The Manager/Correspondent vs The State Of Tamil Nadu on 3 June, 2014

[Cites 23, Cited by 0]

Madras High Court

The Manager/Correspondent vs The State Of Tamil Nadu on 3 June, 2014

Bench: R.Mahadevan

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03.06.2014

CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN

W.P.(MD)No.12113 of 2011
and
M.P.(MD)No.1 of 2011

The Manager/Correspondent,
V.K.P.Higher Secondary School,
Colachel, Kanyakumari District.			: Petitioner
			
Vs.

1.The State of Tamil Nadu,
   Rep. by its Secretary,
   Department of School Education,
   Fort St. George,
   Chennai-600 009.

2.The Director of School Education,
   College Road, Chennai-600 006.

3.The Chief Educational Officer,
   Nagercoil, Kanyakumari District.

4.The District Educational Officer,
   Thuckalay, Kanyakumari District.		: Respondents	

PRAYER

Writ Petition is filed under Article 226 of the Constitution of India
for the issue of a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned proceedings issued by the fourth respondent District
Educational Officer vide O.Mu.No.4301/Aa2/2011, dated 24.08.2011 refusing
approval to the appointment of B.Gnana Chella Singh as Headmaster in the
petitioner's school, quash the same and further direct the District Educational
Officer, Thuckalay, to approve forthwith the appointment of B.Gnana Chella Singh
as Headmaster in the petitioner's school w.e.f. the date of appointment viz.,
01.06.2011 with salary and all attendant benefits.

!For Petitioner			: Mr.Isaac Mohanlal
For Respondents			: Mr.J.Gunaseelan Muthiah,
				  Government Advocate

**********
			
:ORDER

******* Challenge in this Writ Petition is to the order, dated 24.08.2011, in and by which, the fourth respondent refused to grant approval to the appointment of one B.Gnana Chella Singh, as Headmaster in the petitioner's School and the petitioner also sought for a direction to the fourth respondent to approve the appointment of the said person as Headmaster in the petitioner's school with effect from the date of his appointment viz., 01.06.2011 with salary and all other attendant benefits.

2. The case of the petitioner is that the petitioner's school viz., V.K.P. Higher Secondary School, Colachel, Kanyakumari District, is a recognised and aided private school and it is a Malayalam Linguistic Minority Educational Institution. The school was initially established as a Middle School in 1918. It was upgraded as a High School in 1949 and as Higher Secondary School in 1978. There are 49 teachers working in the said School. While so, the post of Headmaster fell vacant on 01.06.2011, on account of the retirement of the previous incumbent Thiru.P.Ravindaran, on 31.05.2011, thereby, the petitioner appointed one B.Gnana Chella Singh to the said post, who possessed B.Sc., (Zoology), B.Ed., M.A. (Political Science) and M.Ed., Degrees. He has been working as an approved B.T. Assistant in Science (Special Grade) in the school since 04.06.1984. The petitioner submitted a proposal to the fourth respondent on 27.07.2011 for the purpose of disbursement of grant-in-aid towards his salary. However, the fourth respondent refused to grant approval vide impugned order dated 24.08.2011. Challenging the same, the petitioner is before this Court.

3. The fourth respondent filed a counter-affidavit stating that the proposal to grant approval for appointment of B.Gnana Chella Singh, as Headmaster, was rejected on the ground that the said person was working only as a B.Ed., Grade teacher and not as a P.G. Assistant, since the feeder category for promotion to the post of Headmaster of a Higher Secondary School, is either a High School Headmaster or a Post Graduate Assistant. Apart from that, the fourth respondent also denied the averments made in the affidavit filed in support of the Writ Petition and justified the impugned order.

4. The learned counsel for the petitioner submits that the petitioner, being a Minority Institution, it is open to the petitioner to make appointment of teachers of its choice, provided such teacher appointed is well qualified, as per the rules framed under the Tamil Nadu Private Schools (Regulation) Act, 1973. According to the learned counsel, except in regulating financial aspect, as financed by the Government, including the audit of the amount and the manner by which the amount was spent, the Government has no power to interfere with the right of administration of the educational institutions, since such power has been given as fundamental right, under Article 30(1) of the Constitution of India. He further submits that the petitioner being a minority institution, the petitioner is vested with the power conferred under Article 30(1) of the Constitution of India and, therefore, the selection of one B.Gnana Chella Singh, as Headmaster, by the petitioner's school, cannot be said to be illegal. Therefore, the learned counsel wants to set aside the impugned order.

