G.O.Ms.No.(1D)No.37, School Education Department, dt.08.02.2007 ORDER :
In reference to Government Order 2nd cited the Government have permitted to fill the following non Teaching posts of High and Higher Secondary Schools
001.All Junior Assistant posts in the existing vacancy may be filled. 002.50% existing vacancy of sweepers post shall be filled by outsourcing method (texco)
003.All the existing vacancy of sweepers post shall be filled by outsourcing by private Agency.
004.All the Gardener and Waterman posts need not be filled.
005.Out of existing vacancies of Office Assistant Posts 50% posts shall be filled. Balance posts shall be filled after review.
2. In the reference first cited the Director of School Education has reported that there are following posts are vacant in the state :
Posts No. of vacant posts Junior Assistant 164 Office Assistant 281 Watchman 176 Sweeper 26 Scavenger 40 Sweeper cum Scavenger 7
3. In the light of above facts, as referred in para 1 of the Government order all the non-teaching posts of High and Higher Secondary Schools can be filled by using following norms.
1.All the existing vacancy of 164 Junior Assistants can be filled in all Government Aided High and Higher Secondary Schools.
2.In respect of Office Assistants, 50% vacancies out of 281 Government have permitted to fill up 140 posts at present. While filling up these posts priority shall be given on the strength of the pupils and post shall be filled first and the remaining posts shall be vacant that was occurred first.
3.In respect of watchman, sweeper, scavenger, sweeper cum scavenger posts are concerned post like Government Schools the expenditure shall be met by the Aided Schools, of these posts shall be filled up by an outsourcing method.
4.This order is issued with concurrence under UO Note No.1430/FS/P/O dt/27.04.2007 of Finance Department.
True Copy Sd.M.Kutralingam Secretary to Government.?
13.2. G.O.Ms.No.203, School Education (D1) Department, dated 23.07.2010, is usefully extracted hereunder :
RUf;fk;
gs;spf;fy;tp ? muR cjtpbgWk; cau;epiy/nky;epiyg; gs;spfspy; fhypahf cs;s Mrpupauy;yhj gzpapl';fis epug;g[jy;?16/4/2010 md;W eilbgw;w khdpaf; nfhupf;ifapd; nghJ khz;g[kpF gs;spf;fy;tp mikr;ru; mtu;fspd; mwptpg;g[ ? Mizfs; btspaplg;gLfpd;wd/ ?????????????????????????????????????????????????????????????????????????
gs;spf;fy;tpj;(o1)Jiw murhiz (epiy) vz;/203 ehs; 23/07/2010 jpUts;Stuhz;L 2041. Mo?7 gof;fg;gl;lit
1gs;spf;fy;tp ,af;Feupd; foj e/f/vz;/87216-o1-,4- ehs; 4/12/2009 216/4/2010 md;W eilbgw;w khdpaf; nfhupf;ifapd; nghJ khz;g[kpF gs;spf;fy;tp mikr;ru; mtu;fspd; mwptpg;g[ ?????
Miz /;
16/4/2010 md;W eilbgw;w gs;spf;fy;tpj;Jiw khdpaf; nfhupf;ifapd; nghJ muR epjpa[jtp bgWk; cau;epiy-nky;epiyg; gs;spfspy; fhypahf cs;s 952 Mrpupauy;yhj gzpapl';fis epug;g eltof;if nkw;bfhs;sg;gLk; vd;W khz;g[kpF gs;spf;fy;tpj; Jiw mikr;ru; mtu;fshy; mwptpf;fg;gl;lJ/ 2/ muR cjtpbgWk; cau;epiy-nky;epiyg; gs;spfspy; fhypahf cs;sjhf Kjyhtjhf gof;fg;gl;l fojj;jpy; gs;spf;fy;tp ,af;Feuhy; bjuptpf;fg;gl;l 952 Mrpupauy;yhj gzpapl';fspy;. fhtyu; (Watchman), njhl;lf;fhuh; kw;Wk; bgUf;Fgtu; (Gardener cum Sweeper), jz;zPu; bfhzu;gtu; (Waterman), njhl;lf;fhuh; (Gardener), bgUf;Fgtu; (Sweeper), Jg;g[uthsu; (Scavenger), jz;zPu; bfhzu;gtu; kw;Wk;; bgUf;Fgtu; (Waterman cum Sweeper), Jg;g[uthsu; kw;Wk; njhl;lf;fhuh; (Scavenger cum Gardener), bgUf;Fgtu; kw;Wk; Jg;g[uthsu; (Sweeper cum Scavenger), jz;zPu; bfhzu;gtu; kw;Wk; njhl;lf;fhuh; (Waterman cum Gardener) kw;Wk; fhtyu; kw;Wk; bgUf;Fgtu; (Watchman cum Sweeper) Mfpa. ,izg;g[-I-y; gl;oayplg;gl;Ls;s 467 gzpapl';fis btspahl;fisf; bfhz;L (Out Sourcing) bjhlu;e;J epug;gpf;bfhs;s mDkjp tH';fyhk; vd;Wk;. kPjKs;s ,izg;g[- II-y; gl;oayplg;gl;Ls;s 485 gzpapl';fSf;F mit epug;gg;gl;l ehs; Kjy; KGneu Cjpa tpfpjj;jpy; muR khdpaj;Jld; mDkjp tH';fyhk; vd;Wk; KobtLf;fg;gl;L mt;thnw muR MizapLfpwJ/ 3/ ,t;thiz epjpj;Jiwapd; mYty; rhu;gw;w Fwpg;g[ vz;/39197-epjp(fy;tp- II)-2010 ehs; 15/7/2010y; bgwg;gl;l xg;g[jYld; btspaplg;gLfpwJ/ (MSeupd; Mizg;go) k/Fw;whyp';fk;
muR Kjd;ikr; brayhsu;/ bgWeu;
gs;spf;fy;tp ,af;Feu;. brd;id?6 efy;
khz;g[kpF gs;spf;fy;tp mikr;ru; mtu;fspd;
KJepiy neu;Kf cjtpahsu;. brd;id-9 epjp (fy;tp?II) Jiw. brd;id?9/ Kjd;ikr; brayupd; jdpr;brayu;.
gs;spf;fy;tpj;Jiw. brd;id?9/ gs;spf;;fy;tp(tut[?bryt[)Jiw. brd;id?9/
--Mizg;go mDg;gg;gLfpwJ--
gpupt[ mYtyu;/ ,izg;g[ ? I (murhiz(epiy)vz;/203. gs;spf; fy;tp(o1) Jiw. ehs; 23/7/2010) t/ vz;
gzpaplj;jpd; tif fhypg;gzp ,l';fspd; vz;zpf;if 1 fhtyu;
235 2njhl;lf;fhuh; kw;Wk; bgUf;Fgtu;
25 3jz;zPu; bfhzu;gtu;
64 4njhl;lf;fhuh;
26 5bgUf;Fgtu;
60 6Jg;g[uthsu;
38 7jz;zPu; bfhzu;gtu; kw;Wk; bgUf;Fgtu;
7 8Jg;g[uthsu; kw;Wk; njhl;lf;fhuh;
3 9bgUf;Fgtu; kw;Wk; Jg;g[uthsu;
5 10jz;zPu; bfhzu;gtu; kw;Wk; njhl;lf;fhuh;
3 11fhtyu; kw;Wk; bgUf;Fgtu;
1bkhj;jk;
467k/Fw;whyp';fk;
muR Kjd;ikr; brayhsu;/
--Mizg;go mDg;gg;gLfpwJ--
gpupt[ mYtyu;/ ,izg;g[ ? II (murhiz(epiy)vz;/203. gs;spf; fy;tp(o1) Jiw. ehs; 23/7/2010) t/ vz;
gzpaplj;jpd; tif fhypg;gzp ,l';fspd; vz;zpf;if 1 ,sepiy cjtpahsu;
14 2Ehyfu; epiy-I 30 3 Ma;tf cjtpahsu;
103 4Ehyf cjtpahsu;
6 5gjpt[U vGj;ju;
248 6mYtyf cjtpahsu;
58 7Ma;tf cldhsu;
4 8Ehyf cldhsu;
22bkhj;jk;
485k/Fw;whyp';fk;
muR Kjd;ikr; brayhsu;/
--Mizg;go mDg;gg;gLfpwJ--
gpupt[ mYtyu;/?
13.3. The Government Letter in No.8884/D1/2011-2, dated 09.07.2012, is also extracted hereunder :
fojk; vz;/8884-o1-2011?2. ehs; 09/07/2012 mDg;g[eh;
jpU/br/bry;tuhR. vk;/V/.
muR Jizr; brayhsh;/ bgWeh;
gs;spf; fy;tp ,af;Feh;.
brd;id?6/ Iah.
bghUs; gs;spf; fy;tp ? cjtp bgWk; gs;spfs;
? muR cjtp bgWk; gs;spfSf;F
Vw;bfdnt mDkjpf;fg;gl;Ls;s
Mrphpauy;yhnjhh; gzpapl';fspy; jw;nghJ
fhypahft[s;s gzpapl';fis epug;gpf;
bfhs;Sjy; ? murpd; mDkjp ntz;oaJ
? rhh;g[/
ghh;it 1/ muRf; fojk; vz;/11462-o2-2006?1.
ehs; 26/5/2006
2/ muRf; fojk; vz;/4049-o1-2011?1.
ehs; 24/3/2011
3/ j';fsJ fojk; e/f/vz;/63538-o1-,4-2011.
ehs; /03/2012
?????
ghh;itapy; fz;l j';fsJ fojj;jpd; kPJ ftdk; <h;f;fg;gLfpwJ/ 2/ muR cjtpbgWk; gs;spfSf;F Mrphpah; kw;Wk; Mrphpauy;yhnjhh; gzpapl';fSf;F bjhlh;e;J khdpak; tH';FtJ my;yJ mtw;wpw;fhd g[jpa bewpKiwfs; tFg;gJ Fwpj;J muRf;F chpa ghpe;Jiuapid mspf;f VJthf ty;Yeh; FG xd;wpid mikj;J Ma;t[ bra;a jw;nghJ murhy; eotof;if vLf;fg;gl;L tUk; epiyapy;. ,jpy; vLf;fg;gLk; ,Wjp Kotpw;nfw;g. muR cjtpbgWk; gs;spfSf;F murhy; mDkjpf;fg;gl;L. mg;gs;spfspy; fhypahf cs;s Mrphpauy;yhj gzpapl';fis epug;gpf; bfhs;s mDkjpg;gJ Fwpj;J gpd;dh; KobtLf;fyhk; vd muR fUJfpwJ/ vdnt. nkw;fhQqk; bghUs; bjhlh;ghd j';fsJ nfhhpf;if Fwpj;J jw;nghJ ghprPypf;Fk; mtrpak; vHtpy;iy vd;gijj; bjhptpj;Jf; bfhs;fpnwd;/ j';fs; ek;gpf;ifa[s;s.
muR Jizr; brayhsUf;fhf/?
