Nehru Memorial College, Puthanampatti vs The State of Tamil Nadu and Others Association of Management of Hindu Educational Institution Vs State of Tamil Nadu

D. Murugesan, J.—This judgment governs both the writ petition and the writ appeal as the issues involved are the same.

The Petitioner in the writ petition is a private aided college run by the management ! in the name of Nehru Memorial College, Puthanampatti.

The Petitioner challenged the Order made in G.O. Ms. No. 1138 Labour and Employment Department dated 25.09.1978.

The Appellant in the writ appeal is the Association of Management of Hindu Educational Institution, Tamilnadu, represented by its Secretary.

The Association filed W.P. No. 355 of 1997, challenging the proceedings of the Director of School Education made in Na. Ka. No.

l05532/C22/96 dated 02.10.1996. The writ petition was dismissed by the learned single Judge on 03.04.1998. Hence, the writ appeal.

The Petitioner in the writ petition is governed by the provisions of The Tamil Nadu Private Colleges (Regulation)Act, 1976 (hereinafter referred

to as ""the Colleges Act"") and the rules made thereunder. The Appellant in the writ appeal is governed by the provisions of The Tamil Nadu

Recognised Private Schools (Regulations) Act, 1973 (hereinafter referred to as ""the Schools Act"") and the rules made thereunder.

""The Colleges Act"" and ""the Schools Act"" were enacted to regulate the conditions of service of teachers in the private colleges / schools and

also the rules relating to managing bodies and payment of grants to private educational institutions should be made statutory. The said Act applies

to the private educational institutions, including those run by the minorities.

Section 10 of ""the Colleges Act"" deals with payment of grant to the private colleges. Section 11 of the Act provides for Constitution of College

Committee, which consists of the Principal, the senior most Selection Grade Lecturer or Reader, one other Selection Grade Lecturer and the

senior most Superintendent. u/s 14 of ""the Colleges Act"", the College Committee has the power to appoint teachers and other persons, fixing their

pay and allowances and to define their duties and the conditions of service, including taking disciplinary proceedings. Section 15 of the Act relates

to the qualifications of the teachers and other persons employed in private colleges. Section 15(1) relates to the power of the University to make

regulations, statutes or ordinances specifying the qualifications required for the appointment of teachers and other persons employed in any private

college. Section 15(2) of the Act deals with the power of the Government to make any rules specifying the qualifications required for appointment

to any post, other than teachers, in any private college. Section 53 of ""the Colleges Act"" enables the State Government to make rules to carry out

the purpose of this Act.

By virtue of the powers u/s 53 of ""the Colleges Act"", the State Government framed The Tamil Nadu Private Colleges (Regulation) Rules, 1976

(hereinafter referred to as ""the College Rules""). The relevant rules for the purpose of disposal of the writ petition are 11(4)(i) and 1 l(4)(ii) and the

same are extracted hereunder:

11(4)(i) Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered only where merit and

ability are approximately equal, and in respect of non-teaching staff promotions shall be made on seniority basis, provided other conditions

regarding qualification are satisfied.

11(4)(ii) The committee shall fill up the posts by promotion or by direct recruitment. The committee shall, while making promotion, consider the

claims of all the qualified teachers in that college. If, however, none of the qualified teachers in the college is found suitable for promotion, the

vacancy shall be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for a list of

candidates from the Employment Exchange by following the rule of reservation ordered by the Government from time to time for direct

recruitment.

Coming to the writ appeal, the issue relates to private schools. Section 14 of ""the Schools Act"" relates to the payment of the grant by the

Government to the private schools. Section 15 relates to the Constitution of a School Committee, which shall include the headmaster of the private

school and the senior most teachers employed in the private school. Section 18(1)(b) of ""the Schools Act"" enables the School Committee to

appoint teachers and other employees of the private school, fixing their pay and allowances and to define their duties and the conditions of service.