5. The learned counsel appearing for the petitioner, in support of his contention, relied on the following decisions:

(i) V.Kanickai v. Director of Education [2012(8) MLJ 417]

(ii) Eka Ratchagar Sabai Higher Sec. School v. K.Sumathi [2008(1) MLJ 322]

6. I have considered the above submissions and perused the records carefully.

7. In V.Kanickai's case cited supra, this Court, while considering the similar issue, has held in the following paragraphs, as follows:

"13. Insofar as the main contention of the learned counsel for the petitioner that Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974, contemplates certain methods for promotion in respect of aided schools, Rule 15(4) reads as follows:-

(4) (i) Promotion shall be made on ground of merit and ability, seniority being considered only when merit and ability are approximately equal.

(ii) Appointments to the various categories of teachers shall be made by the following methods:-

(i) Promotion from among the qualified teachers in that school

(ii) If no qualified and suitable candidate is available by method (i) above-

(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers

(b) Appointment of teachers from any other school;

(c) Direct recruitment.

In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary schools, Teachers' Training Institutions setting out the reasons for such Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule."

14. The Tamil Nadu Private Schools (Regulation) Act 1973 cannot be said to be not applicable to minority institutions as a whole. It is only some provisions which impinge upon the constitutional right given to the minority institution under Article 30(1) of the Constitution of India and it is those provisions which are not applicable to the minority institutions. Therefore, one cannot say that the entire provisions of The Tamil Nadu Private Schools (Regulation) Act 1973 as well as rules framed thereunder are not applicable to the minority institutions at all.

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18. Insofar as it relates to the protection of rights of the minority institutions to establish and administer the educational institutions, Article 30(1) of the Constitution of India, which is as follows makes it clear that in respect of establishing and administering the institution, the rights of minority is absolute.

"30. Right to minorities to establish and administer educational institutions- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."

19. Nature of the minority right came to be analysed in the hierarchy of judgment and ultimately, while holding that right of establishing and administering educational institutions for the minorities being a fundamental right, is absolute, various clarifications have been issued to the effect that if it relates to the uniform qualification of teachers to be appointed in such institutions and in the event of any other authority competent of imposing certain qualification, the requirement of certain qualification to be followed for teachers to be appointed cannot be said to offend the right of the minority institutions under Article 30(1) of the Constitution of India. Likewise, if the Government decides to have uniform standard in selecting the teachers, such restriction would not offend the rights conferred under Article 30(1) of the Constitution of India. It was in T.M.A.Pai Foundation's case cited supra, the Supreme Court has raised certain questions and answered the same. In Paragraph 161 of the judgment, the question that was raised in Question No.5-(a) relates to the applicability of the procedure and method of admission. It was answered that administration would not mean mal-administration and the procedure which can be followed by the minority is independent except that the same should be transparent and acceptable procedure. Again, under the same paragraph, while answering the question regarding the right of minority institutions to admit students as to whether any procedure laid down by the Government could be made applicable to the minority institutions, it was held that in respect of the minority institutions obtaining aid from the Government, the authority can always prescribe bylaw or regulation based on which admission should be made including the policy of reservation. It was also opined that to find out merit among the students, there can be either a common entrance test or counselling on the basis of entrance test conducted by the individual institutions. Likewise, Question No.5(c), which alone relates to the administration, as the entire judgment predominantly deals with the administration procedures as framed by the Supreme Court which is as follows:-

"Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principal including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

20. The answer given by the Hon'ble Apex Court insofar as it relates to the regulation of the Government regarding the promotion, employment of teachers including the post of principal etc., regulatory should be minimal in character and insofar as it relates it could be the administration of the management of the institution like the appointment of staff, teaching and non-teaching staff and there should not be any external controlling agency. For the better appreciation of the views expressed by the Supreme Court, it is relevant to extract the answer given in the said question, which is as follows:

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the mater of day-to- day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state, without interfering with the overall administrative control of the management over the staff. Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." (emphasis supplied)

21. While explaining about the scope of the minority institutions' right including Article 30(1) of the Constitution of India, it is narrated in clear terms that mere grant of monetary assistance does not give right to the State to deal with or prejudice the right of the minority institution conferred under the constitution even though such condition made be enforceable if it relates to the qualification of teachers etc., as it is stated in Paragraph 143 of the said judgment which is as follows:-

"143. This means that the right under Article 30(1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant."