14. In the Government Letter dated 09.07.2012, a reference was made to the earlier letter dated 26.05.2006 of the Secretary to Education Department, that was quashed by this Court in more than one order.
15. Thus, Government Orders and the Government Letter are challenged by the petitioners on the ground that these Government Orders and the letter are without jurisdiction and were issued in gross violation of the various provisions, more importantly, Sections 14, 19 and 20 of the Act read with Rules 11 and 15 of the Rules.
16. According to the petitioners, the Government cannot issue administrative instructions by way of the impugned Government Orders overriding the provisions of the Act and the Rules, when the matter is governed by the Legislative Scheme by way of the Act and the Rules.
17. Counter-affidavits are filed in many writ petitions seeking to sustain the Government Orders and the orders of various DEOs/DEEOs refusing to approve of the appointment of non-teaching posts. According to the State, the Government has powers to issue instructions by way of the Government Orders and Government Letters and also to issue consequential impugned orders.
18. Heard both sides.
19.1. The submissions of the learned counsels for the petitioners could be summarized as follows :
(i).When the Statute and the statutory Rules, i.e., the Act and the Rules, govern the field relating to the appointment of non-teaching posts in Private Aided Schools, the impugned Government Orders /directions/instructions cannot override the legislative scheme and the same cannot go counter to the legislative policy enunciated in the Act and the Rules.
(ii).Once the non-teaching posts are sanctioned by the Director as per Rule 15(1) of the Rules, the DEOs/DEEOs are bound to sanction grant on filing up those posts when the vacancies arose therein due to death/retirement/resignation etc. The DEOs/DEEOs have no authority to refuse to sanction grant to such sanctioned posts that were filled up. The Act or the Rules do not contemplate getting of prior permission from any authority to fill the vacancies of non-teaching sanctioned posts.
(iii).The DEOs/DEEOs could deny sanction of grant only on the contingencies mentioned in Section 14 of the Act read with Rule 11 of the Rules and not on any other reasons.
(iv).The sanctioned posts cannot be taken away by the authorities by withholding the aid, by not approving the appointments, as these schools are already receiving aid for a long time.
(v).Since the collection of fees by the aided schools is prohibited, the State cannot issue directions to outsource these posts and to meet the expenses on their own.
(vi).The State is duty bound to provide free and compulsory education under Article 21-A of the Constitution at the school level and therefore, these schools shall not be denied aid.
(vii).After insertion of Section 14-A in the Act, no Private School established after 1991-92, is granted aid and the Schools concerned in these writ petitions were established much before 1991-1992 and are in receipt of aid. Thus, the refusal to sanction grant is bad.
(viii).As far as minority aided schools are concerned, they stand in a better-footing in view of the Constitutional guarantee under Article 30 of the Constitution and in view of the judgment of the Division Bench dated 17.12.1995 in W.P.No.4478 of 1974 etc. batch, declaring that Section 14 of the Act and Rule 11 of the Rules are not applicable to minority institutions and hence, the grant in aid shall not be denied to them.
(ix).Paucity of funds cannot be a ground for denying aid to the sanctioned non-teaching posts.
19.2. The learned counsels for the petitioners relied on various judgments to drive home their points.
20.1. The learned Special Government Pleader made the following submissions :
(i).The Government has powers to issue directions and instructions to the Aided Institutions, apart from framing Rules and if such directions and instructions are not complied with, the Government may withhold the aid permanently or temporarily. It was submitted that the payment of aid to Aided Schools is on the basis of orders issued from time to time. He placed heavy reliance on Rule 11(1) of the Rules in this regard.
(ii).The power to grant aid includes power not to grant aid and the right to refuse or to withdraw any grant is at the discretion of the Government.
(iii).It was submitted that the aid is not automatic and that right to receive aid is not a Fundamental Right.
(iv).The sanction of posts depends upon the overall financial consideration of the Government and the State is entitled to decide the payment of grant and also to refuse it depending upon the economic conditions of the State. He placed reliance heavily on Rule 15(1) of the Rules in this regard.
(v).The Private Aided Schools shall not make appointment to non-teaching posts without permission and reliance is placed on Rule 15(4) of the Rules in this regard. According to the learned Special Government Pleader, Rule 15(4) of the Rules applies to both, the teaching and the non-teaching staff.
(vi).The learned Special Government Pleader also made submissions relating to the ban on recruitment as imposed in G.O.Ms.No.212, dated 29.11.2001 and subsequent lifting of ban in G.O.Ms.No.14, dated 07.02.2006 and submitted that various judgments of this Court approving of the appointments made during that ban period were not correctly decided.
20.2. The learned Special Government Pleader relied on the judgment of the Apex Court in T.M.A.Pai Foundation V. State of Karnataka, (2002) 8 SCC 481, more particularly, paragraphs 50, 140 and 141 therein and also a Division Bench judgment of this Court in Maria Grace Rural Middle School V. The Government of Tamil Nadu, 2006 (5) CTC 193, more particularly, paragraphs 45 and 48 therein.
20.3. W.P.No.1740 of 2009 was allowed by this Court on 06.03.2009 setting aside the order of the DEO refusing to approve the appointment of the Office Assistant. On appeal, a Division Bench of this Court in W.A.(MD)No.29 of 2010, by the Judgment dated 23.03.2015 remanded the matter back for disposal by the learned Single Judge on the sole ground that no counter- affidavit was filed. Now the learned Special Government Pleader has submitted that the counter-affidavit filed in the similar cases could be taken as a counter and also filed written submissions, besides making oral arguments. It is a similar case as that of other cases.
21. I have considered the submissions made by either side.
22. It is not necessary to go in depth into various provisions of the Act and the Rules that govern the Private Aided Schools to decide these cases, except the provisions that are extracted hereinabove and hereinafter.
Now let me consider the submissions put forth by the learned counsels for the petitioners.
Submission (i) :
23.1. The learned counsels for the petitioners submitted that the Act and the Rules form a comprehensive legislative code dealing with the entire matters concerning the establishment, administration and closure of private aided schools, including the recruitment of staff, both teaching and non-teaching and as the field is thereby being occupied by a legislative code, the executive orders, such as the impugned Government Orders/Instructions/directions, cannot override the legislative scheme. This Court is of the considered view that the submissions of the learned counsels for the petitioners that the State Government, having enacted the Statute and also framed Rules thereunder cannot issue administrative instructions by way of Government Orders overriding the provisions of the Act and the Rules and these impugned orders and the impugned Government Orders (G.Os) and the Government Letters cannot go counter to the legislative intention of the Act and the Rules, have much force.
23.2. The judgments relied on by the learned counsels for the petitioners to drive home this point are discussed hereunder :
(a) B.N.Nagarajan V. State of Mysore, reported in AIR 1966 SC 1942 :
(i). The following passage in paragraph 5 of the aforesaid judgment in AIR 1966 SC 1942 is heavily relied on by the learned counsels for the petitioners and the same is extracted hereunder :
? (5) .... It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act.?
(ii). In that judgment, the law is declared very clearly by the Apex Court that the Statute could prevail over the executive instructions.
(b) B.N.Nagarajan V. State of Mysore, reported in (1979) 4 SCC 507 :
(i). The learned counsels for the petitioners relied on paragraphs 24 and 25 of that judgment and the same are extracted hereunder :
?24. In R.N.Nanjundappa V. T.Thimmiah, (1972) 1 SCC 409, also the question of regularisation of an appointment arose and this Court dealt with it thus:
?...Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.?
25. Apart from repelling the contention that regularisation connotes, permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof.
Regularisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other, words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution.?
(ii) The Apex Court in that judgment in categorical terms reiterated that the Statute could prevail over the executive instructions.
(c) Viveka Poorana Aided Elementary School V. The Director of Elementary Education and another, reported in 2004 W.L.R. 248:
(i). In the said case, a challenge was made to the impugned proceedings dated 26.05.2003 and 28.05.2003 issued by the Director of Elementary Education prohibiting the appointment of teachers in Private Aided Schools from 01.06.2003.