Section 18(1)(c) relates to the power of the School Committee to take disciplinary proceedings against teachers and other employees. Section 19

deals with the qualifications, conditions of service of the teachers and other persons employed in private schools. Section 56 of ""the Schools Act

enables the State Government to make rules to carry out the purpose of the Act.

By virtue of the powers u/s 56 of ""the Schools Act"", the State Government framed The Tamil Nadu Recognised Private Schools (Regulation)

Rules, 1974 (hereinafter referred to as ""the School Rules""). The relevant rules for the purpose of disposal of the writ appeal are 15(4)(i) and 15(4)

(ii) and the same are extracted hereunder:

15(4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.

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

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

(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 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.

(d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in Clause (ii) either from the

category of Headmasters of High Schools or Teachers'' Training Institutes or from the category of Post-Graduate Assistants in academic subjects

or Post-Graduate Assistants in Languages provided they possess the prescribed qualifications.

On a combined reading of the provisions of both the Acts and the Rules, it could be culled out that the power to make appointments of

teaching and non-teaching staff of private colleges and of the schools shall vest with the respective College Committees and the School

Committees as the case may be in the manner prescribed in the Acts and the Rules. In the case of private colleges, whenever vacancy arises, the

college committee shall fill up the posts by promotion or by direct recruitment. If, none of the qualified teachers in the college is found suitable for

promotion, the vacancies shall be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for

a list of candidates from the Employment Exchange by following the rule of reservation ordered by the Government from time to time. In the case

of private schools, whenever vacancy arises, the School committee shall fill up the posts by promotion. If, none of the qualified teachers in that

school is found suitable for promotion, the vacancy shall be filled up by appointing a teacher from any other school or by 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 or the Chief Educational Officer, as the case may be setting out the reasons for such appointment.

While granting aid to the private educational institutions, the State Government is empowered to issue directions to carry out the purpose of the

Acts and Rules and as a necessary corollary, such directions should not be contrary to the provisions of the Acts and the Rules.

Apparently by exercising the powers u/s 10 of ""the Colleges Act"" and Section 14 of ""the Schools Act"", the State Government issued the

impugned Government Order in G.O. Ms. No. l 138 Labour and Employment Department dated 25.09.1978. The relevant paragraphs of the

Government Order for the purpose of consideration and disposal of the writ petition and the writ appeal could be extracted as under:

Government of Tamil Nadu

Labour and Employment Department

G.O. Ms. No. l 138 Dated: 25.09.1978

All the Industries, Institutions, Universities, Colleges, Schools, Hostels, Orphanages, Co-operative Societies etc., which receive financial assistance

by way of grant of loan or material assistance etc., from this Government or State Quasi-Government Institutions, Statutory Corporations, Public

Sector, Undertakings, Autonomous Boards, Cooperative Institutions etc., should recruit its personnel, only through Employment Exchanges by

way of notifying the vacancies to the concerned Employment Exchange in the manner and form prescribed under the Employment Exchanges

(Compulsory Notification of Vacancy) Rules 1960 and resort to any other form of recruitment like advertisement in Dailies etc., only after

obtaining a ""Non-availability Certificate"" from the concerned Employment Exchanges or obtaining the prior sanction of Government through the

financial institutions or Government Department in the administrative departments of the Secretariat in consultation with the Labour and

Employment Department in the Government.

The financial grant or material assistance should be stopped forthwith and the loan should be foreclosed to the Private Institutions, Industries,

Schools, Colleges, Univerties, Hostels, Orphanages, Co-operative Societies etc., which do not carry out in the conditions in Item (1) above.