22. In fact, while deciding about the minority institution's right, considering the requirement of approval from the Government for removing of a teacher in the minority institution, I had an occasion to sit with M.VIJAYA RAGHAVAN, J, presiding in a Division Bench in T.Sanjeeva Rao v. The Director of School Education & another reported in 2012 Writ L.R.463. While deciding about the obligation of school under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 to constitute a school committee for the purpose of disciplinary proceedings against the teaching and non-teaching staff, wherein we have held by referring to the paragraph 143 of the judgment in T.M.A.Pai Foundation's case cited supra to come to the conclusion that imposing of condition on minority institution to constitute a school committee to conduct disciplinary proceedings against the teacher would amount to interference with fundamental rights of minority institution to administer the educational institution of its choice guaranteed under Article 30(1) of the Constitution of India."

23. In yet another judgment of a Division Bench of this court in A.Belavendran's case cited supra, PRABHA SRIDEVAN, J as Her Lordship then was, while referring to the judgment of the learned single Judge relied on by the learned counsel for the petitioner, namely, M.Chelladorai's case cited supra, while holding that the learned single Judge's view that Rule 15(4) of the Rules is applicable to minority institutions also is not acceptable by following the judgment of the Supreme Court in Secretary, Malankara Syrain Catholic College v. T.Jose and others reported in 2007 (1) SCC 386, which dealt with appointment of Principal under the Kerala University Act, has held in clear terms that the said rule is not applicable in respect of the minority institution by declaring that the principles laid down in T.M.A.Pai Foundation's case cited supra has been crystallised in P.A.Inamdar and others vs. State of Maharashtra and others reported in (2005) 6 SCC, which is again reiterated in Secretary, Malankara Syrain Catholic College's case cited supra.

24. In yet another judgment, P.K.Misra, J sitting with S.K.Krishnan, J in Eka Ratchagar Sabai Higher Secondary School's case cited supra, while specifically referring to the judgment of the learned single Judge in M.Chelladorai's cited supra relied on by the learned counsel for the petitioner herein, held in the light of the T.M.A.Pai Foundation's case cited supra and also judgment in Secretary, Malankara Syrain Catholic College's case cited supra, that discretion of the management in appointing teachers of its choice cannot be curtailed through the process of regulations and other executive instructions and such restriction would violate the constitutional guarantee given to the minority institutions under article 30(1) of the Constitution of India. Further, the Division Bench has also specifically held that there is no scope for applying the provisions laid down in Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 in the following paragraphs:-

"14. As observed in TMA Pai Foundation's case, essential ingredients of the management including admission of students and recruitment of staff, cannot be regulated. It is of course true that the earlier decision of the single Judge in M. Chelladorai's case, which we have already noticed, also purported to rely upon the observations made in TMA Pai Foundation's case. However, now that the matter has been decided by the Supreme Court in (2007) 1 SCC 386 after referring to other earlier decisions, we do not think that the interpretation given earlier by different learned single Judges of this Court can hold good. The necessary conclusion, therefore, is that the discretion of the Management to appoint teacher of its own choice (of course a teacher who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of rules, regulations or other executive instructions as such rules, regulations or executive instructions would violate the right of the minority institution under Article 30(1) of the Constitution.

15. Judged in light of the observations made by the Supreme Court in (2007) 1 SCC 386 (supra), the provisions which lay down qualification for appointment of teachers are obviously required to be followed; whereas the procedure contemplated in Rule 15(4) of the Rules severely constricting the scope of the discretion of the Management in appointment of teachers and confining the same to a particular source would be violative of Article 30(1).

Therefore, such provisions are not required to be followed by the minority institutions. In view of the above, we cannot agree with the view expressed by the learned single Judge under the impugned judgment and such decision is liable to be over-turned.