(ii). The petitioners therein contended that the impugned proceedings are contrary to the Rules framed under the Act. It was their specific case that the Rules framed under the Act specifically provide for appointment of teachers as soon as vacancies arise. The aforesaid submission of the petitioner was found favour by this court. Further, this Court also relied on an earlier order dated 16.08.1999 in W.P.No.10237 of 1998 batch, wherein, also a similar proceedings was quashed by this Court. It is useful to extract paragraphs 5, 6 and 10 of the said judgment :
?5. The learned counsel also points out that in similar situation on an earlier occasion in a batch of case, this Court has passed an order on 16.8.1999 in W.P.Nos.10237 of 1998 batch. In that the circular impugned therein is referred to is as follows:-
"The Director of education, while the matter was under serious consideration of the Government relating to the appointment of a high power committee on the basis of representations made by the management of several aided private educational institutions, has issued the impugned order on the ground that the Government had proposed to issue revised norms and guidelines for pupil-teacher ratio, to the effect that vacancies that arose due to death, retirement, voluntary retirement, resignation etc. In aided elementary schools, high schools and higher secondary schools should not be filled up with effect from 1.6.1994 till the issue of the revised new norms by the Government."
The validity of the circular was decided in that case; while quashing the impugned circular therein, the learned Judge further held that:
"I hold that by the imposition of the ban on filling up of vacancies of teachers, the fundamental right of the pupils to get education is affected. Moreover, the effect of the executive order passed by the Director of Education is that some of the provisions of Private Schools Act and the Private Schools Rules have become inoperative. It is relevant to notice that posts of teachers in private educational institutions are sanctioned posts and when subjects have been sanctioned and teachers have also been sanctioned depending upon the number of pupils in a particular school, I hold that it is not open to the Director of Education to impose a ban on the appointment of teachers."
The learned Judge finally held as follows :-
"Therefore, I hold that the orders passed by the Director of Education are not sustainable in law and they are liable to be quashed and accordingly, quashed. Consequently, the orders refusing to grant approval to the appointments made on the basis of the impugned orders issued by the Director of Education are also not sustainable in law."
6.The decision rendered by this Court in that batch of writ petitions is squarely applicable to the facts of the present case. In the present batch also a similar ban has been imposed by the same " Director of School Education" by circulars, which are almost identical with the circulars quashed earlier by this Court. In spite of the above decision rendered by this Court in a similar situation when a circular was issued prohibiting the filling up of a sanctioned posts when vacancy arose, the respondents have once again issued identical circulars which appears to have been done without taking due and proper care. Had the Director of School Education taken a litter more care or had the Director of School Education referred the matter for legal opinion, this circular would not have been issued, causing embarrassment to the Government. It is also bordering an act of contempt of court.
...........
10.The impugned circulars are in the nature of administrative instructions. A Division Bench of this Court held as early as 1956 in K. MUTHUVADIVELU vs. REGIONAL TRANSPORT OFFICER, VELLORE, N.A. DISTRICT AND ANOTHER (AIR 1956 MADRAS 143) that statutory Rule cannot override the provisions of an Act. The Supreme court in the case The Central bank of India and Other V. Their Workmen etc., (AIR 1960 SC 12), held that a "Rule must yield to the statute". Following this various High Courts have considered the nature of Rules, Regulations, by-laws and administrative instructions issued by the authorities. From the principles laid down by various High Courts including Madras High Court it can be safely stated that the inter relationship between Act, Rules, Regulations, by-laws, administrative instructions has been laid down by judicial pronouncements, and the cardinal principles of interpretation of statutes are as follows:
(i) a circular issued by any authority cannot over ride a Government Order;
(ii) an administrative order passed by way of a Government Order cannot over ride Statutory Rules framed under an Act;
(iii) a Statutory Rule cannot override the provisions of an Act passed by the legislature;
(iv) an Act cannot override the provisions of the Constitution.?
(iii). According to the petitioners, the batch of cases considered in that judgment pertains to the appointment of teachers in Private Aided Schools and now in these cases, it is relating to the appointment of non-teaching posts. Thus, in my view, this judgment squarely applies to the facts of these cases, as both, teaching and non-teaching staff are treated alike in the Act and the Rules for the purpose of filling up of the vacancies in those posts.
(d) The Director of School Education, College Road, Chennai ? 6 and others V. Geldon Wifred Viola and Another, reported in 2009 (2) TNLJ 101 (Civil) :
(i). The said judgment related to the appointment of Post Graduate Assistant in History. The concerned educational authorities refused to approve of the appointment of the teacher on the ground that she did not possess degree in history both at graduation level and at the post-graduation level, relying on the Rules relating to the appointment of Post Graduate Assistants in Government Schools.
(ii). Rejecting the contentions of the Department, a Division Bench of this Court held that the Act and the Rules govern the appointment of teachers in the Private Aided Schools. It is also held that the Rules framed under Article 309 of the Constitution that are applicable to Government Teachers could not be applied to the teachers in Private Aided Schools. The Division Bench referred to Rule 15 of the Rules and annexure V-A to the Rules and held that the requirement is only P.G. Degree in History and the candidate could have obtained a degree in differed subject. The following passages in paragraphs 3 and 5 of the said judgment are extracted in this regard :
?3. ..... Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 relates to the qualifications, conditions of service of teachers and other persons. As regard the appointment of the Junior Grade Post Graduate Assistant, Annexure V-A to the Rules contemplate a Master's Degree or its equivalent in the relevant subject and Bachelor's Degree or B.Ed., Degree or its equivalent. As regards the qualification of the teacher in question, there is no dispute that she has obtained B.Ed., Degree. However, the controversy is with regard to the fact that whether she possessed a Bachelor's Degree in History in terms of G.O.Ms.No.361, Education Department, dated 31.12.1999, or whether she would be qualified and eligible in terms of the Rules in the event she had obtained a Master's Degree in the subject when she had not obtained a Bachelor's Degree in the same subject in terms of the Rules.
5. ..... The Government Order G.O.Ms.361, Education Department, dated 31.12.1999, which is questioned though has been issued in exercise of the power under Article 309 of the Constitution of India, in our opinion, that would be made applicable only to the Government Servants viz., the teachers who are employed in the Government Schools and not to the teachers in the private schools, as those teachers are governed only by the provisions of the Act and the rules made thereunder. In the given case, as the rules contemplate only a Master's Degree in the subject for appointment of a Junior Grade Post Graduate Assistant and doe not mandate a Bachelor's Degree as well in the same subject. A teacher who has secured a Master's Degree in the subject would be entitled and is eligible for appointment to the post. The rejection of the request for approval to the said post is therefore erroneous, as it was done by following the Government Order G.O.Ms.361, Education Department, dated 31.12.2009.?
(iii). In my considered view, as rightly contended by the learned counsels for the petitioners, the said judgment in 2009 (2) TNLJ 101 (Civil) squarely applies to the facts of the cases and the only difference is that the said case relates to the teaching staff and we are in these writ petitions concerned with non-teaching posts.
(e) Rajasthan State Industrial Development and Investment Corporation V. Subhash Sindhi Cooperative Housing Society, reported in (2013) 5 SCC 427 :
(i). In that judgment, the view of the Apex Court in B.N.Nagarajan V. State of Mysore (AIR 1966 SC 1942) was again reiterated by the Apex Court in paragraph 27.
(ii) It is useful to extract paragraph 27 of the judgment in (2013) 5 SCC 427 as hereunder :
?27. Executive instructions which have no statutory force, cannot override the law. Therefore, any notice, circular, guidelines, etc. which run contrary to statutory laws cannot be enforced. [vide B.N.Nagarajan V. State of Mysore (AIR 1966 SC 1942), Sant Ram Sharma V. State of Rajasthan AIR 1967 SC 1910, State of Karnataka V. Umadevi (3) (2006) 4 SCC1 and Mahadeo Bhau Khilare (Mane) V. State of Maharashtra (2007) 5 SCC 524].?
(f) An order passed by the learned Single Judge of this Court dated 28.01.2013 in W.P.(MD)No.16346 of 2012 :
(i). In the said case, the petitioner therein, a teacher in a Private Aided School, questioned the order of suspension passed by the District Educational Officer.
(ii). The District Educational Officer placed reliance on G.O.Ms.No.407, School Education Department, dated 28.11.2012 and the proceedings of the Director of School Education dated 03.12.2012 for placing the petitioner therein under suspension.
(iii). This Court has categorically held that the Educational Agency in the case of Minority Private Aided School or the School Committee in the case of Non-Minority Private Aided School alone has power to keep a teacher under suspension. This Court also noted that there are only two situations, wherein, the Special Officer or the person other than the Educational Agency or the School committee would get the power to place a teacher under suspension. Those situations are, (i) the Special Officer appointed under Section 18-A of the Act ; and (ii) when there is a civil dispute relating to the administration of the school, an interim arrangement was made pending the civil dispute, in term of Section 53-A(2) of the Act,.
It is relevant to extract paragraphs 13 and 14 in this regard :
?13. Therefore, it is only under two circumstances that a person other than the Educational Agency or the School Committee would get the power to place a teacher under suspension. These two situations are (1) the appointment of a Special Officer under Section 18-A, and (ii) the issue of an interim arrangement pending a civil dispute, in terms of Section 53-A(2). But unfortunately, in this case, neither of the two contingencies has arisen, G.O.(1D)No.407, School Education, dated 28.11.2012 is not an order under Section 18-A, since the said order does not appoint a Special Officer to supersede the Educational Agency or the School Committee. It is also not an order under Section 53-A(2), since it does not nominate any person on the ground of pendency of a civil dispute with regard to the management of the Educational Agency.
14. It is true that the Government is entitled to delegate its power under Section 51. But, such delegation is possible only in respect of the powers that are vested in the Government. The only powers that are vested in the Government, could be traced to Sections 18-A and 53-A.?
(iv). Ultimately, this Court quashed the order of suspension, as it was passed without jurisdiction.
(g) State of Tamil Nadu, rep. by its Secretary to Government, School Education Department, Chennai and Others V. S.S.Somasundram, reported in 2008 (2) CTC 337 (FB) :
(i) The said case relates to appointment of a teacher in Private Aided School. The appointment of a Graduate Teacher by the Private Aided School concerned in that case was not approved of by the educational authorities on the ground that the teacher was not sponsored through employment exchange, as contemplated in G.O.Ms.No.873, dated 13.11.1995 and G.O.Ms.No.1138, dated 25.09.1978.
