Madras High Court
The Secretary To Government vs Iruthaya Amali on 31 March, 2021
Bench: M.Sathyanarayanan, R.Suresh Kumar
W.A.(MD).No.76 of 2019 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 28.09.2020
Pronounced on : 31.03.2021
CORAM:
THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN
AND
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.A.(MD).Nos.76 of 2019, 1461 of 2018, 701 of 2019, 1074 of 2019,
1277 of 2019, 1473 of 2018, 1531 of 2018, 1612 of 2018, 225 of 2019,
919 of 2019, 918 of 2019, 96 of 2018, 495 of 2019, 1150 of 2018,
1354 of 2019, 1517 of 2019, 1525 of 2019, 1565 of 2019, 1566 of 2019,
6 of 2020, 15 of 2020, 741 of 2020, 743 of 2020, 745 of 2020, 773 of
2020, 783 of 2020, 784 of 2020, 785 of 2020, 762 of 2020
and
W.P.No.31575 of 2019, W.P.(MD).Nos.1152 of 2018, 3973 of 2016,
4816 of 2017, 11155 of 2017, 5767 of 2018, 7643 of 2018, 9947 of
2018, 10187 of 2018, 23869 of 2018, 24688 of 2018, 25020 of 2018,
7471 of 2019, 11117 of 2019, 16785 of 2019, 23444 of 2019,
24026 of 2019, 25272 of 2019, 1183 of 2020, 1208 of 2020, 1544 of
2020, 5098 of 2020, 5594 of 2020, 6530 of 2020, 6678 of 2020, 8275 of
2020, 8450 of 2020, 9564 of 2020, 9666 of 2020, 9709 of 2020, 9874 of
2020, 9918 of 2020, 10052 of 2020, 10063 of 2020, 10090 of 2020,
10123 of 2020, 10250 of 2020, 10257 of 2020, 10385 of 2020,
10705 of 2020, 11832 of 2020, 11851 of 2020, 21699 of 2018,
1937 of 2020, 9637 of 2020, 10238 of 2020, 11071 of 2020,
11128 of 2020, 11467 of 2020, 11862 of 2020, 11865 of 2020,
11868 of 2020, 11863 of 2020, 11886 of 2020, 12399 of 2020,
12409 of 2020, 12562 of 2020, 12663 of 2020, 12692 of 2020,
12704 of 2020, 12705 of 2020, 12713 of 2020,
12866 of 2020
and connected miscellaneous petitions
W.A.(MD).No.76 of 2019
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W.A.(MD).No.76 of 2019 etc., batch
1. The Secretary to Government
Government of Tamil Nadu
School Education Department,
Fort St. George, Chennai - 9.
2. The Director of School Education
College Road, DPI Campus,
Chennai.
3. The Assistant Elementary Educational Officer
Kovilpatti,
Thoothukudi District. .. Appellants
-Vs-
1. Iruthaya Amali
2. The Correspondent
St. Inigo Primary School,
Venkatachalapuram Village,
Ettayapuram Taluk,
Thoothukudi District. .. Respondents
Writ Appeal filed under Clause 15 of Letters Patent, to set aside
the order, dated 12.01.2018 made in W.P.(MD).No.32 of 2018.
For Sate /
Education Department : Mr.Vijay Narayan, Advocate General
and Mr.K.Chellapandian, AAG
assisted by Ms.S.Srimathy
Special Government Pleader
For Institutions and : Mr.Isaac Mohanlal, Senior Counsel
Teachers Fr. Xavier Arul Raj, Senior Counsel
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Mr.Ajmal Khan, Senior Counsel
Mr.Paneerselvam
Mr.Chellapandian
Mr.E.V.N.Siva
Mr.Louis
Mr.Arumugam
Ms.Amala
Mrs.Kamala
Mr.Rupan
COMMON JUDGMENT
A recognised Minority Primary School called St.Inigo Primary School was functioning at Venkatachalapuram Village, Ettayapuram Taluk, Thoothukudi District, where one Arokiya Mary was working in a sanctioned secondary grade post, who since was transferred on 08.06.2017. In the vacancy caused by such transfer, one T.Iruthaya Amali was appointed by the school management with effect from 09.06.2017 and when the said appointment was sent to the competent authority of the Education Department for approval, the said proposal was returned / rejected on the ground that, the teacher did not qualify with the Teacher Eligibility Test (TET) which is one of the essential qualification for appointment as secondary grade teacher and also that a certificate certifying that, there is no excess teacher working in any of the school run by the concerned 3/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Educational Agency shall be obtained and be produced.
2. Subsequently a certificate to that effect was given by the Educational Agency. Along with the same, the proposal was re-submitted and in order to consider the same and to give approval to the teacher appointed w.e.f., 09.06.2017, the teacher approached this Court by filing W.P.(MD).No.32 of 2018, which was heard by a learned Judge of this Court, who passed an order on 12.01.2018 in the said writ petition, where, a direction was given to the competent authority to grant approval to the teacher and consequently grant all monetary benefits to the said teacher within a time frame.
3. Felt aggrieved over the said order passed by the writ Court, dated 12.01.2018 made in W.P.(MD).No.32 of 2018, the Education Department preferred Intra-Court Appeal in W.A.(MD).No.76 of 2019.
4. Along with the said writ appeal, some other connected writ appeals were tagged and the batch of writ appeals came up for further hearing before a Division Bench of this Court, where an interim order was passed on 09.04.2019 with following effect :
4/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch "6. While protecting the interest of aided institutions viz., both non-minority and minority, in order to protect the interest of the State Exchequer and Public Exchequer, this Court would like to issue the following directions: (i) Since there is a likelihood of boosting the students strength of the Aided Schools for the purpose of getting more teachers, the Government is directed to implement the bio-metric attendance of the students studying in the Aided schools as well as the teachers employed in Aided Schools;
(ii) There shall not be any fresh appointment from today in Private Aided Schools, till surplus teachers in other schools coming under the same Management are exhausted;
(iii) The Government shall not approve any appointment made by the Private Aided Schools, till the surplus teachers in the schools coming under the same Management are exhausted;
(iv) Insofar as the matters in which the issues have been decided finally either by the learned Single Judge or the Division Bench, the appellants are not at liberty to reopen the issue;
(v) There is no prohibition for approval of teachers, where concerned teachers or management 5/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch obtained orders from this Court which reached finality for grant of approval;
(vi) In case, an appeal or review has been preferred as on date, it is open to the appellants to contest the cases on merits;
(vii) Wherever, there is no dispute with regard to existence of surplus teachers, it is open to the appellants to deploy those teachers, wherever, it is required viz., in other aided schools.
(viii) In cases, where the minority school is a Single School and there is no question of getting surplus teachers from other schools in the same Management, it is open to the school authorities to approach the Educational Authority well in advance, so that, the Educational Authority will be able to deploy the eligible teachers. Such deployment of eligible teachers from any other school should satisfy the eligibility criteria as prescribed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973."
5. Pursuant to the said interim order passed by the Division Bench as stated supra, the Education Department has come out with a Government Order in G.O.Ms.No.165, School Education Department, dated 17.09.2019, where, among other things, in response to or in pursuance of the said 6/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch directions issued by the Division Bench of this Court, by order, dated 09.04.2019 as stated supra, the Government has taken a stand that every Educational Agency will be considered as a unit, irrespective of the number of schools which they run and they should follow G.O.Ms.Nos.525 and 231, School Education Department, dated 29.12.1997 and 11.08.2010 respectively, also, so many other conditions were imposed.
6. The pertinent condition among them, which were imposed by the State, in the said G.O.Ms.No.165 is that, from 09.04.2019, i.e., the date on which interim order was passed by the Division Bench, the schools run by the corporate management and other management shall not make any fresh appointment of teaching faculty in the vacancy caused due to any reason, unless and until the deployment of excess teachers are exhausted. In other words, unless the entire excess teachers of the same corporate management or otherwise are exhausted, no fresh appointment even in the sanctioned vacancy shall be made by any school which are managed by the Corporate Management. The relevant portion of the G.O.Ms.No.165 is extracted hereunder for ready reference :
"5/ nkw;fz;l R{H;epiyapy;. muR epjpa[jtp 7/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch bgWk; gs;spfspy; gapYk; khzth;fspd; eyd;
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Vw;gl;L tUk; epjpapHg;gpid jtph;j;jpLk;
bghUl;Lk;. brd;id cah;ePjpkd;w kJiu
fpis tHf;F W.A.(MD)Nos. 76, 225, 341 of
2019, 1612, 1076, 1093, 1461, 1473 and 1531 of 2018-y; 09.04.2019k; ehspl;l ePjpkd;w jPh;g;gpd;
mog;gilapy;. muR epjpa[jtp bgWk;
rpWghd;ik / rpWghd;ikaw;w bjhlf;f /
eLepiy / cah;epiy / nky;epiyg;
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gzpeputy; bra;tJ Fwpj;J fPH;f;fz;l
bewpKiwfis gpd;gw;wp chpa eltof;if
vLf;f bjhlf;ff;fy;tp ,af;Feh; kw;Wk;
gs;spf;fy;tp ,af;Feh; MfpnahUf;F
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xU myfhft[k;. xd;Wf;Fk; nkw;gl;l
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(ii) murhiz (epiy) vz;/525.
gs;spf;fy;tpj;Jiw. ehs; 29/12/1997 kw;Wk;
murhiz (epiy) vz;/231.
gs;spf;fy;tpj;Jiw. ehs; 11/08/2010d; go
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xt;bthU gs;spf;Fk; murhy; mDkjpf;fg;gl;l Mrphpah; gzpzpl';fis gzpahsh; eph;zak;
bra;ag;gLk;nghJ. xt;bthU Mz;Lk; 01/08
njjpa epytug;go mg;gs;spapy; gapYk;;
khzhf;fh;fspd; vz;zpf;iff;nfw;g Mrphpah;
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filgpof;fyhk;/
...
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(xiv) brd;id cah;ePjpkd;w kJiu fpis
tHf;F W.A.(MD)Nos. 76, 225, 341 of 2019,
1612, 1076, 1093, 1461, 1473 and 1531 of 2018-d; jPh;g;ghiz btspaplg;gl;l ehshd 09/04/2019 Kjy; Tl;L nkyhz;ik / ,ju nkyhz;ikfspd; fPH; bray;gLk; gs;spfspy; cs;s cghp Mrphpah;fis khw;Wg;gzp K:ykhf gzpakh;j;Jk; gzp epiwt[ bgWk; tiu.
mj;jdpahh; gs;spfspy; ve;j xU gzpaplj;jpYk; gzpepakdk; g[jpjhfr; bra;jy;
TlhJ/ ve;j xU g[jpa Mrphpah;
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7. However, within few days from the date of issuance of the 9/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch G.O.Ms.No.165, the said batch of cases in W.A.(MD).No.76 of 2019 came up for further hearing before another Division Bench on 20.09.2019, where the following interim orders have been passed :
"5.As observed by us earlier, the scope of the Writ Appeal could not be extended to that of a Public Interest Litigation. However, this is our prima-facie view. Therefore, we are inclined to deal with each of the appeals separately. Accordingly, the operation of G.O.(Ms.) No.165 School Education Department dated 17.09.2019 shall stand suspended until further orders.
6.It is submitted by the learned Additional Advocate General that G.O.(Ms.) No.165 School Education Department dated 17.09.2019 is not impugned in any of these appeals and therefore, the Government Order should not be suspended.
7.We do not accept the said submission for the reason that the said G.O. is a fallout of the interim direction issued in these batch of Writ Appeals, which are now pending before this Court. We have recorded only our prima-facie view that those directions were issued beyond the scope of the 10/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Writ Appeals. We once again reiterate that this is our prima-facie observation. Therefore, we are fully suspending operation of G.O.(Ms.) No.165 School Education Department dated 17.09.2019 until further orders."
8. Those cases again came up for hearing before the very same Division Bench on 17.10.2019, where, also the following interim order was passed :
"This is a second day we are hearing the batch of cases. In terms of the suggestion made by this Court yesterday ie., 16.10.2019, learned Additional Advocate General has produced a list of Teachers whom according to the Department are in surplus in the respective schools mentioned therein forming part of the management, particularly of the years 2015-2016, 2016-2017 and 2017-2018.
2.We are conscious of the scope of the litigation and the grounds canvassed before us by the Government as well as one of the litigant who has lost before the learned Single Bench. In other words, the other writ petitioners were successful before the learned Single Bench and the State is on appeal before us. Before we go into the 11/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch controversy as to whether the staff fixation was in accordance with law, whether due regard has been given to the decision of the Hon'ble Division Bench, we are of the view that some reprieve to be granted to the Teachers because they have been working without salary for a quite long number of years. We are also conscious that seven of the individual teachers are being successful before the learned Single Judge. Nevertheless, we want the management as well as the teachers to agree to an amicable situation pending disposal of these batch of appeals.
3.Therefore, we direct the management to examine the list and without prejudice to the rights of the management and Teachers submit before us as to how the redeployment can be made ie., teacher as well as the post to any other needy school within the same management. When the particulars is placed before us, we will examine as to whether any workable solution can be arrived at. If nothing turns good, we will have to fix a date for hearing the main issue."
9. When the matter stood thus, unmindful of the subsequent orders 12/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch passed by the Division Bench on 20.09.2019 as well as 17.10.2019, the Education Department, pursuant to the earlier interim order, dated 09.04.2019 as well as the G.O.Ms.No.165, dated 17.09.2019, seems to have either returned or rejected the proposals sent by various private aided schools, both minority and non-minority for approval of the teaching faculty on the ground that, no such appointment could be made till the entire excess staff identified or to be identified are exhausted by redeployment of such excess staff and therefore, on that ground, many such appointments made subsequently or even prior to that since had been returned or rejected by the Education Department, challenging those orders, writ petitions were filed either by the Institution concerned or the teacher concerned.
10. In this context, it is to be noted that, in some of the cases, writ court has taken a view that, such kind of embargo cannot be put against the Institution, especially minority institution and therefore, on that score, no approval of appointment of teaching staff can be withheld or returned / rejected. Therefore suitable directions were issued by way of mandamus to the Education Department to approve those appointments from the date of appointment. In respect of some of such orders passed by the writ court, 13/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch again writ appeals were filed by the Department and those writ appeals also were tagged along with W.A.(MD).No.76 of 2019.
11. Also in some of the writ petitions, the writ court has taken the view that, in view of the issue pending in W.A.(MD).No.76 of 2019 etc., batch, in order to have a comprehensive decision in all these matters, which pertain to one core issue of identification of excess staff and redeployment of the same, those writ petitions, seeking such mandamus for approval, were also to be tagged along with batch of writ appeals in W.A.(MD).No.76 of 2019 etc., batch.
12. In order to hear all the writ appeals as well as connected writ petitions and to give a comprehensive decision on the issue raised therein, this Bench was constituted, accordingly, this batch of cases came up before us for hearing on 05.08.2020.
13. On the first day of hearing, preliminary submissions were made by the learned Senior counsel and counsel appearing for the Institutions as well as the learned Additional Advocate General and the Special Government 14/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Pleader appearing for the Education Department.