16. Even assuming that Rule 15(4) of the Rules is applicable and therefore the Management had to follow such procedure, there is no requirement in the Rule nor there is any judicial pronouncement laying down that promotion has to be made only on the basis of seniority. As indicated in the Rule itself, only when a suitable candidate possess the qualification is available from the staff, his case can be considered. In the present case, the Management had given an option to Respondent No.1 to participate in the interview. This was obviously with a view to assess the merit of Respondent No.1. It is no doubt true that simultaneously the Management had also given opportunity to outsiders to participate in the interview. But, merely because of that, it cannot be said that inservice candidates' right had been violated. It is quite possible to hold that the Management in order to avoid delay may think of simultaneously interviewing inservice candidates along with the outsiders and when inservice candidate is found meritorious, such candidate is required to be preferred where Rule 15(4) is applicable. However, merely because such candidate is being interviewed along with other outsiders may not be a factor to vitiate the selection.

25. Further, in the said case, while dealing with the manner in which the promotion was made, the Division Bench has found that, in fact, there was a comparison of assessment made by the management while choosing a candidate and ultimately held that even if assuming that Rule 15(4) of the Rules is applicable when once the management has considered the case of the individuals who are eligible and made comparative assessment, the Courts are not competent to interfere with such selection by substituting their own view. In Paragraph No.17, it has been held as follows:-

"17. In the present case, the learned single Judge has given a direction for appointment of Respondent No.1. Even assuming that Rule 15(4) of the Rules would have been applicable, in that case, the Management could have been directed to hold a fresh selection and under no circumstances a positive direction could have been issued for giving appointment to Respondent No.1 without assessment of her merit by the competent authority, namely, the Management. It is no doubt true that the learned single Judge has referred to the so called merit of Respondent No.1, but that was a matter which was required to be left to the Management to assess and the Court obviously should not have substituted its own wisdom."

26. In yet another case of a Division Bench in M.Siluvi Rajan v. Director of School Education's case cited supra, while dealing with the applicability of Rule 15 (4) of the Rules, regarding the exercise of the power of the management in deciding the suitable candidates when there was a comparison of assessment made between various candidates and management by considering one candidate who is better placed and better suitable, S.Jegadeesan, J, His Lordship then was held that in such event, Rule 15 (4) cannot be exercised by the Court to interfere in such manner of appointment, which are held in Paragraph No.5 is as follows:-

"5. It is for us now to consider whether it is condition precedent to call for the applications from the outsiders that the management has to come to the conclusion that there is no existing qualifying hand in the school. Even for the purpose of arguments, we accept the plea of the learned counsel for the appellant herein we are of the view that, management calls for the applications from the outsiders that itself would show a prima facie conclusion on the part of the management that the existing staff is not qualified even if qualified, he is not suitable candidate. Even otherwise, in the interest of institution of provide good education, it is always open to the institution to select a better qualified person by calling for the applications for a comparative study. If any better and suitable candidates are available, the management cannot be forced to give a promotion tot he existing candidate by virtue of the seniority alone. Rule 15(4) makes it clear that the promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.

6. In the case on hand, the qualification of the appellant is M.A. in Economics (Postal), B.Ed (History), whereas fifth respondent is having M.A. in Economics (Regular Course), B.Ed.,(Economics). The regular course would certainly be preferred for a candidate who obtained the Post Graduate Degree by postal study. Apart from this, when the fifth respondent is having a B.Ed. In Economic, the appellant is having B.Ed. In History. When the vacancy of the P.G.Assistant is with regard to the Economics subject, there is nothing wrong on the part of the fourth respondent in selecting the fifth respondent as better qualified person who is possessing degrees of the requirement subject.

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28. Therefore, looking at any angle, as submitted by Mr.Isaac Mohanlal, learned counsel for the fourth respondent, as per the latest decision of this Court in The Forum of Minority Institutions and Associatins v. The State of Tamil Nadu reported in 2011 (1) CTC 162, after analysing the entire case laws on the issue regarding the minority institutions' right, has held that not only the right conferred on the minority institutions under Article 30 of the Constitution of India is an absolute right but also one of the basic structures of the constitution. Paragraph No.62 of the judgment is as follows:-

"62. The right of Minority Institutions under Article 30 is absolute right being basic structure of the Constitution and therefore, any regulation interfering with the right of administration would not be applicable to the Minority Institutions, being violative of Article 30(1) of the Constitution of India."