(ii). This Court issued an interim direction to pay salary to the teacher and also not to terminate the services pending disposal of the writ petition, that was preferred by the teacher, questioning the order of the educational authorities refusing to approve of the appointment. Against the said order, a Writ Appeal was filed. The matter was referred to the Full Bench.
(iii). The Full Bench of this Court held that Rule 15(4)(i) of the Rules would prevail over the G.O.Ms.No.1138, dated 25.09.1978 and the said G.O.Ms.No.1138 need not be followed.
(iv). G.O.Ms.No.1138, dated 25.09.1978 contemplates that appointment shall be made from the candidates sponsored by the employment exchange. In the said case, the appointment was made by the School by advertising the vacant post in the newspapers and calling for applications from the open market. The appointment made after selection was rejected by the educational authorities and they declined to approve such appointment made pursuant to the advertisement.
(v). The Full Bench interpreted Rule 15(4)(i) of the Rules in such a way that the appointment of a teacher could be made by advertisement in the open market and the same need not be confined to employment exchange alone. The Full Bench followed the judgment of the Apex Court in Excise Superintendent Malkapatnam, Krishna District, A.P. V. K.B.N. Vishweshwara Rao and others, 1996 (6) SCC 216.
(vi). The following passage in paragraph 5 of the said judgment in 2008 (2) CTC 337 (FB) is extracted in this regard :
5. ..... that Rule 15(4)(i) of the School rules alone will prevail and G.O.Ms.No.1138 dated 25.9.78 need not be followed.?
(h) K.Michael Antony V. State of T.N., reported in (2010) 4 MLJ 1207 :
(i). In that case, the issue arose is as to whether the Tamil Nadu State and Subordinate Services Rules framed in exercise of powers conferred by the proviso to Article 309 of the Constitution would apply to the teachers in Private Aided Schools.
(ii). The matter relates to alteration of Date of Birth of a teacher in a Private Aided School.
(iii). This Court held that the Tamil Nadu State and Subordinate Services Rules would not apply to the teachers in Private Aided Schools.
Paragraph 11 of the said judgment is extracted in this regard :
?11. Under Article 309 of the Constitution of India, the Governor of a State has the authority to make rules regulating recruitment and the conditions of service of persons appointed in public service in connection with the affairs of the State. Therefore, by no stretch of imagination it can be said that Tamil Nadu State and Subordinate Service Rules would apply to the teachers working in Private Schools.?
(iv). This Court held that the said Rule would apply to Government teachers and the alteration of Date of Birth of the teacher in the Aided Schools shall be done in accordance with the Act and the Rules.
(i) Director of Elementary Education, College Road, Chennai and Others V. G.Vijayalakshmi, reported in (2015) 6 MLJ 315 :
(i). In that case the issue that arose for consideration is as to whether the Tamil Nadu Government Servant Conduct Rules would apply to the teachers employed in Private Aided Schools.
(ii). A Division Bench of this Court held that the said Rules would not apply to the teachers of Private Aided Schools.
(iii). The Division Bench held in paragraph 35 of the said judgment that the Director of Elementary Education could not apply the Government Orders to the teaching and non-teaching staff governed by the Act and the Rules. Paragraph 35 of the said judgment in (2015) 6 MLJ 315 is extracted hereunder :
?35. Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, have been framed, in exercise of the powers, under Section 56 of the Act. Both the Act and the Rules do not speak about the powers of the Director of Elementary Education, to make any Government Order, ipso facto, applicable to both the teaching and non-teaching staff, in the schools, recognised and governed by the Tamil Nadu Recognised Private Schools (Regulation) Act. As stated supra, Government Orders, referred to in the earlier paragraphs, were issued by the Government, while dealing with Rule 24-A of the Tamil Nadu Government Servant?s conduct Rules, 1973, which is applicable only to government servants. Code of conduct, as prescribed in Annexure-II, in terms of Section 21 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, read with Rule 16 of the Rules framed thereunder, alone can be made applicable to teaching and non-teaching staff, working in recognised schools. No doubt, by addition or deletion of substitution, an amendment can be made to the statutory provisions dealing with the code of conduct for the staff in a recognised private school, by the Government and consequently, modify the code of conduct prescribed in Annexure-II. But the Director of Elementary Education, Chennai, cannot import rule 24A of the Tamilnadu Government Servant Rules into the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the rules made thereunder. Incorporation of Section 24A directly into the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, is beyond the legislative competence of the Director of Elementary Education and such a course is impermissible under the statutory provisions. The School Committee has the powers to appoint and dismiss a teaching staff. Such committee also has the powers to grant leave to any staff.? In my considered view, all the aforesaid judgments are squarely applicable to the facts of these cases and the Act and the Rules would prevail over the Government Orders/Government Letter/impugned orders passed by the DEOs/DEEOs.
Submission (ii) :
24.1. The learned counsels for the petitioners submitted that once the posts are sanctioned by the Director under Rule 15(1) of the Rules, the DEOs/DEEOs are bound to sanction grant as per Rule 11(2) of the Rules and there is no need to get prior permission from any authority to fill the vacancies that would arise in those sanctioned posts. Unless the State Government suitably amends the provisions of the Act and the Rules making it mandatory to obtain prior permission for filling up of those sanctioned non-
teaching posts, the Government could not issue impugned Government Orders. I am in entire agreement with the said submission. Since there is no such provision in the Act and the Rules to seek prior permission, the official respondents in these writ petitions, DEOs/DEEOs, could not rely on the impugned Government Orders/Government Letters to seek permission of the State Government or the Director or any authority to fill up the sanctioned posts for approving of the same for the purpose of grant and therefore, the impugned Government Orders and the consequential proceedings refusing to approve of the non-teaching posts for the purpose of grant are issued in gross violation of the provisions of Sections 19 and 20 of the Act read with Rule 15 of the Rules.
24.2. The judgments relied on by the learned counsels for the petitioners to substantiate this submission are discussed hereunder :
(a) S.Christy V. The Chief Educational Officer, Kanyakumari District and others, reported in 2011 (5) CTC 532 :
(i). The petitioner in that case was appointed as Post Graduate Assistant in an Aided Minority School. The appointment was not approved of on the ground that no prior permission was obtained before making the appointment from the educational authorities.
(ii). This Court categorically held that no prior approval is required to appoint the teacher in the sanctioned post. It is useful to extract paragraph 5 of the said order in this regard :
?5. In view of the settled law by this Court, the stand taken by the respondent in not considering the case of the petitioner for granting approval of the petitioner is not sustainable in law, as on true interpretation of rule 15, only conclusion which can be drawn is, that for appointment to sanctioned post, no prior approval is necessary, nor it can be a ground to deny the approval to appointment of a qualified person.?
(iii). Thus, this Court categorically held that no prior approval is necessary for the appointment of a teacher in a sanctioned posts.
(iv). Curiously, against the said order, a Writ Appeal was preferred by the Private Aided School. The appeal was dismissed, confirming the order of the learned Single Judge, by a Division Bench of this Court in The Manager, Concordia High and Higher Secondary Schools V. Tmt.S.Christy and Others, reported in 2013 Writ L.R. 691. It is relevant to extract paragraph 4 and the following passage in paragraph 6 of the said Division Bench Judgment in 2013 Writ L.R. 691 as hereunder :
?4. In considering the contentions as put forth in the writ petition, learned single Judge pointed out to the judgment passed by this Court in W.A.Nos.93 and 94 of 2009 decided on 06.01.2010 that for any sanctioned post, no prior approval is necessary. In respect of proceedings noting the availability of posts, the learned single Judge pointed out that there is no necessity for prior approval. In any event, the appointment without getting approval could not be a ground for not considering the writ petitioner's plea. Accordingly, this Court allowed the writ petition directing the respondents therein to forthwith grant approval for appointment, within a period of two months from the date of receipt of certified copy of the order of the writ Court.
6. We fail to understand the logic of the Management in challenging the order, particularly when the Management does not dispute the appointment of the first respondent in the place of the retired teacher and there is a specific direction to the respondents in the writ petition to approve the appointment of the writ petitioner for granting further service benefits including the salary. ....?
(b) Dr.S.Sukumaran V. State of Tamil Nadu rep. by its Secretary, Higher Education, Fort St. George, Chennai and Others, reported in (2012) 5 MLJ 670 :
In that case, a similar question arose for consideration as to whether the Private Aided Minority College has to get prior permission from the Education Department before filling up of the sanctioned posts. This Court held in categorical terms that the Private Aided Minority College need not seek prior approval for appointment in a sanctioned post. Paragraph 9 of the said judgment is extracted in this regard :
?9. The point arises for consideration in this writ petition is as to whether the petitioner is entitled to get his appointment approved from the second respondent as he is appointed in a sanctioned post in the fourth respondent aided minority college, in a retirement vacancy. The retirement vacancy arose on 31.5.2008. The fact about the availability of the post in the fourth respondent-college as per the staff fixation order is not in dispute and the same is also not the contention raised by the second respondent in the reply to the RTI query. The petitioner having been appointed in a sanctioned post of the fourth respondent-college and the fourth respondent-college being a minority college, there is no necessity to get prior permission from the department and the said issue was considered by me in detail in W.P.No.19715 of 2009, dated 31.3.2011 and a direction was issued to approve the appointment of the petitioner following the Division Bench judgments. In the recent Division Bench judgment in W.A.No.2345 of 2011, dated 5.3.2012 also, same view is taken.