As per the said G.O., both the Private Colleges and the Schools were directed to recruit its personnel only through Employment Exchanges by

way of notifying the vacancies to the concerned Employment Exchange in the manner and the form prescribed under the Employment Exchanges

(Compulsory Notification of Vacancy) Rules 1960. The Government further directed that any other form of recruitment like advertisement in

dailies etc., shall be made only after obtaining a ""Non-availability Certificate"" from the concerned Employment Exchanges or obtaining the prior

sanction of Government through the financial institutions or Government Department in the administrative departments of the Secretariat in

consultation with the Labour and Employment Department in the Government. It further directed that the non-compliance of the conditions would

result in stoppage of financial grant or material assistance. On the same line, the impugned proceedings of the Director of School Education dated

02.10.1996 was issued pursuant to the Government Order, instructing the officers empowered to approve the appointments to see as to whether

the appointments made by the private educational institutions are made only from the list of candidates sponsored from the Employment Exchange,

failing which disciplinary action would be taken against those officers.

It is the submission of Mr. Kandavadivel Doraisamy, learned Counsel for the Petitioner, Mr. A. Sankarasubramanian, learned Counsel for the

Appellant and Mr. G. Masilamani, learned Senior Counsel appearing for Respondents 4 and 5 in the writ Petition that the State Government

cannot infringe the right of the private educational institutions to make appointments as per the Acts and Rules, as any such infringement would

offend the right of equality enshrined under Article 14 of the Constitution of India.

Mrs. T. Kokilavani, learned Government Advocate appearing for the Respondents on the other hand would submit that the validity of the

impugned Government Order came up for consideration before a Division Bench of this Court in the judgment reported in The State of Tamil

Nadu v. The Tamil Nadu Recognised Private Schools Managers'' Association 1995 W.L.R. 499 and it was held that the State Government was

empowered to impose conditions as contained in the G.O., to the Private educational institutions while granting aid. The conditions imposed in the

impugned Government Order do not in any way offend either Article 14 or Article 16 of the Constitution of India as those conditions were

imposed only in conformity with the provisions of not only ""the Colleges Act"" and ""the Schools Act"", but also the provisions of The Employment

Exchanges (Compulsory Notification of Vacancies) Act, 1959 (hereinafter referred to as ""the Act"") and the Rules made thereunder. Learned

Government Advocate would further submit that u/s 4 of ""the Act"", the Private colleges or Private schools as the case may be shall notify the

vacancies to the Employment Exchange and shall make appointments only from the candidates forwarded by the employment exchange on the

basis of merit.

The question for consideration in. both the writ petition and in the writ appeal is as to whether the State Government can issue directions to

Private educational Institutions receiving aid, directing them to recruit both teaching and non-teaching staff only from the candidates sponsored by

the Employment Exchange.

The provisions of Section 4 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 came up for consideration

before a Bench of two Judges of the Apex Court in the case of Union of India (UOI) and Others Vs. N. Hargopal and Others, The question

raised before the Apex Court was as to whether an establishment in the Public Sector or in the Private Sector as defined under the Act may make

an appointment to the post, to which the Act applies by persons not sponsored by the Employment Exchange. The Apex Court held as follows:

The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In

the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the

matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for

employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced.

This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment

through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that

Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the

daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of

recruitment, we think that any restriction that employment in government departments should through the medium of employment exchanges does

not offend Articles 14 and 16 of the Constitution.

Though the Apex Court found that insistence on recruitment through Employment Exchange advances the rights guaranteed by Articles 14 and 16

of the Constitution of India, it never laid down a law that the establishment should not call for applications from other modes. The Apex Court had

only said that the establishment if allowed to choose the candidates for making appointments by receiving applications on other modes only, an

element'' of arbitrariness would be introduced.

A similar question came up for consideration before the bench of three Judges of the Apex Court in the judgment reported in Excise

Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, . The Apex Court also considered the judgment

reported in Union of India (UOI) and Others Vs. N. Hargopal and Others, and held as follows:

It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to

be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names

come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be

considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority /

establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning

departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking

or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards

or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this

procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible

candidates.

From the analysis of law laid down | by the Apex Court, it is apparent that though it is mandatory on the part of private educational institutions

receiving aid from the Government to notify the vacancies to the respective employment exchanges, they are also at liberty to call for the names by

publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and

employment news bulletins. If this procedure is adopted, it would give a fair chance for the committees to identify and select the best of the

candidates. The procedure would be also in the interest of the students as they will have the benefit of training and education from talented

teachers.

