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Judgment
S. Nagamuthu, J.—The sixth respondent is a minority school in terms of the Tamil Nadu Recognised Private Schools (Regulation) Act,
1973. The petitioner was initially appointed as part time Vocational Instructor in the sixth respondent School on 01.10.1989. Thereafter, he was
appointed as full time Vocational Instructor (Commerce) Grade-I with effect from 21.12.1994. One Mr. Xavier Raj was all along working as P.G.
Assistant in Commerce in the sixth respondent School. Mr. Xavier Raj retired from service on attaining the age of superannuation on 31.05.2012.
Thus, on 01.06.2012, there had arisen a vacancy for the post of P.G. Assistant in Commerce Subject in the sixth respondent School. Even before
the vacancy could fall, the petitioner made a representation on 27.01.2012 itself to consider him for appointment in the vacancy to be caused on
account of the retirement of Mr. Xavier Raj. According to the petitioner, he is fully eligible for being appointed as P.G. Assistant in Commerce. But
without considering the petitioner''s claim for promotion to the post of P.G. Assistant, according to the petitioner, the sixth respondent had made an
advertisement in a local newspaper calling for applications from the eligible candidates for the post of P.G. Assistant in Commerce. The said
advertisement was made on 07.02.2012. The last date for submission of application was 15.02.2012. At that juncture, the petitioner rushed to this
Court with this writ petition and this Court, while ordering notice in the writ petition, granted interim order of injunction. On account of the said
order of injunction, the post of P.G. Assistant in Commerce has not been filled up in the sixth respondent School. While so, this writ petition has
come up today for final hearing.
I have heard the learned counsel for the petitioner, learned Additional Government Pleader appearing for respondents 1 to 5 and the learned
counsel for the sixth respondent and perused the records carefully.
It is the contention of the petitioner that as per Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, he is
entitled for promotion from the post of Vocational Instructor to the post of P.G. Assistant in Commerce, as against the existing vacancy. But
without promoting the petitioner, according to him, advertisement has been given by the sixth respondent calling for applications from open market.
This, according to the petitioner, is illegal and therefore, the same has to be quashed. The petitioner has also further prayed for a direction to the
respondents to promote him as P.G. Assistant in Commerce.
In the counter filed by the fourth respondent, it is stated that Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules,
1974, is not at all applicable to a minority institution. The learned counsel appearing for the respondents have brought to my notice the Division
Bench judgment of this Court in Eka Ratchagar Sabai Higher Secondary School Vs. K. Sumathi and The Chief Educational Officer, . In the
counter, it is further stated that the position of the petitioner as Vocational Instructor (Commerce) Grade-I will not be disturbed. It is also stated by
the learned counsel for the respondents that the petitioner can very well make his application as against the said vacancy in pursuance of the above
advertisement and his case will also be duly considered by the Management along with other applicants.
But the learned counsel for the petitioner would submit that Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules,
1974, is very much applicable to a minority institution. For this purpose, the learned counsel for the petitioner relied on a decision of a learned
single Judge of this Court, in M. Chelladorai Vs. Joint Director of School Education (Higher Secondary), District Educational Officer,
Correspondent, C.S.I. Higher Secondary School and J. Evangline, B.T. Assistant (Promotee) CSI Higher Secondary School, , and a Division
Bench judgment of this Court made in W.A. (MD) No. 649 of 2007 dated 23.02.2011.
I have considered the above submissions. The core question to be answered is as to whether Rule 15(4) of the Tamil Nadu Recognised Private
Schools (Regulation) Rules, 1974, is applicable to a minority institution or not. If it is held for any reason that the said Rule is applicable, certainly
the petitioner is entitled for promotion from the post of Vocational Instructor (Commerce) Grade-I to P.G. Assistant in Commerce. But according
to the sixth respondent, the said Rule is not applicable. The Division Bench headed by Hon''ble Mr. Justice P.K. Misra in Eka Ratchagar Sabai
Higher Secondary School Vs. K. Sumathi and The Chief Educational Officer, , has extensively dealt with the said issue and has held that Rule
15(4) is not applicable to a minority institution. In paragraph-15 of the said judgment, the Division Bench has held as follows:
Judged in light of the observations made by the Supreme Court in Secretary, Malankara Syrian Catholic College v. T. Jose (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.
From the above judgment, it is crystal clear that Rule 15(4) is not at all applicable to a minority institution and therefore, the claim of the
petitioner that he is entitled for promotion by virtue of the said Rule, is not at all tenable. In view of the law laid down by the Division Bench
subsequently in the above stated case, the judgment of the learned single Judge in M. Chelladorai''s case, referred to by the learned counsel for the
petitioner, now cannot be taken as a binding precedent.
So far as the Division Bench judgment in W.A. (MD) No. 649 of 2007 dated 23.02.2011 is concerned, the said judgment is on a different
issue. That was a case where the Government Order regulating the post of Head of the Department was challenged. According to the said
Government Order, a senior-most person in the Department shall be, in general, nominated as Head of Department. When the said G.O. was
challenged stating that it runs contra to the minority rights guaranteed under Article 30 of the Constitution of India, the Division Bench held that
since the Government Order is only regulatory in nature, it cannot be said that it is violative of Article 30 of the Constitution of India. In paragraph-
13 of the judgment, the Division Bench has held as under:
The purport of the impugned order is to designate the senior most Lecturer/Selection Grade Lecturer/Reader as HOD as no
selection/appointment is involved for designation of the senior most person as the right of the management to administer the college without
interference, which is guaranteed right under Article 30(1) of the Constitution of India, is not affected. It is only a regulatory measure taken by the
Government to give weightage to the seniority at least at the HOD level. If the senior most person, who is designated as HOD is not performing his
duties and if any dereliction of duty is noticed, it is upto the management to take action against such person and the same is also not curtailed in any
manner.
In view of the said decision, it is difficult to concede that the Division Bench in this case has held that Rule 15(4) is applicable. Therefore, I hold
that Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, is not applicable to a minority institution and hence the
petitioner is not entitled for promotion. As has been stated by the learned counsel for the sixth respondent, it is open for the petitioner to make
appropriate application seeking appointment as against the above vacancy in pursuance of the advertisement, and it is for the Management to
consider the same along with the other applicants based on merits.
In the result, the writ petition fails and accordingly it is dismissed, however, with a liberty to the petitioner to make an application within a period of
ten days from today. Thereafter, it is open to the sixth respondent to continue and conclude the selection process. Consequently, the interim order
of injunction granted by this Court, stands vacated. The connected miscellaneous petitions are closed. No costs.