(c) S.Rasheetha Banu V. State of Tamil Nadu, rep. by its Secretary to Government, Chennai and others, reported in (2012) 4 MLJ 198 :
A similar question arose for consideration in that judgment also. It is categorically held by this Court that if a person is appointed in a sanctioned post in the Private Aided Minority School, the approval cannot be rejected for the purpose of grant on the ground that no prior permission was obtained before appointment. It is useful to extract paragraph 7 of the said order in this regard :
?7. The issue involved in this Writ Petition was already considered by a Division Bench of this Court in W.A.No.1263 of 2001, dated 22.1.2004. In the said Judgment, it is held that if a person is appointed in a sanctioned post, the approval of appointment cannot be rejected and if there is fall in strength and the post become surplus, after granting approval of the post, the said teacher along with post could be transferred/deployed to a needy school. The said Judgment of the Division Bench was followed in W.P.(MD)No.11353 of 2008, dated 11.9.2009. As against the said order dated 11.9.2009, the department preferred W.A.(MD)No.703 of 2009. A Division Bench of this Court, by Judgment dated 1.2.2011, dismissed the said Writ Appeal.?
(d) C.Manikandan V. State of Tamil Nadu rep. by its Secretary, Department of Higher Education, Chennai and others, reported in (2012) 4 MLJ 918 :
The issue came up for consideration before this Court in that case is as to whether the Private Aided Minority College has to seek prior permission to fill up the sanctioned non-teaching post of Waterman. This Court held that it is not necessary. It is useful to extract paragraph 19 of the said order as hereunder :
?19.Insofar as the other point with regard to the requirement of prior permission before filling up the vacancy is concerned, it is seen that the post of Waterman was sanctioned by the second respondent through his proceedings dated 27.05.1977 and the said post was not resumed are withdrawn later. Therefore, when the petitioner was appointed in the year 1996 by the 5th respondent-college to the post of Waterman, the said post was very much available with 5th respondent-college as a sanctioned post and consequently, when the petitioner was appointed in a sanctioned post by the 5th respondent- college there need not be any prior permission from the respondents 1 to 3 before filling up the said post. The same issue as to whether any prior permission is required before filling up the post in a sanctioned vacancy was considered by a learned Single Judge of this Court in W.P.No.4960 and 14450 of 1997 dated 10.07.2007 (cited supra) and the learned single Judge has held that once the appointment of the person in a sanctioned post is made in accordance with law no prior permission from the Directorate of Collegiate Education is required. The said order of the learned Single Judge was appealed against in W.A.No.92 and 93 of 2008 and the Hon'ble Division Bench dismissed the Writ Appeals on 06.01.2010 by observing as follows at paragraphs 3 and 4:-
"3.The learned single Judge has dealt with both the above said Writ Petitions together and by following the decision of this Court rendered in W.P.No.28396, dated 29.03.2006, the learned Judge has categorically held that once appointment of a person in a sanctioned post is made in accordance with law, no prior permission from the Director or Collegiate Education is required. While holding so, the learned Judge has quashed the impugned proceedings, dated 28.02.1997 and directed the appellants to approve the writ petitioner's (C.Karunakaran) appointment from 2.7.1990 with all consequential service benefits.
4.In view of the such a categoric conclusion of the learned single Judge which was arrived by him by following the earlier decision of this Court rendered in W.P.No.28396, dated 29.03.2006, we do not find any scope to interfere with the said order, except to confirm the same."
(e) P.Ravichandran V. State of Tamil Nadu rep. by Secretary to Government, Department of Higher Education, Chennai and others, reported in (2013) 7 MLJ 641 :
A Division Bench of this Court in that judgment held that the Director of Collegiate Education cannot insist Private Aided College managements to get prior permission to fill up the vacancies in the sanctioned posts, by issuing circulars/administrative instructions. It is relevant to reproduce paragraphs 14, 17 and the following passage in paragraph 20 of that judgment hereunder :
?14. In the light of the above statutory provisions, the Director of Collegiate Education cannot insist Private Aided College managements to get prior permission to fill up the vacant posts available in sanctions posts, by issuing circulars/administrative instructions.
17. A Division Bench of Madurai Bench of this Court in W.A.(MD)No.462 of 2006, judgment dated 1.12.2006, considered the scope of Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 relying upon the earlier order passed on 13.8.2006, and held that for filling up an existing post in a Private Aided College, no prior approval is necessary as any such appointment shall be subsequently approved by the Department, and at that point of time the Department would have an opportunity to consider the availability of such post and rejection of approval on the ground that no prior approval was obtained before appointment, was set aside. Same is the view taken in the following orders of this Court:
(i) W.P.No.30618 of 2005, order dated 21.9.2005;
(ii) W.P.No.28396 of 2004, order dated 29.3.2006;
(iii) W.A.Nos.92 & 93 of 2008, judgment dated 6.1.2010;
(iv) W.P.(MD)No.174 of 2009, order dated 27.4.2010;
(v) W.A.Nos.140, 811/2006 & 805/2007, judgment dt.21.10.2010;
(vi) W.A.No.2858 of 2010, judgment dated 21.3.2011;
(vii) W.A.(MD)No.1088 of 2011, judgment dated 19.10.2011;
(viii) W.A.No.2345 of 2011, judgment dated 5.3.2012;
(ix) (2012) 5 MLJ 670 (Dr.S.Sukumaran v. State of Tamilnadu) rendered by one of us (NPVJ); and
(x) W.A.No.474 of 2013, judgment dated 3.4.2013.
Thus, the issue regarding seeking prior permission for filling up the vacant post in aided College within the academic year was already settled in series of decisions and all the above said orders are implemented by the respondents 1 and 2. In such circumstances, it is not open to the respondents to again and again contend that only after getting prior permission from the Director of Collegiate Education, vacant sanctioned posts can be filled up by the management.
20. In the light of the above findings as well as the decisions, we conclude this Judgment in the following manner:
(1) There is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.?
In my considered view, all these judgments are squarely applicable to these cases and the DEOs/DEEOs shall not insist prior permission from the Government or any authority to fill up the vacancies in non-teaching sanctioned posts. The DEOs/DEEOs are bound to sanction grant as per Rule 11(2) of the Rules.
Submission (iii) :
25. It was submitted that the Government, being financing authority, is entitled to withhold the grant. It is true. However, such withholding of grant shall be made in accordance with the Act and the Rules.
The DEOs/DEEOs, while considering the sanction of grant for the non-teaching posts, that are filled against sanctioned posts, could deny the grant only in the following contingencies, as contemplated under Section 14 of the Act read with Rule 11 of the Rules :
(i) If there was withdrawal of recognition of the school, as provided in the proviso to Rule 11(1) of the Rules.
(ii) If there was non-compliance with the provisions of the Act and the Rules and the directions issued thereunder by the School as per Section 14(2)(i) of the Act.
(iii) If there was non-payment of pay and allowances to the staff, as per Section 14(2)(ii) of the Act.
(iv) If there was contravention of the Rules by the School, as contemplated under Section 14(2)(iii) of the Act.
Admittedly, in none of these cases, these grounds were cited to deny the grant. Hence, the impugned orders and the impugned Government Orders and the Government Letter are illegal and opposed to Section 14 of the Act and Rule 11 of the Rules.
Submission (iv) :
26. It is contended by the learned counsels for the petitioners that the sanctioned posts in the aided schools under Section 19 of the Act read with Rule 15 of the Rules cannot be taken away by withholding/refusing aid, by not sanctioning grant for the sanctioned posts by the impugned Orders, impugned Government Orders and the Government Letter. I am in entire agreement with the said submission, as it is based on the categorical statutory provisions.
Submission (v) :
27.1. It was also submitted that the collection of fees by these aided schools is prohibited under Section 32 of the Act read with Rule 23 of the Rules.
27.2. It is relevant to extract Section 32 of the Act and Rule 23 of the Rules :
32. Fees and other charges - (1) Subject to the provisions of sub-
section (2), no private school shall levy any fee or collect any other charges or receive any other payment except a fee, charge or payment specified by the competent authority.
(2) Every private school in existence on the date of the commencement of this Act and levying different rates of fees or other charges or receiving any other amount on such date, shall obtain the prior approval of the competent authority before continuing to levy such fees or charges or receive such payment.
23. Fees and other charges - (1) The competent authority to specify the fee or charges or receive any other payment in respect of every private school shall be the Chief Educational Officer. No fee or other charge or donation of any kind shall be collected either from the pupils or from parents or from public, except with prior permission of the competent authority. In respect of special fees, the levy of which has been specified by the competent authority, there shall be no deviation from the permitted rate or the purpose for which such levy was authorised. A separate account shall be maintained for such special fees and unutilised amount at the end of the year shall be carried over to the next year's account under the same head. All moneys that accrue to the school by way of special fees or any other payment authorised shall be brought to the school account and accounted properly.?
27.3. In view of Section 32 of the Act and Rule 23 of the Rules, the State cannot issue direction under the impugned Government Orders to fill up the non-teaching posts by way of outsourcing and to meet those expenses by themselves. Such a direction is violative of Section 32 of the Act and Rule 23 of the Rules.
27.4. Thus, denial of aid by the State to these sanctioned posts in Private Aided Schools is contrary to the scheme of the Act and the Rules.
27.5. Further, when Rule 15 of the Rules makes it clear that regular vacancies shall be filled only on regular basis, direction issued in the impugned Government Orders to fill the sanctioned posts by way of outsourcing method is illegal and violative of the Statutory Rules. It is well-settled that once the Statute contemplates a thing is to be done in a particular way, i.e., regular vacancies shall be filled on regular basis, the Private Aided Schools are bound to follow the same and they could not resort to outsourcing. Thus, if any such direction is issued by the Government or any authority, the same is illegal.
Submission (vi) :
28.1. As far as School Education is concerned, the State is duty bound to provide free and compulsory education, as mandated under Article 21- A of the Constitution and the Right of Children to Free and Compulsory Education Act, 2009 and therefore, the private aided schools, that are imparting free education to the downtrodden and the underdogs, shall not be denied aid to the non-teaching posts by the impugned orders, impugned Government Orders and the Government Letter.