14. After hearing them, we found that, three core issues had arisen for consideration before us, apart from some peripheral issues also. In order to proceed further, to answer those issues, we wanted to have a response from the State / Education Department and therefore on 05.08.2020, we passed the following orders :
"3.The learned Senior Counsel and Counsel appearing for the private parties, who are either petitioners in the Writ Petitions or respondents in the Writ Appeals filed by the Government, made submissions stating that, there are three major issues, which are to be dealt with and decided by this Bench. According to them, the following are core issues:
(i) Whether the private educational institution, especially school, in this batch of cases or the educational agency of such school is a Unit to be recognised for the purpose of fixing staff strength, vis-a-vis, redeployment of excess staff.
(ii) Whether any compendium of schedule can be fixed by the Government, fixing the time schedule for the following actions, namely, 15/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
(a) Last date for admission of students in an academic year;
(b) Based on the strength of the students of the institution, last date for identification of the required teaching faculty.
(c) Depending upon the pupil - teacher ratio, last date for identification of excess teachers, if any, or for appointment of new teacher, in case, sanctioned vacancy is not filled up by then.
(d) The date before which necessary deployment of excess teachers is to take place.
(iii) Also, whether redeployment of excess teacher identified so, shall be made suo motu by the educational authorities concerned at Revenue District/Educational District/Taluk wise or by the school concerned.
4.Apart from those core issues as projected by counsel on either side, some more issues which may be ancillary to the core issues.
They are
(i) The identification of the authority, by whom, such redeployment process is to be undertaken, whether that has been identified by way of any Government Order/Government 16/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Letter/Instructions by the Government or Head of the Department and if not, whether it can be fixed or identified or authorised by the Government Orders or instructions, if so, before which date, such law/Regulations would be issued by the Government/competent authority.
(ii) Whether the Government has taken any policy decision to have a complete and comprehensive Legislation (Code) to deal with the private schools (Minority and Non-Minority) (Aided or un-aided) by which not only the academic and administrative matters, but also service issues/disputes can also be effectively administered and redressed.
5.Since it is a fact that, so far, except the Tamil Nadu Private School Regulations Act, 1973 and the Rules made thereunder, no other Legislation is available to deal with the aforesaid issues, all these issues hitherto are dealt with and administered only by Government Orders and Administrative Instructions being issued from time to time.
Sometimes, such Government orders and Administrative Instructions are being issued on case to case basis or on need basis. Instead of having such kind of Government 17/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Orders/instructions regime, why the Government should not think of having a comprehensive Legislation to administer these issues pertaining to private schools and if so, what is the proposal to have such Legislation and the time limit within which such Legislation can be brought in, can also be spelt out by the Government.
6.Also, still some more peripheral and ancillary issues arise in this batch of cases. In this regard, the respective learned Senior Counsel and the learned counsel appearing for the parties as well as the learned Additional Advocate General and the learned Special Government Pleader appearing for the State, stated before this Court that, they would prepare draft issues concerning the core issues as well as peripheral and ancillary issues and after exchanging the same between the parties and the Government through their respective counsel, the same would be filed before this Court enabling this Court to frame those issues comprehensively for appropriate decision by this Bench.
7. Yet another core issue during the arguments has arisen is that, the language policy, which has also been recently touched by the State 18/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Government, as that is evident from the statement given by the Hon'ble Chief Minister of Tamil Nadu that the Government of Tamil Nadu will adopt only two language formula in the backdrop of the New Education Policy, 2020, recently announced by the Central Government.
8. In this context, if it is the stand of the State to have two language formula, this Court wants a definite commitment to that effect from the Government as to whether these two languages are Tamil and any other language or Tamil and English alone. If it is Tamil and English alone being the languages to be taught in the schools in Tamil Nadu and also the medium of instruction to be adopted in the State is also by either Tamil or English, whether the State Government has got any reservation to release the grant-in aid to the aided schools who swift over their medium of instruction from Tamil to English or both Tamil and English having the ratio of 50:50 or in other ratio. In this regard, especially, in the context of the language policy, as has been declared by the Hon'ble Chief Minister recently, a definite stand reflecting the policy of the Government should be informed to this Court by way of a sworn affidavit 19/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch to be filed either by the Chief Secretary, Government of Tamil Nadu, Secretariat, Chennai - 9 or the Secretary to Government, School Education Department, Government of Tamil Nadu, Chennai -9.
9.In order to comply with the aforesaid directions, i.e., filing of draft issues after exchanging the same between the counsel and filing of affidavit to spell out the stand of the Government on language policy, the learned counsel for parties and the learned Additional Advocate General seek two weeks time."
15. In response to the said queries raised by us in our order, dated 05.08.2020, the learned Advocate General appearing on behalf of the State / Education Department, on 20.08.2020, after hearing the further submissions made on behalf of the Institutions, had submitted that, the intensity of the issue raised in this batch of cases have now been understood, therefore, in order to give a complete resolvement to these issues, he will consult with the State Government and Department officials and would revert back with written response, accordingly, further time was given. Thereafter on behalf of the State, affidavit has been filed and written arguments also had been 20/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch filed, apart from oral submissions at length made by the learned AG appearing for the State / Education Department.
16. Also on the side of the Educational Institutions / Teachers, written submissions were filed besides lengthy oral submissions made by the learned Senior counsel and counsel appearing for various Institution / Teachers.
17. We have heard the learned counsel appearing for the parties at length and have perused the materials placed before this Court including the affidavit, counter affidavit, written arguments, counter written arguments and various decisions made by the Hon'ble Apex Court as well as this Court related to the issue raised in this batch of cases. This is how this batch of cases having been heard by us are being disposed of by this common order.
18. HISTORICAL BACKGROUND :
18.1. That the private Educational Institutions (Schools) in this State had a long history as some of the Institutions were established century ago and most of the Institutions had been established several decades back.21/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Insofar as these institutions established and run by both Minority and Non- minority managements, they had been governed by Madras Educational Rules, subsequently, renamed as Tamil Nadu Educational Rules. This Madras Educational Rules, in short, “MER” had been introduced from January 1892 at the erstwhile Madras Presidency under the British Rule. Three Rules of MER are relevant to the issue raised in these cases. They are Rule 17, Rule 18 and Rule 65, which reads thus :
“17.There should be a teacher for every Standard and for every section of a Standard in addition to the Headmaster (exclusive of Pandits, Munshis, Writing Masters, Drawing Masters, Physical Training Instructors and Sewing Mistress):
[Provided that the work allotted to each such class teacher does not fall considerably short of a minimum of 17 hours of work per week. The District Educational Officers and the Inspectresses of Girls Schools shall relax this rule and condone- the deficiency in the minimum hours of work per week, viz., 17 hours prescribed for class teacher, after examining the merits of each case. It will also be open to the Director to permit a reduction in the number of class teachers on an examination of 22/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch each case on its own merits, when the hours of work per class teacher fall short of the prescribed minimum by more than two hours.] In schools containing no class above the Eighth Standard, however, the Headmaster shall be treated for the purposes of this rule as one of the Class Masters, but if the strength of the school justifies it, the management may employ a clerk or one extra teacher who shall be of the secondary Grade in consultation with the District Educational Officer.
18. No additional pupil shall, without the sanction of the District Educational Officer, be admitted to a class when there are already 40 pupils upon the rolls in the class unless the class is thereupon divided into sections. No section of a class should have more than 40 pupils upon the rolls.
The powers regarding sanction of excess admissions in secondary schools have been delegated to the District Educational Officer in the case of Boys' High Schools and Inspectresses of Girls' Schools in the case of girls' schools.
65.The proportion of teachers to pupils and the strength of the various classes shall be fixed from 23/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch time to time, by the Director provided they have not been laid down in any special rules sanctioned by Government for such institutions.” 18.2. These are all the Rules which govern the staff fixation to be made for an aided school based on the pupil strength.
18.3. This position was continued for more than a century, i.e., up to 1997. In the meanwhile, by issuance of two Government Orders, namely G.O.Ms.No.250, Education Department, dated 29.02.1964 and G.O.Ms.No.573, Education Department, dated 20.03.1978, the fixation of staff strength in elementary level and higher secondary school level were decided respectively.
18.4. Insofar as high schools are concerned, Rule 17 and 18 of the MER was permitted to continue.
18.5. In order to have a comprehensive rule for the purpose of fixation of staff strength, the Government came forward to issue a 24/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Government Order in G.O.Ms.No.525, School Education (D1) Department, dated 29.12.1997.
18.6. In the said Government Order, first time, comprehensively the Government has given norms for fixing the staff strength of various schools like Elementary school (standard 1 to 5), Middle school (standard 6 to 8), High School (standard 9 to 10), Higher Secondary School (standard 11 to 12). The said Government Order came into effect from 01.06.1998. However, the said GO was put under challenge by the School Managements before this Court in a batch of writ petitions, in the matter of North Arcot Ambedkhar and Sambuvarayar District recognised Private aided Primary and Middle Schools Managers and Teacher Managers Association, Vellore v. The State of Tamil Nadu rep., by its Commissioner and Secretary to Government Education Department, Chennai and others, reported in (1999) 1 MLJ 635, where, the validity of the G.O.Ms.No.525 was upheld.
18.7. As against which, appeal was filed in W.A.No.1768 of 1998, where a Division Bench of this Court, by order, dated 09.11.2000, 25/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch confirmed the said decision of the writ court, thereby the validity of G.O.No.525 had been upheld and confirmed by the Division Bench.
18.8. However, subsequently for certain clarifications, the issue came up before another Division Bench in the matter of The Correspondent, Sacred Heart Primary School v. The District Elementary Educational Officer, Kanyakumari, reported in 2006 (4) CTC 34, where, after analysing the issue, the Division Bench has held that, the Government Order, i.e., G.O.Ms.No.525 cannot be interpreted to do away the requirement of having atleast one teacher for each standard or section (wherever creation of additional section is justified) and ultimately the Division Bench has held as follows :
"14. Having heard the learned counsel for the petitioner as well as the learned Government Pleader we find force in the submissions made by the learned counsel for the petitioner. When we test the argument put forth on behalf of the petitioner, we find that if the stand of the respondents is to be accepted, in a school where standard I to V exist and the total student strength remain at 143, sanction of two teachers for first 80, 26/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch one other teacher for the strength of 100 and another teacher for the next 40 namely 140 would result in the total sanction of only four teachers, eventhough, the existence of 5 standards namely standards I to V would mandatorily require the sanction of a fifth teacher to handle all the five standards in the school. Such a position would be highly incongruous and if the prescription of ratio provided under G.O.Ms.No.525 dated 29.12.1997 is to be construed and implemented in the said manner that would work against the interest of the pupil and the school and the very object of promotion of education will be defeated.
15. In other words, if there are five standards namely standards I to V in an elementary school with the economic strength of not less than 20 in each standard, and each standard reaching 40 or 80 or 100 or 140 or 180 as the case may be, the fixation of the teacher pupil ratio as prescribed in the said Government Order will have to be made that would provide necessary teaching faculty to man each standard/class. To put it differently or to sight an analogy if in an elementary school there exists standard I to V and in each standard the students strength is not less than 60, the bifurcation 27/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch of standards as prescribed under clause I(c) will have to be made and the required teacher-pupil ratio at the rate of 1:40 with a minimum of two secondary grade teachers upto a strength of 80 for each standard will have to be maintained. If the ratio as prescribed in the G.O.Ms.No.525 dated 29.12.1997 is not applied in the above said manner, that would result in total lack of required number of teachers to man the minimum number of pupils in each standard, which would ultimately result in great fall in the standard of education and such a position can never be acknowledged or accepted as claimed by the respondents. ...
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18. In other words, a plain reading of the language of clause I(a to c) would only result in an interpretation as has been placed by us in paras 14 and 15 and we are convinced that the manner in which it was sought to be interpreted by the first respondent while passing the order impugned in these writ petitions would result in an unworkable or to put it bluntly chaotic situation in the Educational Institutions which cannot be permitted 28/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch to be made. We therefore hold that the norms applied by the respondents under the impugned order passed on the total strength of the pupils in the school without particular reference to the student strength in each of the standard I to V would defeat and frustrate the very purpose of the fixation of the ratio and the corresponding number of posts to be ascertained and consequently, the impugned orders are liable to be set aside."
18.9. In view of the said decisions made in two different perspectives by the Division Benches, one is in W.A.No.1768 of 1998, dated 09.11.2000 and another is 2006 (4) CTC 34, the issue was referred to a Full Bench for an authoritative pronouncement on the issue of fixation of staff strength, wherein, whether the whole school shall be taken for the purpose of fixing the pupil teacher ratio or every standard shall be taken was expected to be gone into.
18.10. The Full Bench, in the matter of Director of Elementary Education, Chennai and others v. S.Vigila in W.A.(MD).No.313 of 2006, 29/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch reported in 2006 (5) CTC 385 has analysed the issue in threadbare and has come to the following conclusion :
"23. Keeping in view the various relevant aspects, we feel that G.O. Ms. No. 525, dated 29.12.1997 should be interpreted in the following manner:
(1) The ratio of students-teacher strength as indicated in the G.O. should be primarily considered by taking each individual standard/section as a unit.
(2) The minimum strength of teachers required obviously should not fall below the number of Standards/Section in a school. In other words, if there are five standards, obviously the minimum number of teachers should be five, out of which one would be the Headmaster.
(3) If the students' strength in a particular Standard exceeds 60, at that stage, an additional section is required to be created requiring the sanction of a second teacher and the strength reaches 100, the post of a third teacher is required.30/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch (4) Even after maintaining the aforesaid ratio by taking into account the students' strength of each individual standard and additional section, as the case may be, by keeping in view the teacher- students ratio 1:40 of the entire school if the teachers strength is required to be increased, the same has to be allowed, but in no case, the teachers' strength should be less than the number of standards including the additional sections. If more teachers are thus sanctioned keeping in view the over all strength of the school, the authorities of the school should create additional section in respect of any particular Standard according to the need and convenience keeping in view the standard of education. This requirement is not only in respect of Aided Schools or Government Schools, but also in respect of any Private Recognised School. In other words, this ratio is to be maintained for any school which requires recognition.
(5) It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the Constitution."
31/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 18.11. From the said authoritative pronouncement of the Full Bench cited supra, it has become final that, while fixing the staff strength of an aided school both minority and non-minority, each standard shall be taken as a unit for the purpose of fixing the staff strength and based on which, the staff strength as provided under G.O.Ms.No.525 shall be given effect to and accordingly, the total staff strength shall be fixed.
18.12. Based on the said pronouncement of the Full Bench of this Court, the said procedure has been adopted for long years, where, every standard of an Elementary school or a primary school is taken into account, and the teacher-pupil ratio was fixed as 1:40 and accordingly, if a primary school is having five standards, five teachers including the Headmaster was the minimal requirement and that was directed to be sanctioned which was also accepted and acted upon by the Government.
18.13. However, subsequently, the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) came into effect, where the norms for fixing the teacher-pupil ratio have been fixed and pursuant to which, Government issued Government Orders and based on which, the 32/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch teacher-pupil ratio has still been further reduced to 1:35 or 1:30 and accordingly, based on such norms, staff fixation is being made.