29. Therefore, I am unable to accept the contention of the learned counsel for the petitioner in assailing the appointment of the fifth respondent and also the right of the fourth respondent in promoting the fifth respondent as Post Graduate Assistant Teacher in Tamil.

30. Accordingly, the petitioner is not entitled for any relief claimed in the Writ Petition. The Writ Petition fails and the same is dismissed."

8. In Eka Ratchagar Sabai Higher Sec. School's case cited supra, a Division Bench of this Court has observed thus:

"4. Such Rule has been interpreted by a Division Bench of this Court in the decision reported in 2005(1) CTC 8 (THE SECRETARY, SALIAR MAHAJANA HIGHER SECONDARY SCHOOLS, ARUPPUKOTTAI v. G. SUBBURAJ AND OTHERS), wherein it has been held that appointment of outsider can be made only when no qualified and suitable teacher is available in the school.

5. The main question is, however, regarding the applicability of Section 15(4) of the Rules to the minority schools. Learned counsel for the appellants has relied upon several decisions of the Supreme Court in support of his contention that in view of the provisions contained in Article 30(1) of the Constitution of India, the Management of the school has a right to appoint Headmaster, teacher and other staff, of course keeping in view the minimum qualification prescribed but, such discretion cannot be curtailed by making provision regarding appointment of such persons in a particular manner. Particularly he has placed reliance upon the decision of the Supreme Court reported in (2007) 1 SCC 386 (THE SECRETARY, MALANKARA SYRIAN CATHOLIC COLLEGE v. T. JOSE & OTHERS).

6. Before considering the decision of the Supreme Courts, it would be appropriate to notice various decisions of the Madras High Court. In the decision 1990(I) MLJ 284 (D. ETHIRAJ v. STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION & OTHERS), relied upon by the learned counsel for the appellants, the learned single Judge observed:-

"10. The contention of learned counsel for the petitioner is that the rules framed by the Government under Section 19 of the Act will apply to Minority Institutions also and whoever is the appointing authority, has to follow such rules. That question does not arise in view of the express language of rule 15. The said rule refers only to appointments by the School Committee. The rule does not refer to appointment by any other authority. Every sub-rule in rule 15 refers only to the School Committee. The provision relating to appeal in sub-rule (4A) of Rule 15 refers only to an order issued or decision taken or direction given under sub-rule (4). Sub-rule (4) in turn refers only to the appointment by the School Committee. Consequently, the qualifications or conditions prescribed in Rule 15 of the Rules for appointment of teachers and the provision relating to appeal against such appointment will not come into play if an appointment is made by the Educational agency or any authority other than the School Committee. The rule can be invoked only in the case of appointments made by the School Committee. In view of the judgment of the Division Bench in W.P.No.4478 of 1974 etc., it is not open to any party to contend that in the case of minority institutions also, appointments of teachers or other persons shall be made only by the School Committees and not by any other authority."

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11. In the aforesaid decision, the question was relating to the post of Principal in a Minority Aided College. A contention was raised that in view of the provisions contained in Section 57(3) of the Kerala University Act, 1974, seniormost incumbent should have been appointed. The contention on behalf of the Management was to the effect that since the Management was a minority institution, such provision in the Act, which has the right to establish and administer educational institutions of their choice, the right under Article 30(1) was violated. The Kerala High Court held that Section 57(3) would apply to minority institution also and the seniormost from among the eligible and fit lecturers should be appointed as Principal. On the basis of the aforesaid conclusion, appointment of the Principal, who was not the seniormost among the eligible lecturers, was quashed. Such order was challenged by the incumbent. The High Court purported to have relied upon TMA PAI's case (2002 (8) SCC 481)and held that Section 57(3) providing appointing of Principal on the basis of seniority-cum-fitness was valid and binding on minority institutions. The Supreme Court proceeded to consider the matter by posing the following two questions:

"(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State.