28.2. The Apex Court in State of H.P. V. H.P. State Recognised and Aided Schools Managing Committees, reported in (1995) 4 SCC 507, held that Article 21-A covers the students upto the 9th Standard. That is, the State is bound to provide free and compulsory education upto the 9th Standard.
28.3. Further, taking into account, Articles 41 and 46 of the Constitution along with Article 21-A of the Constitution, the State is bound to provide free and compulsory education upto the School level, i.e., upto 12th Standard (Secondary Education). Since the Secondary Education includes upto 12th Standard, the standards upto 9th Standard are inseparable from the Standards 10 to 12. At the least, the State shall continue to pay the aid to the Private Aided Schools concerned in these writ petitions that have been receiving grants for the non-teaching posts for several decades. The Private Aided Schools herein are not seeking fresh aid outside the purview of the Act and the Rules. In the case of higher education alone, the State can plead its incapacity in view of Article 41 of the Constitution read with the judgments referred to above.
28.4.1. In Mohini Jain V. State of Karnataka, (1992) 3 SCC 666, the Apex Court held that Article 21 has been interpreted by the Apex Court to include the right to live with human dignity and all that goes along with it. It is also held therein that the right to education flows directly from right to life.
28.4.2. The aforesaid view of the Apex Court in Mohini Jain V. State of Karnataka, (1992) 3 SCC 666, was approved in Unni Krishnan V. State of A.P., (1993) 1 SCC 645. While the judgment in Mohini Jain's case, held that the right to education at all level is the fundamental right of a citizen, in Unni Krishnan's case, the Apex Court held that right to free and compulsory education is fundamental right only upto the age of fourteen years, though no such provision is found in the Constitution. Only thereafter, Article 21-A was inserted in the Constitution.
28.4.3. In both the judgments in Mohini Jain V. State of Karnataka, (1992) 3 SCC 666, and in Unni Krishnan V. State of A.P., (1993) 1 SCC 645, the Apex Court held that right to education is implicit in and flows from the right to life guaranteed under Article 21. The said view expressed in those judgments to the said extent was not overruled in T.M.A.Pai Foundation V. State of Karnataka, (2002) 8 SCC 481.
28.5. At this juncture, it is useful to refer to the order of this Court in Nehru Middle School rep. by its Correspondent V. Director of Elementary Education, reported in 2007 (6) MLJ 594. The issue came up for consideration before this Court in that judgment is as to whether prescription of a policy by the Director prescribing 3 Kms prohibition rule for establishing the Middle School is correct or not. This Court held that the prescription of 3 Kms prohibition rule by the Director is against the legislative policy of the State set out in the Tamil Nadu Compulsory Education Act, 1994. It is useful to extract 10 of the said judgment in this regard :
?10.In fact, the policy of the Director in prescribing 3kms prohibition rule itself goes against the Legislative Policy of the State set out in the Tamilnadu Compulsory Education Act, 1994. It envisages that the state has to provide schools and parents who did not send their children to the school will be punished. In fact, the legislative prescription found in Tamilnadu provides compulsory education to the children has a history behind it.?
28.6. In my view, the principle laid down in the said judgment squarely applies to the facts of these writ petitions. The Tamil Nadu Government enacted Tamil Nadu Compulsory Elementary Education Act, 1994, even before insertion of Article 21-A in the Constitution and the enactment of Right of Children to Free and Compulsory Education Act, 2009, that provides for compulsory education upto the age of fourteen.
28.7. The statement of objects and reasons for enacting the said Act is mentioned in the said Act itself which reads as follows :
?Statement of objects and reasons ? In terms of Article 45 of the Constitution of India, the State shall endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years. A policy decision has now been taken by the Government of Tamil Nadu to provide compulsory elementary education for all children of school age in this State. To give effect to that policy decision, it is necessary to make elementary education compulsory for all children of school age. It is also necessary to make it obligatory on the part of the every parent or guardian of a child of school age to cause the child to attend to an elementary school.?
28.8. Section 2(8) of the said Act states that the school age of a child shall be prescribed and the said Section reads thus :
?2. Definitions ? In this Act, unless the context otherwise requires ? (8) ?school age? in relation to a child means such age as may be prescribed;?
28.9. Rule 5 of the Tamil Nadu Compulsory Elementary Education Rules, 1998, prescribes that a child upto the age of fourteen is entitled to compulsory education. The said Rule 5 reads as follows :
?5. School age ? School age in relation to a child means, the period of life of a pupil form the date on which he attains the age of six until he receives elementary education upto standard V in an elementary school or until he attains the age of fourteen.?
28.10. In my view, that every child has a Fundamental Right for free and compulsory education upto +2 level, i.e., the 12th Standard. Hence, the schools that are already getting aid upto Standard XII level cannot be denied the aid. The Private Aided Schools concerned in these writ petitions are in receipt of aid upto the Middle School/High School/Higher Secondary School level. It is a different matter that if they sought for aid afresh for the schools. At the risk of repetition, it is to be reiterated that these schools are in receipt of aid for so many decades and therefore, the same cannot be deprived by the State now, since I held that every child has fundamental right for free and compulsory education upto +2 level.
Submission (vii) :
29.1. The schools before this Court have been getting aid for a long time. The Government took a policy decision not to grant aid to the schools established after 1991-1992, by inserting Section 14-A of the Act. It is not the case of the educational authorities that these schools are seeking grant in aid contrary to Section 14-A of the Act, as these schools are not new schools established in or after 1991-1992.
29.2. It is the submission of the learned counsels for the petitioners that the State Government almost stopped opening of new schools and stopped aid to schools established in and after 1991-1992. This resulted in mushrooming of self-financing schools and thereby resulting in commercialization of education. Hence, the State shall not deny aid to the non-teaching posts to the Private Aided Schools which are in receipt of aid for many decades. As per Section 14-A of the Act, no Private School that is established after 1991-1992 can seek aid as a matter of right. But, if the Schools are already receiving aid, the same cannot be denied. In fact, after introduction of Article 21-A to the Constitution, the State cannot deny aid at the school level and more particularly, upto the 12th Standard.
29.3. The judgment in Chandigarh Administration V. Rajni Vali, reported in 2000 (2) SCC 42 is relied on in this regard, wherein, right to free education is recognized at the school level.
29.4. Thus, the schools concerned in these writ petitions cannot be denied aid citing Section 14-A of the Act.
Submission (viii) :
30.1. A substantial number of schools in these writ petitions are Private Aided Minority Schools and the State shall not refuse to sanction grant to these schools, as these schools stand in a better-footing and are protected by Article 30 of the Constitution.
30.2. In view of the judgment of the Division Bench of this Court dated 17.12.1975 in W.P.No.4478 of 1974 etc. batch, Section 14 of the Act and Rule 11 of the Rules, that are relating to sanction of grant, are not applicable to the Private Aided Minority Schools and only the Tamil Nadu Minority Schools (Regulation and Payment of Grant) Rules, 1977 are applicable to them.
30.3. The impugned Government Orders and the Government Letter could not be cited against the Minority Institutions, in the light of the judgment of the First Bench of this Court dated 17.12.1975 in W.P.No.4478 of 1974 etc. batch, referred to above, and Article 30 of the Constitution, to deny the grant to the sanctioned non-teaching posts, while these schools are already in receipt of the same.
Submission (ix) :
31.1. In the light of the Tamil Nadu Compulsory Elementary Education Act, 1994 and Article 21-A of the Constitution read with the Right of Children to Free and Compulsory Education Act, 2009, I am of the considered view that the State cannot deny aid to the Private Aided Schools at School level. That is, it cannot be denied upto the 12th Standard level. Article 21-A of the Constitution was considered by the Apex Court in State of H.P. V. H.P. State Recognised and Aided Schools Managing Committee, reported in 1995 (4) SCC 507. The Apex Court held in that judgment that even in the High Schools and the Higher Secondary Schools, the State Government is bound to provide free education upto the 9th Class, that is, students upto the age of fourteen years. The following passage in paragraph 15 of the judgment in (1995) 4 SCC 507 is usefully extracted hereunder :
?15. .... The net result is that even in High and Senior Secondary Schools up to 8th/9th class ? the students being 14 or below ? the State Government is bound to provide free education and as such bound to meet the total expenditure of the schools to that extent. ....?
31.2. By applying the aforesaid principle, I am of the view that the classes in High Schools that imparts education upto the 10th Standard are inseparable from others lower classes. That is, the State cannot say that they could grant aid upto the 9th Standard and they could deny aid to the 10th Standard. No teacher or non-teaching staff could be appointed exclusively for the 10th Standard. It is impossible. Likewise, classes in Higher Secondary Schools imparting education upto +2 level, that is, the 12th Standard, cannot also be separable and the State could not say that it would grant aid only upto the 9th standard and it would not grant aid for Standards 10 to 12. In my view, classes from the 10th Standard to the 12th Standard could not be separated from other classes and they do form an integral part of the classes from 1 to 9 of the School.
31.3. In Chandigarh Administration V. Rajni Vali, reported in 2000 (2) SCC 42, the Apex Court held that higher secondary classes do not constitute a separate and independent institution. It is useful to extract the following passage in paragraph 5 of the said judgment :
?5. .... It is not the case of the appellants that the higher secondary classes constitute a separate and independent institution.?
31.4. Furthermore, it is a different matter, if one wants to establish a Self-Financing Institution, requiring no aid. It is their right to have such institutions. But if a Private School seeks aid, the Constitutional mandate as per Article 21-A is that the same cannot be denied on the ground of paucity of funds. Paucity of funds could be cited as a reason only for higher education, in view of Article 41 of the Constitution.
But such a stand cannot be taken by the State in the case of School Education.