19. In this context, it is now the stand of the State Government that, though G.O.Ms.No.525 was issued and an interpretative Judgment has been given by the Full Bench in Vigila's case (cited supra), in view of the enactment of RTE Act, 2009 and since the same has been implemented, the effect of the Full Bench Judgment in Vigila's case become nullified.
20. It is the further stand of the Government that, the Government issued G.O.Ms.No.231, School Education (C2) Department, dated 11.08.2010, where the teacher-pupil ratio has been fixed as 1:30. In this context, it is the stand of the State Government that, since the Full Bench Judgment in Vigila's case gave interpretation to G.O.Ms.No.525 in the year 2006, the RTE Act came into effect in the year 2009, therefore, what are all the G.Os issued and Rules issued by the Government subsequent to issuance of RTE Act alone shall prevail. Therefore the effect of the Full Bench Judgment is nullified by the subsequent enactment of RTE Act and the consequential G.O.Ms.No.231. Therefore the student-pupil ratio as has been 33/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch fixed either under G.O.Ms.No.525 or as has been interpreted by the Full Bench in Vigila's case cannot be considered to be a valid legal prescription in view of the RTE Act and the subsequent Government Orders in this regard.
21. Apart from the aforesaid stand taken by the Government, it has also taken the stand that, it is the right and duty of the Educational authorities to identify the excess staff in aided school and the same can be redeployed by the school or management concerned and in this context, very particularly in the schools run by Corporate Management in respect of filling up of a vacancy in a particular school, before doing the same, the Corporate Management shall look into the fact that, whether excess staff working in any of the school under the same management are available and if such excess staff are available and identified, after getting a prior permission from the State Government, those excess staff shall be appointed in the needy school of the same management by way of redeployment and unless and until such exercise is fully exhausted by the same Management or Corporate Management, no fresh appointment from open market shall be permitted.
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22. It is the further stand of the Government that, therefore only in that context, wherever such fresh appointments are made or attempted to be made by schools or their managements, especially under the Corporate Management, without exhausting the redeployment of excess teachers identified, such kind of appointment and attempt made to make such an appointment had not been approved by the State or the Education Department. Therefore, against such move on the part of the Education Department, no valid legal ground can be raised by the Institutions and therefore the challenge made in this regard by various Institutions in this batch of cases and also the plea raised by them to seek for mandamus to the Educational authorities to approve such appointments made by the schools or its management without exhausting the excess staff by way of redeployment, cannot be countenanced. Therefore all these writ petitions, which were filed and some of the them ended in Intra-Court Appeal, shall be rejected and the appeals in this regard filed by the State and the Education Department shall be allowed, they contended. 35/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
23. Apart from the identification of the teaching staff, after such identification, whether the redeployment process has to be undertaken either by the School management itself or by the Educational authorities and even for identifying the excess teaching staff, whether the school shall be taken as a unit or the entire management, that means all schools run by the same management, shall be taken as one unit, is also an issue to be delve into.
24. That apart, other peripheral issues also had arisen for consideration, which includes the Right of the Institutions, especially the Minority Institutions to appoint teaching staff on their choice and in this regard such an insistment being made by the State to appoint teacher by way of redeployment whether would amount to infringement or violation of the Rights guaranteed on the Minorities under the provisions of the Constitution.
25. Also yet another issue which came up for consideration is that, in view of the two language formula, as the policy of the Government having been announced and being maintained all along, in the English medium sections opened in private aided schools as that of the Government schools, 36/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch who were permitted to do so from the year 1990-1991, whether the teachers required for teaching or pressed into service for taking classes for English medium students shall also be sanctioned by the State Government or not and in this regard, the stand taken by the State Government that, only 50% of the existing staff strength shall be utilised for the purpose of starting or establishing English medium classes and for the said purpose, no fresh staff can be required to be sanctioned, is correct or not, was also one of the issue.
26. Also that, in view of Section 14A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (herein after referred to as “the Act”), whether the schools would be entitled to get additional sanction of staff strength for extension of sections, apart from the sanctioned sections in a particular standard and if such extension of sections are allowed, whether the institutions which are already getting the aid for the teaching staff working in the allowed sections would also be entitled to get further staff sanctioning with aid for the extension of sections.
27. In order to resolve all these issues raised in this batch of cases, lengthy arguments were advanced by the learned Senior counsel and 37/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch counsel appearing for the Institutions and Teachers and the learned Advocate General assisted by the learned Additional Advocate General and Special Government Pleader appearing for the State / Education Department.
28. We have heard those arguments at length and let us consider first, whether the core issues raised in this batch of cases, as framed by raising the questions by order dated 05.08.2020, have already been resolved or to be resolved by us.
29. CORE ISSUE :
29.1 Whether the School is a unit or Educational Agency consisting of one or more schools shall be the unit for the purpose of fixation and identification of the excess staff ?
30. In respect of this issue, all the learned counsel appearing for the petitioners / Institutions have made elaborate submissions both orally as well as by written submissions to strengthen their stand that, the school alone shall be the unit and not the Educational Agency.38/145
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31. In response to the same, the learned Advocate General appearing for the State has filed written submissions on behalf of the State and also on behalf of the State, affidavit has been filed by the Joint Secretary to the Government.
32. In order to answer the question, whether the school is a unit or not, the following written submissions made on behalf of the State can be taken note of :
"Staff Fixation While fixing the staff strength as on 1st August as stated above, the following norms shall be followed.
1. Requirement of each school has to be assessed separately. Hence 'school' is treated as an 'unit' for the purpose of fixation of staff strength.
2. The posts sanctioned to a school prior to 1991-92 and the present strength of the staff fixed based on the pupil strength as on 1st August of the current year whichever is less shall be the norms for fixing the staff strength.39/145
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3. In case there is a need for posts to handle higher secondary school classes and there are surplus teachers in immediate lower category posts but qualified to handle higher secondary standards, such surplus staff can be utilized for the higher secondary standards as temporary measure without any financial benefit.
4. Educational Agency under Corporate Management shall not resort to new appointment till the deployment of surplus teachers is exhausted and CEO concerned gives a report to this effect."
33. Therefore both parties have agreed on this issue, that the school alone shall be treated as a unit for the purpose of fixation of staff strength and for the purpose of identification of the excess staff. Therefore we do not propose to go in detail as to the arguments advanced in this regard on behalf of the Institutions as to why and how it should be concluded that, the school alone is a unit for the purpose of staff fixation and accordingly, we deem it and hold so that, the school is a unit for the purpose of fixation of staff strength and not the group of schools or Educational Agency. 40/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
34. The next core issue is that, how to fix the staff strength and how to find out the excess staff of the school. In this context, arguments have been made by the learned counsel for Institutions / Teachers.
35. Mr.Isaac Mohanlal, Fr. Xavier Arul Raj and Mr.Ajmal Khan, learned Senior counsel appearing for the petitioners made the following submissions :
"(a) These cases are concerned with the fixation of staff strength for aided school, grant of approval while filling up the vacant position and disbursement of granting aid towards salary and allowance.
(b) The Tamil Nadu Private Schools (Regulation) Act, 1973 and the Rules, 1974 made thereunder as well as the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 are the governing Statutes of these issues. The Right of Minorities to administer Educational Institutions as has been recognised by the provisions of the Constitution and various decision of the Hon'ble Supreme Court, time and again have upheld its right to appoint and administer the teaching and non-teaching staff of those minority run institutions.41/145
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(c) According to them, the major area of concern is that, assessment of staff strength every year, uncertainty in mode of assessment, unit for assessment, disregards of English medium standards for assessment, lack of time schedule in finalising staff fixation, departments prior permission for filling up vacancy, departments approval of appointments for grant in aid."
36. Insofar as the assessment of staff strength is concerned, as has been discussed above, the learned counsel made submissions that, the issue has been decided in number of decisions at various point of time by this Court, such as 2018 (1) WLR 421, W.A.(MD).No.872 of 2018, dated 29.06.2018, W.A.(MD).No.639 of 2015, dated 17.06.2015 and W.P.(MD).No.7966 of 2018, dated 19.04.2018. In this context, the first core issue as to whether the school or cluster of school shall be the unit for assessment is concerned, there has been a consensus as stated above that, only the school shall be the unit and based on the pupil strength in that particular school alone staff strength should be fixed.
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37. However, while fixing such staff strength, what shall be the ratio of pupil-teacher is concerned, up to the Full Bench Judgment cited supra, that every standard shall be taken into account, that means even if one standard is having less number of students of minimum of 40 or 35 as the case may be, one teacher is a must for handling such standard, for instance, in Elementary school, there shall be five teachers minimum, that has been held by the Full Bench.
38. Even though it has been argued now by the learned Advocate General on behalf of the State that, in view of the RTE Act, the Judgment of the Full Bench in Vigila's case is nullified by issuance of subsequent enactment of RTE Act and the consequential G.O.Ms.No.231, School Education (C2) Department, dated 11.08.2010, whether the said argument would be sustained, is the important question to be answered.
39. In this context, if we look at the relevant provisions of the RTE Act as well as the objects and reasons of the said Act, it is stated that the RTE Act had been proposed to be enacted with a view to provide that every child has a right to be provided full time elementary education of satisfactory and 43/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch equitable quality in a formal school which satisfies certain essential norms and standards. It aims to achieve the compulsory education, casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education. It has further been provided to aim at free education, which means that, no child other than a child who has been admitted by his parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee, charges or expenses which may prevent him or her from pursuing or completing the elementary education. It is also the duties and responsibility of the appropriate Government, local authorities, parents, schools and teachers in providing free and compulsory education.
40. In this context, if we look at Section 3 of the RTE Act, it reads thus:
"3. Right of child to free and compulsory education. - (1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or 44/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch her elementary education.
(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education:"
41. The right of the children to free and compulsory education between 6 to 14 years since having been declared as a Fundamental Right, in view of the introduction of the Article 21A of the Constitution, no child can be compelled to pay for having the elementary education between 6 to 14 years, provided if the child is admitted in a school run by the Government or supported by the Government.
42. In this context, if we look at the schools which were established and recognised by the State Government and also for the teaching grant under the erstwhile Madras Education Rules as well as the grant in aid code and subsequently, under the Private Schools Regulation Act and the Rules, those schools which were established and running all along with the approval and aid of the state Government, whether can be denied the aid for 45/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch the teaching staff appointed from time to time, in view of the enhancement of pupil strength in a particular standard is concerned? The stand of the State Government is that, by virtue of Section 14A of the Act, the school even though was recognised and was receiving aid, shall not be entitled to get any further aid for expansion of classes or enhancement of pupils strength, in other words, for appointment of additional staff the purpose of enhancement of additional pupil in recognised school which was getting aid prior to 1991-92, it would not be entitled to get such an aid with effect from Section 14A of the Act comes into force.
43. In this context, if we look at Section 14A of the Act, it reads thus :
"14A. Grant not payable to new private schools and new class and course of instruction. - Notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court or other authority, no grant shall be paid to, -
(a) any private school established and any class or course of instruction opened in such private school, on or after the date of commencement of the academic year 1991-1992;46/145
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(b) any private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement;
(c) any class or course of instruction in a private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement; and
(d) any class or course of instruction opened on or after the date of commencement of the academic year 1991-1992 in a private school in existence on the date of such commencement.
Explanation. - For the purpose of this section, private school includes a minority school."
44. No doubt, no grant shall be paid to any Private School established and any class or course of instruction opened in such private school on or after the date of commencement of the Academic year 1991-92.
45. Absolutely there can be no quarrel in the said decision taken by the State Government, as the wisdom of the State Legislature thought it fit to 47/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch bring such an amendment by inserting Section 14A in the Act, by which, beyond Academic Year 1991-92, no further grant would be granted for any school established even by a minority as a staff grant and any class or course of instruction opened in such private school already established, on or after the commencement of the Academic Year 1991-92, even for such establishment of class or course of instruction, no such staff grant would be granted.
46. However, once the elementary education for the child between 6 and 14 years become a Fundamental Right and in view of the same, RTE Act having been enacted to achieve the said goal and especially in the context of Section 3 of the said Act as quoted above, whether the stand now taken by the State Government that, after 1991-92 whatever the enhancement of pupil for which any new course or classes are started, no aid can be granted from 1991-92 academic year onwards in view of Section 14A of the Tamil Nadu Private Schools (Regulation) Act, 1973, would still sustain even after the academic year 2010-11, in view of the RTE Act provisions, is a question to be answered.
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47. Law is well settled in this regard that, since the education become the subject of the concurrent list under Entry 25 of List III of Schedule VII of the constitution, both the Parliament as well as the State Legislature concerned would have legislative competence to enact law on the subject.
48. Since RTE Act has been enacted by the Parliament and the same having been adopted by all States including the State of Tamil Nadu to implement the provisions of the said Act to ensure free and compulsory education of all students or children at the age between 6 to 14, no action shall be taken by the State Government detrimental to achieve the said avowed object and goal of RTE Act.
49. Since Section 3 of the RTE Act has made it very clear that, every child of the age between 6 to 14 years shall have the right to free and compulsory education till completion of his or her elementary education, the Government cannot shut the door for making such facilities by not extending the staff grant to the staff who are required to be employed for teaching to the students of elementary education between the age of 6 and 14 in any aided school not withstanding the import of Section 14A of the 49/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Tamil Nadu Private Schools (Regulation) Act, stating that no such staff grant would be given for such additional staff required for the purpose of extension of course or section or enhancement of students in the existing recognised aided private school.
50. When that being the legal position, the blunt stand now taken by the State Government that, in view of Section 14A of the Tamil Nadu Private Schools (Regulation) Act, beyond the academic year 1991-92, since the institutions were not entitled to get additional grant for any additional class, course started in the school already established and getting aid, would not be entitled to get any aid for additional course or classes even now, may not hold good after the academic year 2010-11, in view of the provisions of the RTE Act.
51. Therefore we have no hesitation to hold that, if an elementary school was established and was getting aid from the State Government prior to 199-92 and continue to get the same, and after the Academic Year 2010-2011, if that school has expanded its class or course in elementary education in view of the additional strength of pupil joined in the particular 50/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch school, the necessary additional staff required for such school shall be fixed and sanctioned by the State authorities with staff aid.
52. Otherwise, if the State Government deny to extend the staff grant for the staff or additional staff required for teaching of the pupil in elementary school based on the pupil strength, that would amount to be a denial of free and compulsory education to the child or children admitted in the school concerned, which is already an aided school prior to 1991-92, as that stand of the Government would run contra to the provisions of the RTE Act. Therefore the State Government cannot take such a rigid stand as they have taken in this batch of cases both in the affidavit filed on behalf of the State Government as well as the written submissions made on behalf of them by the learned Advocate General and the learned Special Government Pleader.
53. Since the issue of staff fixation is mainly on these points that, whether the school is a unit or not and for additional section opened in elementary education, whether the schools are entitled to get the State grant or not is concerned, since both the issues having been answered as discussed above, let us move on to the next issue as to how such excess staff of the already running school with aid, are to be identified and once the 51/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch excess staffs are identified, whether they can be redeployed either by the school concerned or by the management concerned directly or by the Educational Authorities.