(ii) Whether the rights to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, Section 57(3) of the Act would violate Article 30(1) of the Constitution of India."

The Supreme Court after referring to several earlier decisions of the Supreme Court such as (1970)2 SCC 417 (STATE OF KERALA v. VERY REV. MOTHER PROVINCIAL), (1974) 1 SCC 717 (THE AHMEDABAD ST. XAVIER'S COLLEGE SOCIETY v. STATE OF GUJARAT), (1986) 4 SCC 707 (FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES' ASSOCIATION v. UNION OF INDIA) and TMA PAI FOUNDATION's case (supra), observed :-

"17. In T.M.A. Pai (supra) this Court made it clear that a minority institution does not cease to be so, merely on receipt of aid from the State or its agencies. In other words, receipt of aid does not alter the nature or character of the minority educational institution receiving aid. Article 30(1) clearly implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it which will in any way dilute or abridge the rights of the minorities to establish and administer educational institutions. But all conditions that have relevance to the proper utilisation of the aid by an educational institution can be imposed. The High Court, however, wrongly construed T.M.A. Pai and concluded that acceptance of aid by a minority institution takes away its right to claim immunity from interference and therefore the State can lay down any regulation governing the conditions of service of employees of aided minority institutions ignoring the constitutional guarantee under Article 30(1). For this purpose, the High Court relied on the observations in paras 72 and 73 of T.M.A. Pai(supra). After extracting paras 72 and 73, the Supreme Court proceeded to observe :-

But the aforesaid observations in paras 72 and 73 were not made with reference to aided minority educational institutions. The observations in para 72 were intended for aided non-minority private professional institutions. The observations in para 73 were made in the context of aided non-minority non- professional private institutions. The position of minority educational institutions securing aid from the State or its agencies was considered in paras 80 to 155, wherein it was clearly held that receipt of State aid does not annihilate the right guaranteed to minorities to establish and administer educational institutions of their choice under Article 30(1). . . .

19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

(The portions relevant for present purpose are extracted)

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; (d) to use its properties and assets for the benefit of the institution.

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(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. ...

20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well- qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff.

21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:

( i ) the minimum qualifications, experience and other criteria bearing on merit, for making appointments, ( ii ) the service conditions of employees without interfering with the overall administrative control by the management over the staff, ( iii ) a mechanism for redressal of the grievances of the employees, ( iv ) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. . . .

23. In State of Kerala v. Very Rev. Mother Provincial this Court upheld the decisions of the Kerala High Court declaring sub-sections (1), (2) and (3) of Section 53 of the Kerala University Act, 1969 relating to appointment of Principals were ultra vires Article 30(1) in respect of minority institutions.

This Court affirmed the following findings of the High Court (reported in 1969 Kerala Law Times 749, Very Rev. Mother Provincial v. State of Kerala without independently considering the same:

"The principal of a college is, as Section 2(12) recognises, the head of the college, and, the post of the principal is of pivotal importance in the life of a college; around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching; and the right to choose the principal is perhaps the most important facet of the right to administer a college. The imposition of any trammel thereon except to the extent of prescribing the requisite qualifications and experience or otherwise fostering the interests of the institution itself cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution , and, for the reasons we have already given, by Article 19(1)( f) as well. To hold otherwise would be to make the rights a teasing illusion, a promise of unreality. Provision may, of course, be made to ensure that only proper persons are appointed to the post of principal; the qualifications necessary may be prescribed, and the mode of selection for the purpose of securing the best men may be laid down. But to go beyond that and place any further fetter on the choice would be an unreasonable interference with the right of management. Therefore, so far as the post of principal is concerned, we think it should be left to the management to secure the services of the best person available. This, it seems to us, is of paramount importance, and the prospects of advancement of the staff must yield to it . The management must have as wide a field of choice as possible; yet sub-section (2) of Section 53 restricts the choice to the teachers of the college or of all the colleges, as the case may be, and enables the appointment of an outsider only if there is no suitable person in such college or colleges. That might well have the result of condemning the post to a level of dull mediocrity. A provision by which an outsider is to be appointed, or a junior member of the staff preferred to a senior member, only if he is of superior merit, the assessment of which must largely be left to the management, is understandable; but a provision which compels the management to appoint only a teacher of the college (or colleges) unless it pronounces all the teachers unsuitable, is clearly in derogation of the powers of the management, and not calculated to further the interest of the institution. But we might say that there can be no objection to the appointment of the principal as of any other member of the staff being subject to the approval of some authority of the University so long as disapproval can be only on the ground that the person appointed has not the requisite qualifications. Also that if disapproval is not to be only on some such stated ground, but is left entirely to the will and pleasure of the appointing authority, that would be to deprive the educational agency of its power of appointment and would be bad for offending Article 19(1)( f ) and Article 30(1).