31.5. At this juncture, it is useful to extract paragraph 16 of the judgment of the Apex Court in State of H.P. V. H.P. State Recognized and Aided Schools Managing Committee, reported in 1995 (4) SCC 507, wherein, the Apex Court categorically ruled that paucity of funds cannot be a reason to deny aid at the school level :
?16. The Constitutional mandate to the State, as upheld by this Court in Unni Krishnan V. State of A.P., (1993) 1 SCC 645 - to provide free education to the children up to the age of fourteen ? cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity.?
31.6. In Chandigarh Administration V. Rajni Vali, reported in 2000 (2) SCC 42, the Apex Court held that paucity of funds cannot be cited as a reason to deny aid. It is useful to extract the following passage in paragraph 10 of the said judgment :
?10. The State Administration cannot shrink its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the authorities running the Administration to find out the ways and means of securing funds for the purpose.?
31.7. It is relevant to note that those judgments were rendered prior to insertion of Article 21-A in the Part III relating to Fundamental Rights in the Constitution.
31.8. Hence, financial consideration cannot be a relevant factor in the matter of grant of aid at school level after insertion of Article 21-A in the Constitution and in the light of the judgments referred to above.
Further, when the Private Aided Schools herein are in receipt of aid from the Tamil Nadu Government for a long time, the same cannot be denied.
31.8. In any event, the term ?financial considerations? used in Rule 15(1) of the Rules could not be cited to deny aid to the schools, that are in receipt of aid, after introduction of Section 14-A of the Act declaring the policy decision of the State not to make grant for the schools that are established after 1991-1992.
Now let me consider the submissions of the learned Special Government Pleader in detail :
Submission (i) :
32.1. The crux of the submission was that the Government has powers to issue directions and instructions with regard to aid to the Private Aided Schools and there is no restriction with regard to issuance of directions/instructions. That is, according to the learned Special Government Pleader, the Government has unfettered power to issue directions/instructions in relation to the grant of aid. He placed reliance on Rule 11(1) of the Rules and more particularly, the later portion in Rule 11(1) of the Rules. It is better to extract Rule 11(1) of the Rules :
?11. Payment of grants ? (1) Recognized private schools may be paid grants from State funds directly or through Panchayat Unions. Such payment of grants shall be subject to Government Orders and instructions issued from time to time :
Provided that, schools whose recognition have been withdrawn shall not be entitled to any grant for the period of such withdrawal of recognition.?
32.2. Emphasis is made to ?such payment of grants shall be subject to Government Orders and instructions issued from time to time? that appears in the later portion of Rule 11. I am not in agreement with the submission made by the learned Special Government Pleader that the Government has unfettered power to issue directions and instructions in relation to the grant of aid to the Private Schools, that are governed by the Act and the Rules. The directions and instructions that could be issued by the Government should be under the Act and the Rules and the same cannot be outside the Act and the Rules.
32.3. While the learned Special Government Pleader made extreme proposition, as stated above, the learned counsels for the petitioners has put a very narrow interpretation contending that ?such payment of grants shall be subject to Government Orders and instructions issued from time to time? that appears in Rule 11 would be confined to the question as to whether the grant should be given directly or through Panchayat Unions.
32.4. I am of the view that both the contentions are of extreme nature. In my considered view, the orders and instructions referred to in Rule 11(1) of the Rules shall be referable to the orders and instructions that could be prescribed under Section 14(2)(iii) of the Act read with Rule 15 of the Rules. Rule 15 deals with qualifications, conditions of service of Teachers and other non-teaching staff. This rule is referable to Section 19 of the Act. Rule 15(1) of the Rules contemplates that the number of posts in teaching and non-teaching side shall be fixed and those posts shall be sanctioned by the Director based on the parameter indicated in Rule 15(1).
That is, if any Private Aided School seeks to appoint beyond the sanctioned post, the same is not permissible and the same is violative of Section 14(2)(iii) of the Act read with Rule 15(2) of the Rules. Likewise, the regular vacancy shall be filled on regular basis as contemplated under Rule 15(3) of the Rules. If it is not done, the grant could be declined. In the same way, one does not possess the required qualification prescribed in Annexure V of the Rules read with Rule 15(6) of the Rules, the grant could be declined. In the case of Non-Minority Educational Institutions, Rules 15(7) and 15(8) of the Rules provide for reservation and if the rule of reservation is not followed, the grant could be declined. But the State could not decline grant of aid by issuing instructions or orders at its discretion. The payment of grant is statutorily governed by Sections 14, 15 and 19 of the Act read with Rules 11 and 15 of the Rules.
32.5. The learned Special Government Pleader also placed reliance on Section 14(1) of the Act and contended that grant is subject to the Rules as may be prescribed. That is according to him, the Government could issue any directions or instructions and such directions/instructions are referable to Section 14(1) of the Act.
32.6. I am not agreeable to such submission also. Section 14(1) of the Act was inserted by the Tamil Nadu Act 11 of 1999, when Section 14-A was introduced in the Act. Section 14-A was inserted to deny aid to the schools that are established after 1991-1992 or opening of any classes or course of instruction after 1991-1992. It is a policy decision of the State. While so, Section 14(1) was inserted stating that grant would be continued to the schools that are already in receipt of aid at the rate and for the purpose as prescribed. Section 14(1) has to be read along with Rule 11(3) of the Rules. Rule 11(3) makes it very clear that the rate and purpose for which the grant may be paid shall be as specified in Annexure I to the Rules. Annexure I to the Rules is with the heading ?Payment of Grant?. While Annexure I provides for full grant to cover the entire approved expenditure on pay and other allowances, both teaching and non-teaching staff including other servants paid from contingencies, the said provision restricts the grant in relation to the Training Institutes. The Training Institutes is entitled to teaching grant at the rate of 2/3 of the net approved expenditure on pay to the staff, rent, taxes, repair and contingencies and 1/2 of the expenditure on Dearness Allowance, City Compensatory Allowance and House Rent Allowance.
32.7. Since Rule 11 of the Rules and Section 14 of the Act are held not to be applicable to the Minority Private Aided Schools, in view of the Division Bench judgment dated 17.12.1975 in W.P.No.4478 of 1974 etc. batch, the Government had to issue Tamil Nadu Minority Schools (Regulation and Payment of Grant) Rules, 1977, that provides for the rate and for the purpose for which, the grant could be paid to the Minority Institutions. Therefore, I am of the view that any order or instructions that could be issued by the Government relating to aid shall be within the parameters of Section 14 of the Act read with Rules 11 and 15 of the Rules.
32.8. In my view, G.O.Ms.No.115, dated 30.05.2007, G.O.Ms.No.203, dated 23.07.2010, and the Government Letter dated 09.07.2012 are without jurisdiction and violative of the very scheme of the Act and nowhere the Act contemplates that the Private Aided Schools should take prior permission before making appointment against sanctioned posts, whenever vacancies arose against those sanctioned posts.
32.9. At the risk of repetition, it is to be reiterated that in all these cases, even as per the admission of the learned Special Government Pleader during arguments and in written arguments, the concerned non-teaching staff are eligible and possess the qualification and they have been appointed by following the rule of reservation. It is also not the case of the learned Special Government Pleader that there is no sanctioned post. But, the Government and the educational authorities seeks to decline aid arbitrarily to the Private Aided Educational Institutions by issuing these Government Orders and the impugned orders. Hence, I do not agree with the submissions of the learned Special Government Pleader.
Submission (ii) :
33. In fact, submission (ii) is just a repetition to submission
(i). It is the submission of the learned Special Government Pleader that the Government has unfettered discretion to decide about the sanction of grant even when the appointments are made to the sanctioned posts. In my view, if an appointment is made to the sanctioned posts that are sanctioned by the Director under Rule 15(1), then the DEOs/DEEOs are bound to sanction grant and the DEOs/DEEOs could not ask the school to seek permission from the Government before appointing a non-teaching staff in the sanctioned post, whenever vacancies arise in the sanctioned posts due to death/retirement/resignation, etc.,. Hence, this submission has no merit and whatever reasons given for rejecting submission (i) of the learned Special Government Pleader would equally apply to reject submission (ii) also.
Submission (iii) :
34.1. It was contended that the aid is not an automatic and the right to seek aid is not a Fundamental Right. This submission, in my view, is misconceived. This contention is available to the Government, whenever a Private School, which is not in receipt of aid, makes the demand to give them aid. All the Private Aided Schools concerned in these writ petitions are in receipt of aid for so many decades for teaching and non-teaching sanctioned posts. Therefore, the State cannot withhold the same in arbitrary fashion, contrary to the Act and the Rules.
34.2. The contention of the learned Special Government Pleader that right to receive aid is not a Fundamental Right has no merit, as far as these schools are concerned. The claim is made by the schools based on the right that flows from the Statute and the Rules. That is, the Act and the Rules. Therefore, the State cannot deny the statutory right of aid, which has been given to these Schools for so many decades.
34.3. The learned Special Government Pleader has placed heavy reliance on the judgment of this Court in Maria Grace Rural Middle School V. The Government of Tamil Nadu rep. by its Secretary, Education, Science and Technology Department, reported in 2006 (5) CTC 193 and T.M.A.Pai Foundation V. State of Karnataka, (2002) 8 SCC 481 in support of his contentions.
34.4. I am of the view that the judgment in 2006 (5) CTC 193 has no application to the facts of these cases. In that case, the newly established schools after 1991-1992 sought aid. The same was declined by the educational authorities, placing reliance on Section 14-A of the Act. Section 14-A of the Act was questioned by the Schools by filing a batch of writ petitions. The learned Single Judge rejected those writ petitions. The Division Bench also confirmed the same holding that it was a policy decision of the State not to grant aid to the newly established schools after 1991- 1992. It is useful to extract paragraph 33 of the said judgment in 2006 (5) CTC 193 in this regard:
?33. It is not in dispute that no Government School or Aided School has denied the right of imparting free education to the children. In fact, there is no allegation to the effect that the Government is refusing to admit or provide education to the children below 14 years. As rightly observed by the learned single Judge, it is the writ petitioners, who voluntarily started new schools in the area, which, according to them, are backward and since they wanted to provide free education without seeking the aid, the Government considered their request and granted recognition.?