54. In order to answer these queries, number of Judgments made by this Court in this regard have been quoted. Few decisions among them are discussed hereunder.
55. Before a Division Bench of this Court in the matter of The Director of Elementary Education, Chennai and others v. The Correspondent, St. Joseph's RC Primary School, reported in 2018-1-Writ LR 421, the following issue had come up for consideration :
"The only point for consideration in both the Writ Appeals is whether a Government Aided Minority School run by a Corporate body having more than one School can recruit fresh Teachers when there are surplus Teachers in other schools under the same Management."
The Division Bench having gone into various Judgments of this Court and the relevant GOs in this regard including G.O.Ms.No.525, has 52/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch ultimately held as follows :
"III.DISCUSSION AND FINDINGS:
40.Admittedly, both the Schools are Minority Institutions.
i) Each and every School run by the same Corporate body has been assessed individually.
ii) Each and every School has been granted separate recognition.
iii) The grant of aid by the Government is assessed for each and every School separately.
iv) The number of students, fixation of staff strength etc., is also Institution based and is not based on the group.
v) The Appellants have also not intimated the number of surplus Teachers for that particular School which is alleged to have surplus staff.
vi) Eventhough, the amended Rule 15(4)(ii) of the Tamil Nadu Recognised Private Schools (Regulations) Rules, 1974, talks about "Corporate body running more than one School, the Schools under the body shall be treated as one unit", the Corporate body is not granted separate 53/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch recognition but only the individual School is granted recognition under the Tamil Nadu Recognised Private Schools (Regulation) Act. Further, the term Corporate body is also not defined under the Act.
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47.As regards the financial implications and Audit objections raised by the Appellants on account of surplus Teachers, the Schools cannot be blamed as they have not violated the relevant Provisions of the Act or its Rules. Rule 2 and 42 of the grant in aid code permits the Appellants to refuse or to withdraw any grant to the Aided Schools at their discretion, if the concerned School violates any of the conditions contained therein. The Appellants have also not been able to pinpoint as to which conditions stipulated therein have been violated by the respective Schools. It is also not the case of the Appellants that the grant of aid to the respective Schools have been stopped on account of the violation of Rules 2 and 42 of the grant in aid code of the Tamil Nadu Educational Department.
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48.The internal circular issued by the First Appellant in Na.ka.No.28541/H3/2010 dated 27.12.2010 to all the District Elementary Educational Officers in Tiruchirappalli District that only after obtaining certificate from the District Elementary Educational Officer, that there are no surplus Teachers, approval can be granted for fresh appointments is not issued as per the Provisions of the Act or its Rules. The circular must be in consonance with the Act and its Rules. The Appellants (State) have also not made any amendment to the Rules in accordance with the said circular. Therefore, the circular dated 27.12.2010 in Na.Ka.No.28541/H3/2010, which is not in consonance with the Act and its Rules cannot be relied upon by the Appellants.
49.The School involved in W.A.(MD)No.1292 of 2017 has a sanctioned strength of 11 Secondary Grade Teacher posts and the Teacher for whom the approval was sought for is the 11th Teacher and therefore, School has not exceeded the sanctioned strength.
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50.The School involved in W.A.(MD)No.461 of 2014 has a sanctioned strength of 2 Secondary Grade Teacher posts and the Teacher for whom the approval was sought for is the 2nd Teacher and therefore, School has not exceeded the sanctioned strength. Therefore, there are no surplus Teachers in each of the Schools involved in these Writ Appeals.
51.In the case on hand, it is not the case of the Appellants that the appointment procedure was not fair but was discriminatory and irrational. This same Division Bench, by its recent judgment rendered in W.A.(MD)No.1350 of 2017 on 14.11.2017, while considering the issue whether a Government Aided Minority Educational Institution is required to obtain prior approval from the concerned Educational authorities for conversion of a Secondary Grade Post to a B.T. Assistant post before making appointment of a Teacher in the B.T. Assistant post, considered all the judgments rendered by the Hon'ble Supreme Court till date and held that there is no necessity for the School to obtain prior permission for conversion of post from the authorities concerned 56/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch when there is a vacancy.
52.Article 30 (1) of the Constitution of India gives linguistic and religious minorities a fundamental right to establish and administer Educational Institutions of their choice. These rights are protected by a prohibition against their violation. The prohibition is contained in Article 13 of the Constitution of India, which declares that any law in breach of the fundamental rights would be void to the extent of such violation. It is well settled that Article 30 (1) cannot be read in a narrow and pedantic sense and being a fundamental right, it should be given its widest amplitude. The width of Article 30 (1) cannot be cut down by introducing in it considerations which are destructive to the substance of the right enshrined therein."
56. The said decision of the Division Bench in St.Joseph's RC Primary School (cited supra) reported in 2018-1-Writ LR 421 has been reiterated and followed by another Division Bench in W.A.(MD).No.872 of 2018 in the matter of State of Tamil Nadu Rep. by its Secretary of Department of 57/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch School Education and others v. M.Anbalagan and another, dated 29.06.2018, where it has been held as follows :
"2. The question of whether a Government Aided Minority school run by a body of persons having more than one school, could recruit teachers when there were surplus teachers in other schools under the same management, was answered in favour of the first respondent/writ petitioner and against the appellant authorities in Director of Elementary Education Vs. The Correspondent, St.Joseph's RC Primary School, reported in (2018) 1 WLR 421.
3. A Division Bench of this Court, following the Judgment of the Supreme Court in Secretary, Malankara Syrian Catholic College Vs. T.Jose and others, reported in (2007) 1 SCC 386, where the Supreme Court had reaffirmed that the right of minority educational institutions to establish and administer educational institutions of their choice included the right to appoint teaching staff as also nonteaching staff, held that Regulations could only be made for the welfare of the students and the teachers and to prevent oppression of employees.
4. The Division Bench held that the prohibition to appointment of teachers in one school when 58/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch there was a surplus in other schools run by the same management did not come within the parameters laid down by the Supreme Court in its Judgment in T.M.A.Pai Foundation Vs State of Karnataka, reported in (2002) 8 SCC 481.
5. It is true that when aid is granted to a particular school and the salary burden of the teachers is borne by the State, the State might refuse to regularize teachers appointed beyond the sanctioned strength and withhold financial assistance to facilitate payment of the salary and emoluments of teachers appointed in excess of the sanctioned strength of that school. There can be no question of adjustment of excess in one school with another school, unless the minority management decides to reallocate the teachers by transfer from one school to the other.
6. As a Bench of co-ordinate strength, judicial discipline demands that we follow the judgment in Director of Elementary Education Vs. The Correspondent, St.Joseph's RC Primary School, (supra). We find no reason to interfere with the order under appeal. The Writ Appeal is dismissed.
No costs. Consequently, connected Miscellaneous Petition is closed."
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57. Similar issue came up before the writ court in W.P.(MD).No.7966 of 2018, before one of us (R.SURESH KUMAR, J), where, the view taken by the writ court by order, dated 19.04.2018 in the matter of The Correspondent, Acrockia Annai Primary School v. The Director of Elementary Education, Chennai - 6 and others, reads thus :
"14. I have considered the rival submissions made by both the counsel on either sides and also perused the materials placed before this Court.
15. It is a fact that, the petitioner School is a recognised minority aided School. The staff strength has been fixed by the Competent Authority for the Academic year 2015 - 16 on 04.02.2016. According to the staff fixation, three posts of Secondary Grade Teachers have been sanctioned to the petitioner School. Out of the three, one incumbent was promoted. Therefore, in the vacancy arisen due to the said promotion, the petitioner School appointed the present Teacher namely A.Joyce on 01.06.2016 and the proposal was sent on 30.08.2017 to the second respondent through the third respondent.
16. It is also an incontrovertible fact that, for 60/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch the academic year 2016-17 also, by order dated 20.04.2017, staff fixation was made according to which three nos., of Secondary Grade Teacher posts sanctioned for the petitioner's School, have been retained. Therefore, there can be no quarrel that the petitioner School is having three sanctioned post of secondary grade Teacher for the Academic Years 2015 – 16 and 2016 – 17 also. Since the admission was made during the Academic Years 2015 – 16 and 2016 -17, the date of appointment according to the petitioner is on 01.06.2016, at any rate, the said appointment was made only within the sanctioned staff strength of the secondary grade Teacher of the petitioner School.
17. Initially, the proposal was rejected for four queries. Out of the four, requirement of Teacher Eligibility Test (T.E.T.) is not required for the Teacher, appointed in the petitioner's School, as it is a minority institution. 18. Insofar as, the other reasons are concerned, except the reason of demanding the certificate or NOC from the Diocese of Kottar, which is the Management of the petitioner's School, to declare that there is no surplus secondary grade Teacher posting available 61/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch in any one of the 109 Schools run by the petitioner Management, all other defects pointed out in the order dated 11.09.2017 of the third respondent has been rectified and the proposal with rectification was resubmitted on 07.02.2018.
19. Having considered the resubmitted proposal, now by impugned order dated 05.03.2018, the third respondent has given only one reason for the rejection of the proposal in the second time. According to the third respondent, the Bishop of RCD, Kottar Diocese shall give a certificate that, there is no excess secondary grade Teacher posting available in any of the Schools run by the Diocese. The said certificate as required by the impugned order, according to the petitioner, is not required to be obtained or to be produced for the purpose of getting approval of the secondary grade Teacher appointment at the petitioner's School in a sanctioned vacancy.
20. The reason for such demand made by the third respondent as supported in the counter affidavit filed by the second respondent is that, the Diocese is running more than 100 Schools including the petitioner's School. In all these 62/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Schools, there are more than 100 teaching posts, which are found to be excess and among the said posts, one of the secondary grade Teacher can be re-deployed to the petitioners School instead of filling the secondary grade Teacher post available at the petitioner School from the open market candidates.
21. In this regard, it is the stand of the official respondents that the entire Management (i.e.,) RCD, Kottar shall be treated as a single Unit. This reasoning given by the respondent to treat the Management (i.e.,) RCD, Kottar as a single Unit for the purpose of sanctioning of teaching staff, cannot be accepted for this simple reason. The procedures, which are followed by the respondents to sanction the teaching post is not on the basis of the Management but only on the basis of the School.
22. Though a particular Management can run several educational institutions, it is a common knowledge that each and every educational institution run by the same Management, will be a separate entity in the eye of law. For instance, if a Management runs Schools and a College of Engineering and College of Education and 63/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Polytechnic etc., one cannot say that all these institutions are run by the same Management and therefore, wherever the Teachers recruitment is made, the same can be adjusted among themselves of the said Schools under the same Management by way of deployment/ re-deployment.
23. The reason for such impossibility is concerned, the institution/ School alone is taken as an unit for the purpose of identifying and fixing the Teacher-Pupil ratio.
24. In this regard, the Government Order in G.O.Ms.No.525, dated 29.12.1997 would be relevant, wherein, the Teacher-Pupil ratio of the School concerned would be decided based on the guidelines given in the said Government order under the heading 'Elementary School' , 'Middle School' and 'High School' respectively.
25. Paragraph No.8 of the said Government Order has been extracted above. It is specifically stated that, the assignment of the grant of post as per the orders shall be done on the basis of the average attendance. Average attendance means, average attendance of the Pupil of that particular School. The Government Order further states that, the staff strength shall be fixed by the District 64/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Educational Officer concerned for High School and Higher Secondary School and by District Elementary Educational Officer in respect of Elementary School and Middle School. The Government Order further says that, those, who may be rendered surplus due to application of these norms shall as far as possible be deployed to the needy Schools. The Government Order further states that, the re-deployment of staff in Schools shall be done by the Director of School Education and Director of Elementary Education or the officers to be authorized by them.
26. Therefore, it became abundantly clear that, only based on the attendance of the Pupil in a School, assessment are made to fix the grant of staff strength. Once staff strength is fixed by the Authorities concerned, and if surplus staff is found, they can be re-deployed to the needy Schools and such exercise of re-deployment of staff in Schools shall be done only by the Director of School Education and Director of Elementary Education or the officials to be authorized by them.
27...65/145
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28...
29. As it is set out above, since each of the educational institution is a separate legal entity and each School has to fulfill the norms prescribed in the relevant Act, Rules and Regulations governing the functioning of the said educational institutions and Pupil strength of the particular School and the staff strength as fixed by the Authorities as set out above, redeployment can be done by the concerned Authority alone, if they find any excess staff in any of the Schools under their jurisdiction.
30. Therefore, that important job, since has been entrusted only to the officials, cannot be passed on or switched over to the Management of the Schools, as has been done in the present case.
31. It is a settled proposition of law that, if a particular thing has to be done in a particular manner as contemplated under the law, the same shall be done only in that manner.
32. Here in the case in hand, redeployment shall be done only by the particular Authority (i.e.,) by the Director of School Education or Director of Elementary Education or by the officials to be authorized by them. Such an 66/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch exercise is now expected to be done by the School Management as has been indicated in the impugned order. Therefore, the said reason cited in the impugned order by the third respondent, as the only reason for rejecting proposal of the petitioner School for the approval of the appointment to the secondary grade Teacher in the sanctioned vacancy is considered, is totally unjustifiable and unsustainable also."
58. After the RTE Act came into effect, as per Section 25(1)of the Act, within six months from the date of commencement of the Act, which was subsequently amended as three years, the appropriate Government and the local authority shall ensure that, the pupil teacher ratio as specified in the schedule is maintained in each school.
59. In order to have a quick reference, Sections 25 and 26 of the RTE Act are extracted hereunder :
"25. Pupil-Teacher Ratio. - (1) [Within three years] from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher 67/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Ratio, as specified in the Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-
Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non- educational purpose, other than those specified in section 27.
26. Filling up vacancies of teachers. - The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent. of the total sanctioned strength."
60. Pursuant to these provisions of the RTE Act, State Government has come forward to issue G.O.Ms.No.231, dated 11.08.2010, where the State Government having accepted the recommendations of the Advisory Committee on free and compulsory Education Act, issued the following orders :
68/145
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1. The Director of School Education and the Director of Elementary Education are directed to undertake the initial process of rationalizing the deployment of existing teachers as per the Pupil Teacher ratio specified in the Schedule to the Act.
2. The Director of School Education and the Director of Elementary Education are also directed to do a complete survey of the students enrolled and teachers working in elementary sections as on 1.9.2010 based on the Pupil Teacher ratio specified in the Act.
3. The Director of School Education and the Director of Elementary Education are requested to initiate steps thereafter to rationalize the deployment of existing teachers to address the problem of imbalances in teacher placements.
Rationalizing the deployment of teachers should be done in respect of both the Government controlled and aided schools."
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61. Therefore, G.O.Ms.No.231, School Education (C2) Department, dated 11.08.2010 has made it clear that, the student teacher ratio shall be fixed in a school as per the provisions of the RTE Act and accordingly, the rationalization has to be undertaken by the School Education Department and once the rationalization is undertaken, wherever teachers are required, those teachers shall be sanctioned and appointed not only in Government schools but also in Government aided schools and in respect of redeployment of teacher, no teacher appointed in any school shall be made to serve in any other school, that means, the excess of teachers in a school shall be identified only by the authorities by taking into account the teacher- pupil ratio and the actual attendance and the strength of the pupil in a particular academic year.