24. The importance of the right to appointment of Principals/ Headmasters and teachers of their choice by minorities, as an important part of their fundamental rights under Article 30 was highlighted in St. Xavier (supra) thus:

182 . It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution . So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them. (Emphasis added) Ultimately, the Supreme Court allowed the appeal and set aside the decision of the High Court.

12. Even though the aforesaid decision was relating to appointment of Principal, it is evident that same logic and ratio would be applicable to the appointment of teachers. As a matter of fact, in AIR 1974 SC 1389 = (1974)1 SCC 717 (THE AHMEDABAD ST. XAVIER'S COLLEGE SOCIETY v. STATE OF GUJARAT), while considering the right of the minority institution to appoint its own teachers, it was observed :-

"103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1)."

13. The aforesaid observation was cited with approval in TMA PAI FOUNDATION'S CASE reported in (2002) 8 SCC 481. In para 161 of the aforesaid decision, it was observed :-

"161. ... A. So far as the statutory provisions regulation the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the condition of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. ...

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for which aid is provided by the State, without interfering with the overall administrative control of the management over the staff." (Emphasis added)

14. As observed in TMA Pai Foundation's case, essential ingredients of the management including admission of students and recruitment of staff, cannot be regulated. It is of course true that the earlier decision of the single Judge in M. Chelladorai's case, which we have already noticed, also purported to rely upon the observations made in TMA Pai Foundation's case. However, now that the matter has been decided by the Supreme Court in (2007) 1 SCC 386 after referring to other earlier decisions, we do not think that the interpretation given earlier by different learned single Judges of this Court can hold good. The necessary conclusion, therefore, is that the discretion of the Management to appoint teacher of its own choice (of course a teacher who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of rules, regulations or other executive instructions as such rules, regulations or executive instructions would violate the right of the minority institution under Article 30(1) of the Constitution.

15. Judged in light of the observations made by the Supreme Court in (2007) 1 SCC 386 (supra), the provisions which lay down qualification for appointment of teachers are obviously required to be followed; whereas the procedure contemplated in Rule 15(4) of the Rules severely constricting the scope of the discretion of the Management in appointment of teachers and confining the same to a particular source would be violative of Article 30(1). Therefore, such provisions are not required to be followed by the minority institutions. In view of the above, we cannot agree with the view expressed by the learned single Judge under the impugned judgment and such decision is liable to be over-turned.

9. From the reading of the cited judgments, it is crystal clear that the discretion of the Management to appoint teacher of its own choice (of course a teacher who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of rules, regulations or other executive instructions as such rules, regulations or executive instructions would violate the right of the Minority Institution under Article 30(1) of the Constitution of India. Therefore, keeping those judgments in mind, I am of the considered view that the order impugned in the present Writ Petition warrants interference at the hands of this Court.

10. Accordingly, the order of denial for approving the appointment of B.Gnana Chella Singh as Headmaster in the petitioner's school, dated 24.08.2011, is set aside and the fourth respondent is directed to approve the appointment of B.Gnana Chella Singh, with effect from 01.06.2011 and pass appropriate orders, within a period of four weeks from the date of receipt of a copy of this order. Needless to mention that the salary and other benefits are also to be paid, within the said time limit.

11. The Writ Petition is allowed to the extent indicated above. Consequently, the connected miscellaneous petition is closed. No costs.

1.The Secretary, Department of School Education, Fort St. George, Chennai-600 009.

2.The Director of School Education, College Road, Chennai-600 006.

3.The Chief Educational Officer, Nagercoil, Kanyakumari District.

4.The District Educational Officer, Thuckalay, Kanyakumari District.

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