34.5. It is also useful to extract the following passage in paragraph 48 of the said judgment :
?48. .... There is no allegation or dispute as to the fact that the Government is providing free education to the children below 14 years. The particulars furnished show that no Government School or Aided School is denied the right of imparting free education to the children. ....?
34.6. Therefore, this judgment could not render any assistance to the State to sustain the impugned orders issued by the DEOs/DEEOs, impugned Government Orders and the impugned Government Letter.
34.7. Further, one shall also take note of the fact that when Section 14-A was introduced in the Act, Article 21-A was not inserted in the Constitution.
34.8. The judgment of the Apex Court in T.M.A.Pai Foundation V. State of Karnataka, (2002) 8 SCC 481, relied on by the learned Special Government Pleader, has no application to these cases, particularly, since that case relates to the higher education and we are concerned in these cases only with school education.
Submission (iv) :
35.1. Placing reliance on Rule 15 (1), the learned Special Government Pleader submitted that depending on the economic conditions of the State, the State could decline to grant aid even to the sanctioned posts. It is useful to extract Rule 15 (1) of the Rules as hereunder :
?15. Qualifications, conditions of service of Teachers and other persons - (1) The number of Teachers and other persons employed in a private school shall no exceed the number of posts sanctioned by Director of School Education, from time to time, with reference to the academic requirements Teacher-pupil ratio and overall financial considerations.?
35.2. The learned Special Government Pleader placed heavy reliance on ?financial considerations? appears in Rule 15(1).
35.3. In my view, Rule 15(1) of the Rules was there even before insertion of Section 14-A in the Act. After introduction of Section 14-A in the Act, the State cannot plead financial considerations to deny aid to the schools that are already receiving aid prior to 1991-1992. Therefore, the schools that are established in the past 25 years afresh are not granted aid and they are not before this Court claiming aid. These schools are getting aid for so many years and the financial consideration cannot be cited as a reason to deny aid, at this juncture.
35.4. The issue was already considered in paragraph 31 of this judgment and the judgment of the Apex Court in State of H.P. V. H.P. State Recognized and Aided Schools Managing Committee, reported in 1995 (4) SCC 507 and Chandigarh Administration V. Rajni Vali, reported in 2000 (2) SCC 42 could be usefully referred in this regard, that were extracted hereinabove in the said paragraph.
35.5. Furthermore, in my considered view, I have already held that after insertion of Article 21-A in Part III relating to Fundamental Rights in the Constitution, the State shall not deny aid at the school level and that too for the schools, that are already in receipt of the aid. The Middle Schools that imparts education upto the 8th Standard is fully covered under Article 21-A of the Constitution. As far as High Schools and Higher Secondary Schools are concerned, I have already held that the classes beyond the 9th Standard could not be considered as a separate institution and the classes 1 to 9 and other classes are inseparable. Therefore, in my view, the aid at the school level is guaranteed by the Constitution. However, it does not come in the way of the Private Schools to commence on Self-Financing basis. Therefore, this submission of the learned Special Government Pleader has no basis.
Submission (v) :
36.1. The learned Special Government Pleader, placing reliance on Rule 15(4), and more particularly a passage in Rule 15(4)(ii)(iii), submitted that before making appointment to non-teaching posts, the Private Aided Schools shall seek permission for making those appointments. According to him, Rule 15(4) of the Rules applies to both teaching and non-teaching posts. I am not in agreement with this submission of the learned Special Government Pleader. In my view, Rule 15(4)(i) is general and the same is applicable to both teaching and non-teaching posts. However, Rule 15(4)(ii) would not apply to non-teaching posts. Rule 15(4)(ii) applies only to teaching posts. The passage in Rule 15(4)(ii)(iii) relied on by the learned Special Government Pleader is extracted hereunder :
?15. (4)(ii)(iii) ..... In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain prior permission of the District Educational Officer in respect of Pre-Primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of Corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this Rules.?
36.2. To appreciate the submission of the learned Special Government Pleader, it is better to extract Rule 15(4)(i) and 15(4)(ii) as hereunder :
?15. Qualifications, conditions of service of Teachers and other persons ?
(4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of Teachers shall be made by the following methods :-
(i) Promotion from among the qualified Teachers in that school ; or
(ii) Promotion from among the qualified Vocational Instructors in that School ;
(iii) If no qualified and suitable candidate is available by method (i) above -
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of Teachers ;
(b) Appointment of teachers from any other school ;
(c) Direct recruitment.
.....?
36.3. The appointment referred to in the passage relied on by the learned Special Government Pleader is related to teaching posts. This could be seen if one looks into Rule 15(4)(ii), wherein, the aforesaid portion appears. The entire Rule 15(4)(ii) makes it very clear that the same relates to appointment of teachers. Rule 15(4)(ii)(i) mandates that appointment to various categories of teachers shall be made by promotion from among the qualified teachers in that school. Rule 15(4)(ii)(ii) is relating to promotion of vocational instructors. Rule 15(4)(ii)(iii) states that if no qualified teacher is available in that school for promotion, then the school could adopt the three methods mentioned in Rule 15(4)(ii)(iii)(a)(b) and (c). In the event of resorting to Rule 15(4)(ii)(iii)(b) and (c), the school shall get prior permission from the educational authorities to fill the teaching posts. That is, the purpose of Rule 15(4)(ii) is to safeguard the interest of the serving teachers in a school with regard to promotion. Hence, Rule 15(4)(ii)(i) mandates that Private Aided Schools shall first promote the qualified teachers within the School to higher posts. If no qualified and suitable candidate is available in the school, then the school could appoint other persons employed in that school with the requisite qualification or by appointing teachers from any other school or by resorting to direct recruitment. If they resort to appointment from any other schools or by direct recruitment of teachers, the School Committee shall obtain prior permission as per the Rules. That is, prior permission is necessary only if the Private Aided Schools resort to appoint persons from outside their Schools or through direct recruitment for the post of teachers against the promotional posts.
36.4. Even such prior permission for filling up the promotional post in the teaching side from other schools or by direct recruitment is not necessary in the case of Minority Private Aided Schools, as held by this Court in various judgments, while interpreting Rule 15(ii)(iii).
36.5. Furthermore, a Division Bench of this Court in the judgment dated 30.04.2008 in W.A.No.900 of 2007 (R.Kuttiswamy V. Joint Director of School Education (Secondary Education), Chennai-6 and others) has categorically held that Rule 15(4) is only applicable to teachers. The said judgment relates to appointment of Junior Assistant. It is useful to extract the following passage in paragraph 3 of the judgment :
?3. It is seen from the rule 15(4) which deals with the appointment of teachers only, nothing is stated in the entire rule about the appointment of the non-teaching staff. The learned Additional Government Pleader has not placed any clarification issued by the Government extending the abovesaid provision of law to the appointment of any other posts in the private schools. Therefore, when the rule is confined to the appointment of teachers in the private schools, the Junior Assistant is a non-teaching post which is not covered by Rule 15(4).?
36.5. It is also useful to extract paragraph 5 of the said judgment, wherein, the Division Bench approved the similar view of the learned Single Judge in A.Murugesan V. State of Tamil Nadu, [2007 (4) MLJ 561].
?5. The decision of the learned single Judge of this Court rendered in A.Murugesan V. State of Tamil Nadu (2007 (4) SCC 561) holding that rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 will apply only to teaching staff and with regard to the appointment of non-teaching staff, there is no need to get prior permission from the educational authorities is also brought to our notice.?
Therefore, I am of the view that this submission has no basis.
Submission (vi) :
37.1. The ban on recruitment imposed by the Government in G.O.Ms.No.212 and subsequent lifting of ban in G.O.Ms.No.14 and various judgments of this Court approving the appointments made during the ban period were considered by me and I held that consideration of those matters are of no use and the approval of appointment made during that period by this Court attained finality and it is only an academic exercise to discuss about the same.
37.2. Therefore, the submission made by the learned Special Government Pleader both orally and in written submissions that various judgment of this Court on this point were not correctly decided has also no merit and I need not go into the issue at this stage, as the present issue relates to the validity of G.O.Ms.No.115 and G.O.Ms.No.203 and the Government Letter dated 09.07.2012.
38. In the result, for the details reasons mentioned above,
(i) All these writ petitions are allowed.
(ii) Impugned G.Os., namely, G.O.Ms.No.115, School Education Department, dated 30.05.2007 and G.O.Ms.No.203, School Education Department, dated 23.07.2010 and Government Letter No.8884/D1/2011-2, dated 09.07.2012, are quashed.
(iii) The impugned orders of the DEOs/DEEOs refusing to approve of the appointments of various non-teaching posts in these writ petitions are set aside and the official respondents are directed to approve of those appointments of the non-teaching staff in the Private Aided Schools concerned in these writ petitions and to sanction grant.
(iv) Wherever writ of Mandamus is sought for, a direction is issued to the respondents to approve of the appointments of the non-teaching staff in the Private Aided Schools and to sanction grant.
(v) The official respondents are directed to comply with the aforesaid directions within a period of six weeks from the date of receipt of a copy of this order.
However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
To
1. The Secretary to Government, School Education Department, State of Tamil Nadu, Secretariat, Fort St. George, Chennai ? 9.
2. The Director of School Education, College Road, Chennai ? 6.
3. The District Educational Officer, Thoothukudi..