62. Once such excess teachers are identified, then how those excess teachers shall be transferred or redeployed to a needy school.
63. In this context, the State Government has made available the following proposal before this Court and to state that, the State Government is intended to bring these guidelines as a statutory guidelines for 70/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch redeployment of surplus teachers in supersession of the earlier Government Orders on the subject. To appreciate the same, the proposal submitted by the State Government are extracted hereunder :
"The Government propose the following Guidelines on the re-deployment of Surplus Teachers in supersession of earlier G.Os on the subject -
1. The DEO concerned in respect of primary, middle schools, high and higher secondary schools shall fix the strength of the staff based on the strength of the pupil updated in the EMIS on the 1st day of August of every academic year and shall complete the assessment process on or before 12th August of the academic year.
2. The staff fixation statement shall be forwarded by the DEO / CEO to the secretary of the school committee / management of the school concerned on or before 15th August. Surplus teachers identified should be the junior most teachers in that school who have served in that school who have served in that school for atleast two years. However this condition of two years in that school need not be insisted in case mentioned at para 11 below. If the junior most teacher has 71/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch not served for two years, then the next higher teacher to be identified.
3. The Secretary of the school committee / the management of the school shall thereafter explore the possibility of accommodating the surplus staff against any eligible vacant post in any other aided school under the same educational agency and within the Revenue District and send the report to the DEO concerned by 22nd August. The CEO / DEO shall thereafter issue deployment orders to the secretary of the school committee / management of the school from and to which the surplus teachers are to be deployed for accommodating the surplus teachers within the Educational District on or before 31st August.
4. If there are surplus teachers still available after the deployment made by the DEO concerned, the DEO shall forward the list of remaining surplus teachers to the CEO concerned for accommodating the surplus teachers in the schools within the Revenue District on or before 1st September.
5. The CEO concerned shall issue deployment orders for accommodating the surplus teachers available from out of the list forwarded by the 72/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch DEO within the Revenue District on or before 10th September.
6. If the CEO is unable to accommodate the surplus staff with post within the Revenue District he shall communicate the list of surplus posts with staff and without staff to the Director concerned on or before 10th September.
7. On receipt of the list of surplus posts with and without staff
(a) the Director concerned shall resume the surplus posts without staff to the common pool and communicate the same to the secretary of the school committee / management of the school / DEO / CEO concerned and in respect of surplus posts with staff, the Director concerned shall accommodate the identified surplus teacher against the eligible vacancy in other school coming under the same education agency in the adjacent Revenue District.
(b) If no such vacancy is available, the teacher shall be given an opportunity of exercising option as to whether she is willing to be deployed
(i) to the eligible vacancy in other school under the same educational agency but in far away district or 73/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
(ii) to the eligible vacancy in other school under another educational agency but in the nearby district.
(iii) in case of conflict in choice the senior teacher should be given preference.
(c) The above process shall be done by conducting a counselling by the Director / CEO concerned and shall be completed by the Director concerned on or before 30th September.
(d) Even after all these processes there are still surplus teachers available in the schools or in the same corporate management or where such deployment is felt difficult, such surplus teachers available with the Director concerned shall be sent on deputation to some other nearby Government School or Government aided school by the CEO concerned till the vacancy arises in any other aided school for the purpose of deployment.
8. The staff who is found to be surplus in a school should join the school to which he has been deployed within a period of 15 days from the date of receipt of the deployment order failing which disciplinary action will be initiated against the staff concerned.74/145
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9. The staff who has been issued with deployment order has no vested right to choose a particular place since he should be prepared to work anywhere as ordered.
10. Where the secretary of the school committee / the management of the school refused to relieve the deployed staff or where the secretary of the school committee / the management of the school to which such staff has been deployed refuses to accommodate the deployed staff, the grant in aid extended to that particular post which has been declared surplus shall be stopped immediately forthwith.
11. If vacancies arise in the school from which the surplus teacher was deployed, consequent on increase in the strength of the student in the next academic year, the surplus teacher so deployed shall be re-transferred to that school on obtaining willingness of that teacher.
12. These guidelines shall be effected through online mode from the next academic year 2021-2022."
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64. In this regard, it is to be noted that, one of the core issue that was posed for consideration before this Court is that, in order to have a hassle free redeployment of excess staff, prior to that, how to fix the staff strength followed by how to assess the excess staff in a particular aided school in each of the academic year, whether a comprehensive compendium of schedule can be fixed by this Court. Both sides have agreed upon to fix such a compendium of schedule for fixing the staff strength, identification of excess staff and redeployment of excess staff to the needy school, in order to have the effective imparting of education to the children in the needy school, and also to avoid payment of salary to the staff who are excessively working in a school, by thus the huge money from the state Exchequer being wasted can be effectively saved.
65. In this regard, on behalf of the Institutions, a statement on summary of schools, students and teachers in the state of Tamil Nadu has been provided, which reads thus :
"Summary of Schools, Students and Teachers in Tamil Nadu Schools Number of Government schools - 37,211 (81.5%) 76/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Number of Government aided schools - 8,403 (18.5%) Students Number of students in Government schools - 54,71,544 (65.79%) Number of students in Government aided schools - 28,44,693 (34.20%) Teachers Number of teachers in Government schools - 2,32,466 (74.34%) Number of teachers in Government aided schools - 80,217 (25.65%) Average students in a school Government schools : 54,71,544 / 37,211 = 147.0 Aided schools : 28,44,693 / 8,403 = 338.5 Average students in a school Government schools : 2,32,466 / 37,211 = 6.2 Aided schools : 80,217 / 8,403 = 9.5 Teacher-Pupil Ratio Government schools : 54,71,544 / 2,32,466 = 1:23.5 Aided schools : 28,44,693 / 80,217 = 1:35.5 Private Unaided Schools Number of Schools : 12,419 Number of Students : 48,69,289 Average students in a school : 392 77/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Details Government Private (Aided Total and Unaided) Schools 37,211 (64.11%) 20,823 (35.88) 58,034 Students 54,71,544 (41.50%) 77,13,982 1,31,85,52 (58.50%) 6 Source : Sarva Shiksha Abhiyen website and World Bank website"
66. The aforesaid statistics claimed to have been taken by the source through Sarva Shiksha Abhiyan website and World Bank website.
67. In this context, it is to be further noted that, after the orders of this batch of cases were reserved, by communication, dated 28.10.2020, the Director of School Education, Chennai – 6 as well as the Director of Elementary Education, Chennai - 6, Government of Tamil Nadu in R.C.No. 034116/D1-S4/2013 and R.C.No.021889/H4/2019 has given certain details about the actual vacancies and surplus staff available in Government schools, which include Panchayat union, Municipality and Corporation as well as Government aided primary and middle school and also the Government High and Higher Secondary Schools as well as the aided High and Higher Secondary Schools as on 30.04.2020. In order to appreciate the said statistics, which is the latest one provided by the State Government 78/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch through the two communications referred to above by the concerned Directors, i.e., Director of Elementary Education as well as the Director of School Education, those communication with statistics are extracted hereunder :
The letter of Director of Elementary Education reads thus :
With reference to your letter cited I am to state that in G.O.(Ms)No.51, P&AR dated 07.05.2020 the age of retirement of Government servants / teachers has been enhanced from 58 to 59 years. Hence persons who attained the age of superannuation on and after 31.05.2020 will be permitted to retire from service after one year. Therefore the details of surplus teachers with posts including eligible vacancies have been worked out from 01.08.2019 to 30.04.2020 only. If at all any vacancy that may arise from 31.05.2020 to 30.09.2020 will only be due to death, resignation or voluntary retirement which may be of very few numbers.
The details of surplus teachers with posts and the number of eligible vacancies in the Government / Government aided primary and middle schools for the year 2019-20 are furnished below:-
Government Schools (Panchayat Union, 79/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Municipal and Corporation) Primary and Middle Schools 1177 surplus teachers with posts available. 26 persons retired on attaining the age of superannuation between 01.08.2019 to 30.04.2020 These retirement vacancies (26) have been filled up by 26 available surplus teachers (not given re- employment as per the orders issued in G.O.(Ms) No. 261 SE dated 20.12.2018) Balance surplus teachers available - 1151 However, at the same time, eligible vacancies arrived at - 3624.
1151 surplus teachers with posts are to be accommodated in the 3624 vacancies only through deployment which has not yet been commenced. If 1151 surplus teachers are deployed in the available 3624 vacancies, the balance vacancies that will be available are 2573.
As such no surplus teachers are available in Government Schools as on date.
Government aided Primary and Middle schools 6356 surplus teachers with posts available. 120 persons retired on attaining the age of superannuation between 01.08.2019 to 30.04.2020. These retirement vacancies (120) have been filled 80/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch up by 120 available surplus teachers (not given re- employment as per the orders issued in G.O.(Ms)No. 261 SE dated 20.12.2018) Balance surplus teachers available - 6236 Eligible vacancies arrived at - 836 (722 Secondary Grade Teachers and 114 B.T. Assistants) 836 vacancies will be filled up by the available 6236 surplus teachers through deployment After deployment process 5400 surplus teachers will be still available.
These 5400 surplus teachers with posts available in Government aided Primary and Middle Schools shall be sent on deputation to the Government Schools and as and when vacancies arise in the parent school, they will be reverted back to the parent school.
The letter of Director of School Education reads thus :
With reference to your letter cited I am to state that in G.O.(Ms)No.51, P&AR dated 07.05.2020 the age of retirement of Government servants /teachers has been enhanced from 58 to 59 years. Hence, persons who attained the age of superannuation on and after 31.05.2020 will be permitted to retire from service after one year. Therefore, the details of surplus teachers with posts including eligible vacancies have been worked out 81/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch from 01.08.2019 to 30.04.2020 only. If at all any vacancy that may arise from 31.05.2020 to 30.09.2020 will only be due to death, resignation or voluntary retirement which may be of very few in numbers.
The details of surplus teachers with posts and the number of eligible vacancies in the Government/Government aided High and Higher Secondary schools for the year 2019-20 as on 30.04.2020 are furnished as follows:-
DIRECTORATE OF SCHOOL EDUCATION (DSE) A) GOVERNMENT HIGH AND HIGHER SECONDARY SHCOOLS (STATUS OF SURPLUS TEACHERS AS ON 30th APRIL 2020)
1.Surplus Teachers with posts in DSE : 2930
2.Number of Teachers retired on attaining the age of superannuation from 02.06.2019 to 30.04.2020 : 840
3.Number of surplus teachers among the retired Teachers : 458
4.Eligible Vacancies among the retired vacancies :840-458 = 382
5.Total Eligible vacancies 82/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch (including 382 eligible retired vacancies) : 1902 (The Eligible 1902 vacancies will be filled up through deployment from the 2472 surplus posts.)
6.NET SURPLUS POSTS AFTER FILLING UP OF THE ELIGIBLE VACANCIES : 2472-1902 = 570 B) AIDED HIGH AND HIGHER SECONDARY SCHOOLS (DSE) (STATUS OF SURPLUS TEACHERS AS ON 30th April 2020)
1.Surplus Teachers with posts in DSE : 2250
2.Number of Teachers retired on attaining the age of superannuation from 02.06.2019 to 30.04.2020 : 277
3.Number of surplus teachers among the retired Teachers : 17
4.Eligible Vacancies among the retired vacancies : 277-17 = 260
5.Total Eligible vacancies (including 260 eligible retired vacancies) : 260 (The Eligible vacancies of 260 vacancies will be filled up through deployment from the 2233 surplus posts.)
6.NET SURPLUS POSTS AFTER FILLING UP OF THE ELIGIBLE VACANCIES : 2233-260 83/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch = 1973 Director of School Education"
68. The above communications were infact sent to the Special Government Pleader, Madurai Bench of Madras High Court, Madurai, by letters in the reference cited above, dated 28.10.2010 of the Director of Elementary Education and Director of School Education respectively, which were circulated to us.
69. In the meanwhile, a writ petition on public interest have been filed before the Principal Seat of this Court in W.P.No.31575 of 2019, where a Division Bench, wherein one of us (M.SATHYANARAYANAN,J), is a party, by order, dated 08.11.2019 has passed the following order :
"2. The learned counsel appearing for the petitioner has invited the attention of this Court to the details of surplus teachers as on 01.06.2018 and would submit that the said details pertain to surplus teachers available in High Schools and Higher Secondary Schools run by Government Aided Institutions and Minority Institutions and it is relevant to extract the same:
Sl District No. of surplus post (with person) (subject wise)
.No Name
SGT Tamil English Maths Science Soc. Other Total
Science Sub.
Grand Total 802 1533 1836 3908 3074 1678 0 12831
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3. Attention of this Court was also invited to the information made available by the Directorate of Elementary Education and it is also relevant to extract the same:
DIRECTORATE OF ELEMENTARY EDUCATION MINORITY / NON-MINORITY Elementary and Middle Schools Surplus Teacher particulars S.No Name of the Post No. of One Month One Month One Year Total Post Average Total Average Average Expenditure for Expenditure (Rs.) Expenditure (Rs.) One Post (Rs.)
1. Secondary Grade 5512 40300 222133600 2665603200 Teacher
2. BT Assistant 393 69290 27230970 326771640 Total 5905 249364570 2992374840 The Directorate of School Education apart from giving the details of surplus teachers had also given the details of the expenditure per month for Selection Grade Teacher, B.T Teachers, P.G. Assistant and Special Teacher and the same is extracted hereunder:
DIRECTORATE OF SCHOOL EDUCATION STATEMENT OF SURPLUS TEACHERS 2018-2019 S. Dist P.G. P.G. B.T. B.T. Second Speci Salary of Per No Assistant Assistant Teach Teacher ary Grade al Secondary month of salary er Salary (PM) Teacher Teacher Grade all teachers Teacher and Special Teacher Grand Total 83 34,51,389 1,103 4,01,49,200 326 291 1,27,10,200 5,63,10,789
4. The primordial submission made by the learned counsel appearing for the petitioner is that each and every year, admission of students in Government and Aided Schools continue to show decline and this Court can also take judicial notice of the fact that nowadays, teachers are provided with good salary and emoluments and despite 85/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch lack of students strength, recruitments by the Teachers Recruitment Board continues to take place and would further point out that though Article 30 of the Constitution of India guarantees right to the minorities, the practice being adopted by the said Institutions is that despite surplus teachers are available, they are going on recruiting teachers and pressing for aid from the Government, which also leading to unnecessary expenditure on the part of the Government and it is high time that such kind of practise should be put to rest.
5...
6. Per contra, Mr.C.Munuswamy, learned Special Government Pleader would submit that in compliance of the order of interim direction dated 09.04.2019 in W.A.(MD) Nos. 76, 225, 341 of 2019, 1612, 1076, 1093, 1461, 1473 and 1531 of 2018, the 4th Respondent had passed G.O.(Ms.)No. 165 School Education Department, Dated 17.09.2019 giving guidelines for utilizing the services of surplus teachers in Aided Minority Schools, Non-Minority Schools, Primary Schools, High Schools and Higher Secondary Schools and the said order was put to challenge in W.A(MD) No. 76 of 2019 and the Division Bench of this Court had entertained the Writ Appeal and suspended the portion of the said Government Order until further orders, vide order dated 20.09.2019 and steps have also been taken to vacate the said interim orders.
7. A perusal of the information which has been placed before this Court and as made available by the concerned Department would disclose that there are very many surplus teachers available for 86/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch deployment and despite that recruitments are taking place and as a consequence, the Government is put to heavy financial burden.
8. In the light of the above facts and circumstances, the respondents 4 to 6 are directed to take immediate and necessary steps to deploy the surplus teachers in Government run Middle Schools and High Schools and till such deployment is completed, there cannot be any recruitment to the said post, until further orders. Since a comprehensive Writ Petition in the form of Public Interest Litigation has been filed, Registry after obtaining appropriate orders, tag W.A (MD) No. 76 of 2019 along with this writ petition."
70. The fixing of staff strength for the school followed by identification of the excess staff and the steps to be taken for redeploying such excess staff to a needy school are the perennial issue rallying the centre point of litigious area in almost every academic year in large numbers of private aided schools throughout the year.
71. In this context, in the written submissions made by the learned Senior counsel appearing on behalf of the institutions, they have stated that, the assessment of staff strength has to be made every year. According to them, in this regard, the following are the major causes of concern : 87/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch “(i) Assessment of staff-strength each year
(ii) Uncertainty in mode of assessment (school or standard)
(iii) Unit for assessment (Each school or cluster of schools)
(iv) Disregard of English medium students for assessment
(v) Lack of time-schedule in finalising staff-fixation
(vi) Department's prior permission for filling up vacancies
(vii) Department's approval of appointments for grant-in-aid."
72. Elaborating the said causes of concern, the learned counsel would indicate that, there is uncertainty in the mode of assessment especially in the context of whether the student strength should be reckoned school wise or standard wise and in this regard, they relied upon various orders passed by this Court. Insofar as the situation that is prevailing in respect of minority schools are concerned, it is slightly in a different footing. In this regard, they would contend that, there is no need to have school committee in minority schools and the educational agency itself can directly administer the school / schools according to its own scheme of administration. Here the theory of common management for several schools would be possible. 88/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
73. In this context, it is their further contention that, in the event of surplus Teacher in one school and there is vacancy in another school under the same management (Minority Institution), the department can permit the migration / redeployment of the said surplus staff by the management itself among their schools within a time frame. If the minority management does not adhere to the time frame, the Education Department could pass the orders redeploying the post / staff to the needy school.
74. It is also the concern of the schools that, there has been a disregard of English medium students for assessment. They would contend that, one of the medium of instruction permitted in the State from time to time is English. In private schools in the State offering studies in English medium with full grant-in-aid also, the entire students strength in English medium are taken into account for assessment of staff strength. The Government also had taken policy decision for introducing English medium in Government and Private schools in a phased manner and in this regard, the following G.Os are to be noted :
"1. GO.Ms.No.705 (School Education), dated 25.05.1990
2. GO.Ms.No.180 (School Education), dated 17.07.2012
3. GO.Ms.No.148 (School Education), dated 20.07.2018"89/145
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75. It is the further contention of the learned counsel for the Institutions that, the Act and the Rules made thereunder do not deal with the medium of instruction and there is neither any bar nor any different treatment contemplated under the Statute for English medium students.
76. In this context, they pointed out that, a decision of a Full Bench of this Court in Tamil Nadu Tamil & English Schools Association v. The State of Tamil Nadu, rep. by its Secretary to Government School Education Department reported in 2000 (2) CTC 344, wherein, it has been held that, the medium of instruction shall be the choice of the parents / children which is a Fundamental Right. Therefore non-inclusion of the students of English medium in the assessment of staff strength for the purpose of grant- in-aid is an indirect deprivation of the children's Fundamental Right, i.e., choice of medium of instruction. Therefore, they contented that, the Education Department should reckon the English medium students also into account while fixing the staff strength for the school, so that it would avoid discrimination on the ground of language, 90/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch particularly when the State of Tamil Nadu propounds the two language formula, where obviously English is one.
77. It is also the concern of the learned counsel appearing for the Institutions that, the job of fixing the staff strength, giving approval to the staff appointed in the vacancy within the sanctioned staff strength and also the assessment of excess staff in a particular school and thereafter permitting the Institution to redeploy the staff to a needy school if it is a corporate management within their domain or otherwise to redeploy the excess staff from the school where it has become excess to any other needy school in the nearby locality, not necessarily to be under the same management, are all to be undertaken by the Education Department / State. In all these schedule of action, the authorities in the Education Department at Educational District or Revenue District level are taking much time and because of which, the very academic year itself would come almost to an end, thereby, the excess teacher so identified unnecessarily being paid the salary and the needy school with lack of staff strength had to conduct the whole academic year imparting education to the children in that needy school.
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78. By making these submissions, the learned counsel appearing for the Institutions have given the following proposal for schedule to be strictly adhered to or to be followed :
"1. Admission closing date : 31.07.00
2. Finalisation of student-strength : 01.08.00
3. School's information to Department : 10.08.00
4. Provisional staff-fixation by Department : 31.08.00
5. Petition in case of wrong calculation : 07.09.00
6. Rectification / Rejection by Department : 15.09.00
7. Instruction to school for re-deployment (In cases of cluster of Minority schools) : 30.09.00
8. Department's order for re-deployment (In cases of other schools) : 30.09.00”
79. The next concern as projected by the learned counsel appearing for the Institutions is that, in number of cases prior permission for filling up the vacancies of teaching staff being insisted by the Education Department and in this regard, except what has been contemplated under Rule 15(4) (3)(b) &
(c), in no other occasion, such an insistment can be made by the Education Department requiring the schools or its management to fill up the vacancy 92/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch within the sanctioned strength after getting prior permission from the Education Department.
80. In this context, the learned counsel quoted the following two decisions of this Court, where, the insistment of prior permission was held to be not mandatory if such school or management are minority running institution / management.
"Francis Edward v. Government of Tamil Nadu, rep. by its Secretary to Government, Higher Education Department, Fort St.George, Chennai 600 009, 2009 (7) MLJ 527.
P.Ravichandran v. State of Tamil Nadu, rep. by Secretary to Government, Department of Higher Education, Fort St. George, Chennai and others, 2013 (7) MLJ 641.
81. By making these submissions, the learned Senior counsel and other counsel appearing for the Institutions would contend that, if the school being the unit as agreed by both sides, based on which, staff strength for 93/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch each of the school shall be fixed on or before a particular date of every academic year by the concerned Educational authorities. Once such staff strength is fixed ofcourse by following the teacher-pupil ratio as per the earlier Government Order, i.e., G.O.Ms.No.525 as has been upheld and interpreted by the Full Bench Judgment in Vigila's case or under RTE Act and G.O.Ms.No.231, which was issued based on the prescription made in the schedule given under the RTE Act. The teacher-pupil ratio should be fixed either as 1:30 or 1:35 as the case may be and accordingly the necessary staff strength shall be fixed by taking into account the aforesaid Judgments and the Gos as well as the provisions of the RTE Act.
82. They would also contend that, once the staff strength is fixed, the Educational authorities can easily find out the excess staff in a particular school and if they found any excess staff, within a shortest span of time such excess staff shall be identified and to be intimated to the school concerned, where such excess staff are found, for redeploying them to a needy school.
83. In this context, they contend that, if the school is run by a corporate 94/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch management, in other words, the management of the school is already running more than one school or several schools, then within the schools run by the same management / corporate management, the excess teacher found out or identified shall be redeployed to a needy school run by the very same management and this kind of exercise can very well be undertaken by the Education Department within a shortest span of time.
84. After exhausting the redeployment process among the schools run by the corporate management or same management then only if still found any excess staff in any of the school run by the same management, those teachers also can be redeployed to a needy school of any other management in the same Educational District or Revenue District as the case may be and still few more excess teachers are available in the particular academic year, they can be redeployed to a far of school, where, there must be an actual need, of course after getting the consent of the teacher concerned, which can be made through a counselling in the District level.
85. In this context, they would further submit that, while identifying the excess staff, care shall be taken to identify the junior most teacher who 95/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch should be subjected to such redeployment and in this regard, care also shall be taken to confirm that required teacher in a given subject, in respect of high and higher secondary school, in view of the change in curriculum where subject wise teacher is required, are available. Therefore merely because some teachers are found to be excess by taking the over all teacher- pupil ratio in that school, those teachers of a particular subject, merely because he or she being junior, shall not be redeployed, unless it is ensured that, the school from where such redeployment is made is having the minimum required teachers in subject wise if it is high or higher secondary school.
86. All these submissions have been made by the learned counsel appearing for the Institutions, apart from the detailed submissions made and suggestions given in writing on behalf of the State, by the learned Advocate General.
87. We have given our anxious consideration to those submissions made on the very ticklish issue of fixation of staff strength, identification and redeployment of excess staff to the needy school and for fixing a compendium of schedule for undertaking the aforesaid job and by which 96/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch authority the same shall be undertaken.
88. In this context, we have already recorded the consensus reached between the parties that school shall be the unit and it is not an educational agency, management or corporate management or joint management will be the unit for the purpose of fixing the staff strength for the school concerned. Once such a staff strength is fixed in a particular academic year on or before a particular date, where if there is any lack of staff, that school shall be treated as a needy school, to which, the required teaching staff either can be deployed from the excess staff or the school which is in need of the staff shall be permitted to fill up the post.
89. Once the school is found to be having excess staff such excess staff strength shall be identified and accordingly, the procedure that has been discussed above, as projected by both sides, can be adopted for redeployment of such excess teachers to the needy school.
90. In order to complete this task of fixing the staff strength, identifying the excess staff and redeployment of excess staff to the needy school in a particular academic year is concerned, certainly a compendium 97/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch of schedule is required to be adopted and once such compendium of schedule is adopted, the same shall be strictly followed and adhered to both by the Education Department as well as the management / institution / schools concerned. In fact both sides have consented to frame a compendium of schedule by this Court.
91. Medium of Instruction - Impact on staff strength :
91.1. Even at the beginning, we have indicated that, yet another important issue had arisen for consideration in this batch of cases before us, which was the language policy to be adopted in the schools run by the Government as well as the private schools with aid. On this issue, we raised certain queries in our order, dated 05.08.2020, which we have already quoted in earlier part of this Judgment. In response to the said queries, the State Government / Education Department has given its response.
91.2. The learned Advocate General on the query with regard to the language formula, medium of instructions, has contented that, the State Legislature already has enacted the law, called, the Tamil Nadu Tamil Learning Act, 2006 (hereinafter referred to as “Tamil Learning Act”).98/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch Relying upon various provisions of the said Act, the learned Advocate General would submit that, in view of the provisions contained in the said Act, Tamil shall be the compulsory language being taught in all schools in standard 1 to 10 in a phased manner.
91.3. In this context, the learned Advocate General has relied upon the following provisions of Tamil Learning Act :
"3. Tamil as subject - (1) Tamil shall be taught as a subject in standards I to X in all schools, in a phased manner, commencing from the academic year 2006-2007 for standards I, from the academic year 2007- 2008 for standards I and II and shall be extended upto X standard in a like manner. (2) For the purpose of sub-section (1), the pattern of education shall be as follows:
Part I Tamil (Compulsory) Part II English (Compulsory) Part III Other Subjects (Mathematics, Science, Social Science, etc.) Part IV Students who do not have either Tamil or English as their mother tongue can study their mother tongue as an optional subject.
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5. Exemption - The Government may, subject to such conditions as they deem fit, by general or special order, exempt any class or category of student or students from all or any of the provisions of this Act either in part or in whole."
91.4. By relying upon these provisions of the Tamil Learning Act, the learned Advocate General would submit that, the policy of the Government is two language formula, i.e., first language is Tamil and second language is English and both are compulsorily to be taught in all the schools in the State from standard 1 to 10. However, under section 5 of the Act, the Government can exempt any class or category of student or students from all or any of the provisions of the Act either in part or in whole.
91.5. The learned Advocate General would further submit that, in this regard at some point of time litigation had come, exemption had been given on case to case basis or year wise to a set of students whose mother tongue is other than Tamil. However, the learned Advocate General would also submit that, insofar as the language policy being adopted in the schools 100/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch are concerned in the State of Tamil Nadu, the stand of the State Government has been again and again reiterated that it will adopt only two language formula, that means, Tamil and English are compulsory subjects and the medium of instruction would be either in Tamil or in English.
91.6. In this context, it is to be noted that, the Government had issued G.O.Ms.No.705, Education (D1) Department, dated 25.05.1990. Under the said G.O.Ms.No.705, the State Government had permitted the private recognised aided institutions for opening of English medium section. The salient features of the said G.O. reads thus :
"3.The Government have examined the suggestions of the Director of School Education and pass the following orders in respect of schools having English Medium section.
(i)The aided schools which desire to open New English Medium Sections from VI std. to X std. shall apply to the Government through the concerned authorities after fulfilling the basic conditions such as infrastructure and basic amenities for opening of such English Section putting forth the reasons thereof in detail. The Director of School Education shall send all such proposals to the Government with his 101/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch recommendation after getting reports of local officers on the availability of infrastructural facilities, etc.
(ii)All schools which desire to open English medium sections must open them only as new sections and the existing Tamil Medium sections in the schools should not be allowed to be converted as English Medium Section or closed. There should be no reduction in strength in Tamil medium Section.
(iii) Those schools which desire to open new English Medium sections from VI Std. to X Std. should have the necessary basic infrastructure facilities and amenities to accommodate new English Medium section.
(iv)All schools which desire to open English medium sections from VI Std. to X Std. must have at least one Tamil Medium Section in each std from VI std. to X std.
(v)The existing system of fees collection mentioned in para 1 above will be adopted till the end of the academic year 1989-90 only.
(vi)The following rates of fees shall be collected from all English medium students in all the schools from the academic year 1990-91.
a)Rs.30/- (Rupees Thirty only) per month, per students, in VI, VII and VIII Std.102/145
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b) Rs.40/- (Rupees forty only) per month, per students, in IX and X std.
c)Rs.50/- (Rupees fifty only) per month, per students in XI and XII std. It is made clear that from 1990-91 fees shall be collected from all the students of both newly created English Medium Sections and students studying in the already existing English medium section. Consent of the students and parents /guardians to come under fee levying system may be obtained. Fee concessions will be given to SC/ST students as per the existing rules / orders.
(vii) The fees so collected from the students studying in the English Medium sections after obtaining their willingness should be remitted into government account promptly and account for the same should be maintained properly for auditing purposes.
(viii)All such English medium sections which are already in existence or to be opened must not have more than 75 students in each section at any cost.
(ix)Those schools which desire to open new English medium sections as per the Government orders and which want to have additional teachers posts should obtain orders from the Government for sanctions of the posts.
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(x) The posts so sanctioned by the government should be filled up only after following the usual procedure and orders in vogue.
(xi) The government will pass suitable orders in the matter on merits of each case after considering the recommendations of the Director of School Education.
4.The government consider that the powers of granting permission to allow aided schools to open English section shall continue to be vested in the Government.
5.This order issues with the concurrence of Finance Department, vide its U.O.No.55385/Edn.11/90-1, dated 18.05.1990.
(By order of the Governor)"
91.7. In the year 2012, the Government issued another Government Order in G.O.Ms.No.180, School Education Department, dated 17.07.2012. Under the G.O., the Government had permitted the panchayat union primary and middle schools as well as High and Higher secondary schools to start two sections of English medium from standard 1 to 6 in each of such selected schools. The import of the said Government Order 104/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch G.O.Ms.No.180 reads thus :
"Miz khz;g[kpF gs;spf; fy;tp. tpisahl;L kw;Wk; ,is"h; eyj;Jiw mikr;rh;
mth;fs; 18/04/2012 md;W eilbgw;w gs;spf; fy;tpj; Jiw khdpaf; nfhhpf;ifapd; nghJ fPH;f;fhQqk; mwptpg;gpid btspapl;Ls;shh;fs;/ "jw;nghija fy;tpj; jpl;lj;jpd;
mog;gilapy; khzth;fspd; vjph;fhy
thH;tpw;F M';fpy tHpf;
fy;tp ,d;wpaikahjjhf cs;sjhy;. Cufg;
gFjpapy; mike;Js;s muRg; gs;spfspy;
gapYk; khzth;fspd; M';fpy bkhHpj; jpwid nkk;gLj;Jk; tifapy; tUk; fy;tpahz;L 'Kjy; Cuhl;rp xd;wpa bjhlf;f kw;Wk;
eLepiyg;gs;sp / cah;epiy / nky;epiyg;
gs;spfspy; xd;W kw;Wk; Mwhk; tFg;gpy;
jyh ,uz;L M';fpy tHp ,izg;gphpt[fs;
bjhl';fg;gl;L gog;goahf 12k; tFg;g[ tiu M';fpy tHp ,izg;gphpt[fs; elj;jg;gLk;/ Kjw;fl;lkhf 2012-2013 Mk; fy;tpahz;oy; xt;bthU khtl;lj;jpYk; 10 Cuhl;rp xd;wpa bjhlf;f kw;Wk; eLepiyg; gs;spfs; / muR cah;epiy / nky;epiyg; gs;spfs; tPjk; 320 gs;spfspy; 22.400 khzth;fs; gad;bgWk;
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tifapy; xd;W kw;Wk; Mwhk; tFg;gpy;
jyh ,uz;L M';fpy tHp ,izg;gphpt[fs;
bjhl';fg;gLk;/
2/ nkw;fhz; mwptpg;gpid
eilKiwg;gLj;JtJ bjhlh;ghf chpa
fUj;JUtpid murpd; ghprPyidf;fhf
gs;spf; fy;tp ,af;Feh; / bjhlf;ff;
fy;tp ,af;Feh; Mfpnahh;
gupe;Jiuj;Js;sdh;/
3/ gs;spf; fy;tp ,af;Feh; / bjhlf;ff;
fy;tp ,af;Feh; Mfpnahhpd; fUj;Jf;fis
muR ftdKld; ghprPyid bra;J
khzth;fspd; M';fpy bkhHpj; jpwid
nkk;gLj;Jk; tifapy; Kjw;fl;lkhf
2012-2013 Mk; fy;tpahz;oy; xt;bthU
khtl;lj;jpYk; 10 Cuhl;rp xd;wpa bjhlf;f kw;Wk; eLepiyg; gs;spfs; / muR cah;epiy / nky;epiyg; gs;spfs; tPjk; (3 Cuhl;rp xd;wpa bjhlf;fg; gs;spfs;. 2 Cuhl;rp xd;wpa eLepiyg; gs;spfs; kw;Wk; 5 muR cah;epiy / nky;epiyg; gs;spfs;) 320 gs;spfspy; 22.400 khzth;fs; gad;bgWk; tifapy; xd;W kw;Wk;
Mwhk; tFg;gpy; jyh ,uz;L M';fpy
tHp ,izg;gphpt[fs; bjhl';f mDkjp
mspj;J Miz btspapLfpwJ/
(MSehpd; Mizg;go)"
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91.8. In view of the said policy decision taken by the State Government to permit both the Government schools as well as the private aided schools to open English medium sections, care shall be taken to ensure that, adequate staff are employed in the schools to impart education in English medium also.
91.9. In this context, it is the stand of the Government that, within the already sanctioned staff strength, in other words, within the already permitted sections, at the maximum of 50% alone shall be permitted to open the English medium sections and the remaining 50% shall be retained as Tamil medium sections and the already sanctioned staff for the 50% shall be utilised for the English medium sections, thereby without seeking for any additional staff strength for opening English medium sections such English medium sections can be opened.
91.10. In this context, it is to be noted that, as we discussed elaborately in the earlier paras, after the RTE Act came into effect with effect from 2010, atleast from the academic year 2010-11 whatever the 107/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch schools as on the academic year 1991-92 which had been functioning in the State with recognition and aid with Tamil medium classes since they have been permitted to start the English medium courses by G.O.Ms.No.705, dated 25.05.1990, the teaching staff required for imparting education in English medium sections shall also be taken into account, atleast for the primary / elementary education level, i.e., for the students between the age of 6 and 14. Those students who had been admitted between the age of 6 and 14 shall have the Fundamental right to get free and compulsory education irrespective of the medium of instruction.
91.11. Therefore in this context, the State Government neither can say that only for imparting education in Tamil medium or only for the imparting of education in English medium within the already sanctioned strength date back to the academic year 1991-92 alone, that kind of staff strength would be permitted to continue and aid would be granted. Nor the State Government can say that beyond the academic year 2010-11 also, such kind of required staff for imparting education either in Tamil medium or in English medium by expanding sections depending upon the need of a particular school, cannot be enhanced or increased, for which the teaching 108/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch grant cannot be granted.
91.12. If that kind of stand taken by the Government is accepted, again it would be detrimental or would run contra to the aim and object of the provisions of the RTE Act.
91.13. Therefore, based on the policy of the State Government to have two language formula in this State and permitting the institutions run by the Government as well as private with aid to open English medium sections also and accordingly, many number of schools have already opened English medium sections and are imparting education in English as a medium of instruction, those students also, if they are in between the age of 6 and 14, shall be protected with free and compulsory education, for which, whatever be the staff requirement shall be enhanced and whatever be the staff strength shall also be sanctioned by the State Government especially after the provisions of the RTE Act came into effect, i.e., from 2010-11.
92. Comprehensive Legislation :
92.1. It is also one of the issue raised in this batch of cases, 109/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch where, we posed the query to the State Government through the learned Advocate General that, in order to administer the service issues, apart from the regular establishment and administrative issues of the private schools in this State, instead of having Gos, instructions and regulations regime, whether the Government will have a comprehensive legislation with rules, covering all these issues under one umbrella legislation. Answering the said query, the learned Advocate General has brought to the notice of this Court that the State legislated an Act called the Tamil Nadu Private Schools (Regulation) Act, 2018 [Tamil Nadu Act 35 of 2019] which infact received the accent of the President on 07.08.2019.
92.2. By making the said submissions, the learned Advocate General has produced a copy of the said Act for our perusal and would further submit that, the work of framing the rules under the said Act is yet to be completed, therefore once the rules are framed, the Act as well as the rules would be brought into effect.
92.3. Since the comprehensive legislation, according to the State Government, having been made by passing the Act called the Tamil Nadu Private Schools (Regulation) Act, 2018 (in short "2018 Act"), in order to 110/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch understand the salient features of the said Act, we have noted the following provisions in the said Act :
"PERMISSION AND REGISTRATION TO
ESTABLISH AND RECOGNITION TO
ADMINISTER PRIVATE SCHOOLS.
3. (1) No private school shall be established and administered otherwise than in accordance with the provisions of this Act and the rules made thereunder. Power to regulate school education.
(2) The Government or any competent authority as may be prescribed in this behalf, shall have power to,—
(a) regulate the different stages of education and courses of instruction including curriculum, syllabus in private schools;
(b) permit an educational agency to establish and administer a school in accordance with the conditions as may be prescribed;
(c) grant recognition to any private school;
(d) withdraw the recognition of any private school or impose penalty or take criminal action against such private school if it contravenes any of the provisions 111/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch of this Act and the rules made thereunder;
(e) specify from time to time the norms or guidelines for safety and security of the pupil;
(f) regulate the admissions, collection of fees and conduct of examinations;
(g) prescribe the minimum qualification of the staff;
(h) prescribe certain books or published materials or electronic materials that threaten the sovereignty, communal harmony and secular nature of the Nation and that are found inappropriate as per the moral and cultural standards of the Nation and have an undesired impact on the psyche of the pupil by any private school;
(i) take such other action as may be deemed necessary and expedient in the interest of the pupil and the school education.
4. No educational agency shall, without prior permission in writing of the competent authority and except in accordance with the terms and conditions specified in such permission, establish any private school.
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9. No educational agency, shall without getting certificate of recognition of the competent authority under section 8, apply for affiliation to the State Board of School Education or any other Board. ...
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SPECIAL PROVISIONS FOR MINORITY
PRIVATE SCHOOLS.
16. (1) Any educational agency belonging to religious or linguistic minority shall have the right to establish and administer a private school of its choice primarily for the benefit of such minorities. (2) Every such educational agency claiming minority status for a private school shall apply to the Government in such form along with such documents as may be prescribed. (3) On receipt of the application under sub-section (2), the Government after verifying the documents submitted by the applicant and after affording the applicant an opportunity of being heard, if need be, shall decide whether or not to grant or continue minority status to the private school within such time as may be prescribed.
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17. The minority status of a private school shall be retained only where the management of such private school has been transferred to another educational agency of the same minority with the prior approval of the Government.
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APPOINTMENT OF STAFF AND THEIR CONDITIONS OF SERVICE.
32. (1) Subject to the provisions of this Act and the rules made thereunder, the school committee of a private school may appoint such staff as may be considered necessary for the efficient functioning of the school.
(2) The qualifications and the strength of the staff of the private school shall be such as may be prescribed: Provided that the qualifications prescribed under this sub-section shall not apply to any person who, on or before the date of commencement of this Act has been employed in any private school whose appointment has been made in accordance with the qualifications in vogue at the time of such 114/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch appointment.
(3) The salary and allowances shall be truly reflected in the expenditure statement towards salary and other allowances of the staff submitted by such school to the Fee Determination Committee constituted under the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009. (4) The pay and allowances of the staff of every private school shall be paid on or before such date of every month and in such manner as may be prescribed.
(5) Every private school shall enter into an agreement with its staff with regard to the terms and conditions of service as may be prescribed. Provided that, where no agreement of service has been entered into with the staff already in service on the date of commencement of this Act, such agreement of service shall be executed within a period of six months from the date of commencement of this Act.
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35. (1) The Government may prescribe the mode 115/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch of appointment, cadre strength and conditions of service including promotion, pay, allowances, leave, pension, gratuity, provident fund, insurance and disciplinary matters of the staff of any school which is receiving aid from the Government.
(2) No process of recruitment of teaching and non teaching staff of any aided school shall be initiated without the prior permission of the competent authority.
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37. Notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court or other authority, no grant shall be payable to,—
(a) any private school established and any class, or course or medium of instruction opened in such private school, on or after the date of commencement of the academic year 1991 – 1992;
(b) any private school in existence on the date of commencement of the academic year 1991 – 1992 to which no grant has been paid by the Government immediately before the date of such commencement;
(c) any class or course or medium of instruction in a private school in existence on the date of commencement of the academic year 1991 – 1992 to 116/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch which no grant has been paid by the Government immediately before the date of such commencement; and
(d) any class or course or medium of instruction opened on or after the date of commencement of the academic year 1991 – 1992 in a private school in existence on the date of such commencement.
Explanation.—For the purposes of this section, private school includes a minority school.
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57. (1) The Government may make rules to carry out the purposes of this Act. Power to make rules. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— .................
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58. The Government may, by notification and for reasons to be specified therein, exempt any private school from the operation of all or any of the provisions of this Act, or the rules made thereunder, 117/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch subject to such conditions as they may deem fit and may in the like manner vary or cancel such exemption."
92.4. Though the said Act has been legislated and has been given the accent of the President, in view of the rules which are yet to be made, the Government has not fixed the notified date under Section 1(4) of the Act.
92.5. Therefore it is to be noted that, though a comprehensive legislation as claimed by the State Government, having been enacted, it is yet to be brought to the effect for want of framing the rules and the said job of framing the rules is on, according to the learned Advocate General.
92.6. We have quoted certain provisions of the 2018 Act, only for the purpose of discussion and therefore, it shall not be construed that, we have approved the various provisions contained in the said Act, 2018.
92.7. In order to replace the set of directions including the 118/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch compendium of schedule that, we propose to give in the order, a suitable and effective rule to be framed under the said 2018 Act and the said job of framing the rule, according to the learned Advocate General, is yet to be completed. Therefore, while framing the rules, the framers of the rule shall borne in mind the discussions we have made in this order and also the conclusion reached by us on various issues including the set of directions and compendium of schedule we are providing herein.
92.8. We are in hope and trust that, in the rule to be framed, all these issues which have arisen for consideration in this batch of cases, where we have discussed and have given our views, would be taken care of and accordingly, a full fledged and exhaustive rules addressing all these issues would be framed and that shall be ensured by the authorities concerned.
92.9. Therefore we deem it appropriate that, till the comprehensive legislation is given effect to or comes into effect with relevant rules, the comprehensive directions which we are proposed to issue in this batch of cases including the compendium of schedule can be utilised 119/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch for the purpose of sorting out the issues, which have been discussed herein above.
93. Validity of G.O.Ms.No.165, School Education [Tho.Ka.2(1)] Department, dated 17.09.2019 :
93.1. As we discussed in the earlier part of this order, as a fall out of the interim order passed by a Division Bench of this Court in this batch of cases by order, dated 09.04.2019, the Government thought of issuing a Government Order, that is how G.O.Ms.No.165 has been issued, where, various conditions have been imposed with regard to the staff fixation, identification of the excess staff and redeployment of such excess staff to the needy schools.
93.2. In fact a prohibition has been imposed under the said G.O that unless and until the total teaching staff which are found to be excess, as has been identified already, are exhausted by way of redeployment to needy school, no teacher appointment shall be made in any private aided school in this State especially in corporate management schools.120/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 93.3. Though arguments were advanced by almost all the learned counsel appearing for the Institutions on the validity of G.O.Ms.No.165, in none of these cases, except in the following two writ petitions, directly the G.O.Ms.No.165 was under challenge.
93.4. In W.P.(MD).No.11851 of 2020, the G.O has been put under challenge, where the prayer reads thus :
“to issue a writ, order or direction in the nature of a writ of certiorarified mandamus calling for the records relating to the impugned Government Orders issued by the 1st respondent State Government in G.O.Ms.No.165, School Education (Tho.Ka.2(1) Department, dated 17.09.2019 and the consequential proceedings by the third respondent District Educational Officer in Na.Ka.No.2099/A4/2020, dated 00.08.2020 (signed on 19.08.2020) denying the approval of BT Assistant (Tamil), quash the same and further direct the second respondent CEO to approve the appointment of Thiru.C.Leo Gandhi as BT Assistant (Tamil) w.e.f. 01.11.2019 in the petitioner-school...” 121/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 93.5. In W.P.(MD).No.9918 of 2020 also, similar prayer has been sought for.
93.6. Therefore it has become a dire necessity to deal with the validity of the said G.O also in this batch of cases.
93.7. In this regard, we like to point out that, already the import of the interim order passed by a Division Bench of this court in this batch of cases on 09.04.2019 has been quoted fully. Only pursuant to the said interim order, dated 09.04.2019, this G.O.Ms.No.165 was issued, however, subsequently, when the same batch of cases came up before yet another Division Bench of this Court on 20.09.2019, the import of G.O.Ms.No.165 was considered and the Division Bench, on that date, had passed an order, whereby, it expressed prima facie view that, the directions issued by earlier order, date 09.04.2019 was beyond the scope of the writ appeals. Therefore the Division Bench was of the opinion that, the operation of the G.O.Ms.No. 165, dated 17.09.2019 shall be suspended, accordingly, the operation was suspended until further orders.122/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 93.8. After having gone through the two interim orders passed by two Co-ordinate Division Benches in this batch of cases, one is dated 09.04.2019 and another is dated 20.09.2019, in between G.O.Ms.No.165 was issued on 17.09.2019, we are of the considered view that, the said G.O.Ms.No.165 ought not to have been issued as a fall out of the interim order passed by this Court. Therefore we are in agreement with the view expressed by a Co-ordinate Bench of this Court by order, dated 20.09.2019, that the said G.O is a fall out of the interim direction issued in the batch of writ appeals, therefore the operation of the said G.O shall be suspended until further orders.
93.9. In that view of the matter and the comprehensive decision since having been arrived at by us in this batch of cases, the said G.O.Ms.No.165, in our considered view, can very well be declared to be inoperative.
94. Conclusive Discussions :
94.1. If we have the over all view of the aforesaid factual matrix and discussion made exhaustively on the core issues as well as peripheral 123/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch issues arisen in this batch of cases for decision, we can divide the same in three broad categories. They are :
(i) Fixation of staff strength, identification and redeployment of excess teachers to the needy schools, the mode of such activities and the compendium of schedule for the same;
(ii) Right of the private aided institutions including the minority run institutions to have both Tamil and English medium sections and the right of the students to get free and compulsory education in both mediums according to their choice and in that case, the necessity of having enough or adequate staff strength based on the teacher-pupil ratio and accordingly, the staff grant to be made by the State Government for such Tamil / English medium sections, especially in the context of the provisions of the RTE Act, i.e., from the academic year 2010-11; and
(iii) Till the comprehensive legislation, namely, Tamil Nadu Private Schools (Regulation) Act, 2018 and the Rules to be made in this regard comes into effect, whether a set of mandatory directions to be issued in this batch of cases, including compendium of schedule, can stay for utility.124/145
http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 94.2. Insofar as the first category of issue is concerned, we have already discussed those issues at length and have expressed our view, accordingly, the school shall be the unit and not the educational agency for fixing the staff strength, based on which, every year, staff strength based on the teacher-pupil ratio shall be fixed on or before a particular date by the Educational authorities followed by identification of excess teaching staff in every such school and once excess teaching staff are identified, those excess staff shall be redeployed to needy school under the same management or different managements, as the case may be. In this context, a strict time schedule shall be followed, both by the Education Department as well as the Institutions and its managements and there shall be no deviation of such compendium of schedule, which we propose to prescribe in this Order.
94.3. Insofar as the second category of issue is concerned, no doubt, by virtue of Section 14A of the Tamil Nadu Private Schools (Regulation) Act, 1973, the Institution / School which did not get aid at the time of or immediately before the academic year 1991-92 may not be entitled for such grant after 1991-92. However if schools which were 125/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch getting aid from the Government for teaching and non-teaching staff either at the time of or just before the commencement of the academic year 1991-92 shall continue to receive the teaching aid subject to the fixation of staff strength in every academic year. In those schools which are getting aid continuously even beyond 1991-92, in case of any additional class or sections are opened, on need basis, because of the enhancement of admissions in the school concerned, even those additional standard or additional section shall not be entitled to get teaching grant.
94.4. However, in respect of this category of schools who did receive aid in 1991-92 and subsequently opened additional standard or additional class and not received the aid by virtue of Section 14A of the Act referred to above, those schools whether can continue to be in the same status even beyond 2010-11 in view of the provisions of the RTE Act?
94.5. In order to answer the said question, we answered in favour of the schools in our discussions made in the earlier paras of this order, accordingly, we deem it to hold that, the private aided schools both minority and non-minority which were established and run with aid either at the time 126/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch or before commencement of academic year 1991-92, though had not received aid for the additional standards or sections opened subsequent to 1991-92, are entitled to get such aid for teaching grant for such additional required staff for additional standard or class opened in such school after the RTE Act came into effect, i.e., from academic year 2010-11, for students of the age of 6 to 14 years only.
94.6. However, we are conscious of the effect of the aforesaid as those Institutions may claim such teaching grant retrospectively from 2010-11. Therefore, we make it clear that, those Institutions shall not be entitled to collect any arrear of staff grant for such additional staff for the purpose of additional section or standard opened after 2010-11 in an aided school as on 1991-92. However, they shall be entitled to get such staff grant for additional staff for the purpose of additional class or additional section only from the academic year 2021-22.
94.7. For the purpose of compendium of schedule to undertake the exercise of fixing the staff strength based on the pupil strength in a particular academic year, identification of excess staff and the process of completing the redeployment of excess teacher to the needy school, we propose to provide a compendium of schedule in the operative portion of 127/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch this order, which shall be strictly followed and adhered to until a comprehensive rules to be framed in the 2018 Act referred to above comes into force.
95. In view of the aforesaid discussions, we are inclined to pass the following orders in this batch of cases :
"(a) For the purpose of fixing the students-teacher ratio, the provisions of RTE Act followed by the G.O. passed in this regard shall be taken as the basis and the student pupil ratio shall be either 1:30 or 1:35 as the case may be as per the provisions of RTE Act.
(b) For the purpose of fixing the staff strength of a school, school shall be the unit and not the Educational agency / joint management / corporate management.
(c) Once the staff strength is fixed in a particular academic year of a school, it is the duty of the Educational authorities to identify the excess staff and once the excess staff are identified, the same shall be intimated to the school concerned as per the compendium of schedule and thereafter, take steps to redeploy those excess staff to the needy school.128/145
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(d) Once the excess staff are identified and after keeping the Institution intimated, if those excess staff are redeployed to the needy school within a stipulated time as per the compendium of schedule, the redeployed staff shall join duty in the redeployed school.
(e) The following compendium of schedule, for the aforesaid purpose, i.e., for fixing the teaching staff, identifying the excess teaching staff and to redeploy the identified excess teaching staff to the needy school, are framed as hereunder.
(f) COMPENDIUM OF SCHEDULE :
(i) Closing of Admission for the purpose of fixation of staff strength - 31st July of that academic year.
(ii) Fixation of staff strength of the school concerned, based on the student strength as on 31st July as per the strength of the pupil updated in the EMIS - 10th August.
(iii) The aforesaid fixation of staff strength of the school shall be intimated to the school on or before 15th August.129/145
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(iv) On receipt of information from the Department, the School concerned shall give its objection if any, based on the teacher-pupil ratio on such fixation of staff strength by 25th of August.
(v) On receipt of such objection, if any, from the school concerned, the final order of fixing the staff strength of the school, with the provisional order for identification and redeployment of excess staff shall be passed by the Department by 5th of September.
(vi) On receipt of such intimation of provisional order on identification and redeployment of excess staff, the school under corporate or joint management, shall act upon to give its consent to the redeployment of excess teacher concerned after keeping the teacher informed, to the Department, by 15th of September.
(vii) On receipt of such reply / intimation from the school concerned, final redeployment order shall be made and communicated to the school from where redeployment is made with a copy marked to the 130/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch teacher concerned and also to the needy school to which the deployment is to be made, by 25th September.
(viii) On receipt of such orders by the teachers who are redeployed, they shall report to the school where they have been redeployed, on or before 30th September.
(ix) After making this redeployment process, still excess staff are available, the Education Department shall take further effort, and those excess teachers still available at the hands of the Education Department to be redeployed to a needy school beyond the corporate management concerned, i.e., to any school located in the same Educational District or Revenue District and even beyond which if still excess staff are available, they can be redeployed to any school beyond the Revenue District of course after getting the choice of such teacher concerned and that shall be completed by 10th October.
(x) Those teachers who got such 131/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch redeployment within the Revenue District or beyond the Revenue District by orders to be issued on or before 10th of October, shall report duty to the School where they have been redeployed on or before 15th of October.
(xi) It is made clear that beyond 15th October of every academic year, no redeployment of teacher shall be made or given effect to.
(g) Once the teachers are redeployed from a particular school, after the joining time as provided under the compendium of schedule, the school from which the teacher has been redeployed cannot get teaching aid for the next month salary for that redeployed teacher and that salary shall be paid only through the school, where the teacher has been redeployed, for which, teaching grant shall be sent by the Educational authorities only to the needy school, where the teacher has already been redeployed.
(h) While identifying the excess staff for redeployment purpose as indicated above, regard has to be given that as far as possible junior most teacher shall be subjected to such redeployment. Also in case of high and higher 132/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch secondary schools, while making such redeployment based on teacher-pupil ratio, regard has to be given to ensure that, atleast the minimum required teacher, for each subject being taught in the school, are in possession.
(i) Insofar as the teaching grant for the additional staff employed in the already aided school as on the academic year 1991-92, irrespective of the medium of instructions or irrespective of the students strength, as per the teacher pupil ratio as indicated above especially in the context of RTE Act and subsequent G.O issued in this regard, the staff fixation shall be made and for those additional teaching staff, who are pressed into service for additional standard or additional class started, from the academic year 2021-22, staff grant shall be sanctioned by the State Government as such sanctioning of staff grant will be the essential requirement to meet the object of the provisions of the RTE Act, otherwise, the Fundamental Right guaranteed to the children between the age of 6 and 14 studying in those schools would get affected.
(j) Irrespective of the medium of instruction, whether Tamil or English, such a staff grant for additional sections or standard shall be provided with the same condition as indicated above from the academic year 2021-22. 133/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch
(k) The State Government shall ensure that, the provisions of the Tamil Nadu Tamil Learning Act, 2006 are implemented in letter and spirit, of course subject to the judicial orders / court orders, if any, passed in this regard for giving exemption to a group or class of students as provided under Section 5 of the said Act.
(l) Until the Tamil Nadu Private Schools (Regulation) Act, 2018 and the Rules to be made thereunder are given effect to, these set of directions issued in this order shall mandatorily be followed by the stakeholders, i.e., both State Government as well as the Educational Institutions.
(m) Once the 2018 Act and the Rules to be made in this regard comes into effect and the issues which are covered under this order as per these mandatory directions are taken care, these mandatory directions shall be ceased to be in execution.
(n) In order to give effect to such comprehensive legislation, i.e., 2018 Act, the work of framing necessary Rules under the Act shall be completed as early as possible.
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(o) In view of the aforesaid, the G.O.Ms.No.165, School Education [Tho.Ka.2(1)] Department, dated 17.09.2019 is hereby declared to be inoperative.
(p) In view of the statistics given by the communication of the Director of School Education and Director of Elementary Education, dated 28.10.2020, as the import of the same in entirety has already been quoted herein above, the Education Department shall take endeavour to identify the exact excess teaching staff in various category of Schools, i.e., Government schools (Panchayat Union, Municipality and Corporation) Primary and Middle Schools, Government aided primary and middle schools, Government High and Higher secondary schools and aided High and Higher Secondary Schools separately by taking into account the recent policy decision taken by the State Government, whereby the superannuation age of the Government servants including the teachers was enhanced from 59 to 60, thereby there would be no superannuation of teachers for the next one year and accordingly, the correct statistics shall be made ready within a period of two months.
(q) Once the statistics of excess teaching staff under various category of schools as referred to above are made by taking into account the superannuation age of teachers 135/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch as 60, such excess teaching staff identified in various category of schools with details of name of the school both Government as well as Private aided, shall be uploaded in the website / web portal of the School Education Department within the aforestated period of two months.
(r) Once such information are uploaded in the web portal by the Education Department, after verifying the same, the private aided schools, both minority and non-minority can point out any wrong information if given with regard to the identification of the excess teaching staff in the concerned school and such intimation or clarification can be given by the school concerned through the management to the DEO / CEO concerned within a period of one month thereafter.
(s) On receipt of such objections, information / clarification from the school concerned with regard to the alleged wrong information provided by the State Government / Education Department in the web portal as indicated above, the same shall be verified and rectified by the Education Department, within one month thereafter.
(t) This exercise shall be completed on or before 31st July 2021, so that the identification of excess staff and follow up action as indicated in the compendium of schedule 136/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch herein above can be undertaken and be followed strictly. (u) Till such excess teaching staff are identified under all category of schools as indicated above, no recruitment shall be made by the State Government / Education Department for the purpose of appointment of teachers under various categories like Secondary grade teacher, Graduate teacher, Post-Graduate teacher, Language teacher, Physical education teacher etc.,
(v) Like that insofar as aided minority institutions are concerned,if it is a stand alone institution, their right of appointing a teacher in a vacancy within the sanctioned strength for the academic year 2021-22 shall not be affected because of the identified excess teachers in other schools. At the same time, even if the school is a minority institution, however being administered by a joint management or corporate management, in respect of those schools, even though vacancy arose within the sanctioned strength of such school or schools under corporate management or joint management, those vacancies shall not be filled up unless the excess staff identified in all other schools under the same corporate or joint management are exhausted fully and only after exhausting the redeployment process on all excess 137/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch teachers identified in the group of schools under the same corporate management, they shall be free to make appointment afresh from open market in the vacancy if any still, within the sanctioned strength."
96. With these directions, all these writ appeals and writ petitions are disposed of. However, there shall be no order as to costs.
97. The Education Department, i.e., the Director of School Education as well as the Director of Elementary Education shall file a compliance report of the aforesaid directions, by the first week of November 2021.
98. Since the process of fixation of staff strength, identification of excess staff, redeployment of those excess staff to the needy school, grant of aid to the teaching staff etc., are the perennial work to be undertaken routinely in every academic year, this Court want to monitor the same so that unwanted and avoidable litigation in huge numbers can be avoided, so this Court, as and when required, want to issue continuous mandamus after evaluating the progress of implementation of the aforesaid directions and therefore for the said purpose and also to file the compliance report as indicated above, the Registry is directed to list these matters on 08.11.2021.
138/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch (M.S.N., J.) (R.S.K., J.) 31.03.2021 Index : Yes / No Speaking Order / Non-Speaking Order tsvn M.SATHYANARAYANAN, J and R.SURESH KUMAR, J tsvn Common Order in W.A.(MD).No.76 of 2019 etc., batch 139/145 http://www.judis.nic.in W.A.(MD).No.76 of 2019 etc., batch 31.03.2021 140/145 http://www.judis.nic.in