Let us now consider the substainablity of the impugned Government Order in the writ petition and the consequential impugned proceedings of

the Director of School Education in the writ appeal. A reading of the impugned orders would disclose a clear mandate to the educational

institutions to recruit both teaching and non-teaching staff only from among the candidates sponsored by the employment exchange, leaving no

room for them to have better candidates for consideration through other modes also. This, in our considered view is unsustainable in view of the

authoritative pronouncement of the Apex Court in K.B.N. Visweshwara Rao''s case (Cited supra)

It is true that the Division Bench of this Court, while considering the validity of G.O. Ms. No. 1138 Labour and Employment Department

dated 25.09.1978 has upheld the G.O., by dismissing the writ petition. However, in view of the subsequent judgment of the Apex Court in K.B.N.

Visweshwara Rao''s case, the sustainability of the G.O has to be considered only in the light of the latest judgment of the Apex Court. Both the

impugned Orders are only administrative in character. When the provisions of the Acts and Rules, governing the private educational institutions,

stipulate a particular mode of procedure to be adopted for appointment, the question remains as to whether directions that are contrary to those

provisions could be issued by the Government by way of administrative instructions.

It is well settled law that administrative instructions cannot override the provisions of the Acts and the Rules. In so far as ""the College Rules"",

Rule 11(4)(i) provides a mode for appointment, including a mode of calling applications through Press and calling for a list of candidates from the

Employment Exchange. When the Rules specifically enables the College Committee also to call for applications through Press, issuance of

administrative orders depriving such rights cannot be sustained. Though the power of the State Government to issue directions as the funding

authority cannot be disputed, such power cannot be stretched enabling the Government to ! issue directions overriding the provisions of the Acts

and the Rules. In fact, Section 10(2) of ""the Colleges Act"" entitles the State Gov- i eminent to withhold permanently or for any '' specified period

the whole or part of any grant referred to in Sub-section (1) in respect of any private college which does not comply with any of the provisions of

this Act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private colleges.

The said section only empowers the State Government to issue directions only in conformity of the Acts and the Rules and not otherwise.

Coming to the private schools, Rule 15(4)(i) of ""the Schools Rules"" provides a mode enabling the school committee to make appointments.

Appointment to the category of teachers shall be made by promotion among the qualified teachers in that school and if no qualified or suitable

candidate is available in that school, then the School Committee can appoint any other persons employed in any other school, provided that they

are fully qualified to hold the post of teachers. It can also resort to make appointments through direct recruitment. The impugned proceeding is

consequential to the G.O. Ms. No. 1138 Labour and Employment Department dated 25.09.1978. The said impugned proceedings are

communicated to all the Educational officers, directing to strictly follow the directions contained in the G.O., before approving any appointments in

the private educational institutions, with further warning that in the event of any violations, disciplinary proceedings will be initiated against such

officers. In effect, by the said proceedings the right of the School Committee to recruit teachers, following Rule 15(4)(i) of ""the School Rules"" is

curtailed. The object of both the Acts is also to give statutory rights to the Rules. When the Rules are framed by the very State Government, by

exercising the Rule making power, issuance of directions, that are inconsistent with the Rules cannot be sustained. In fact, by virtue of the powers

u/s 14(2)(i) of ""the Schools Act"", it is of the Government, which could withhold the grant to the schools which does not comply with the provisions

of the Act or any Rules made or directions issued thereunder in so far as such Provisions, Rules or directions are applicable to such private

schools. Power to withhold the grant does not vest with the Director of School Education, who has issued the impugned proceedings. When we

find that the very G.O itself is invalid, it must be held that the consequential impugned proceedings are also invalid. Hence, the impugned order and

the proceedings, therefore in our considered view would certainly override the provisions of Rule 11(4)(i) and 1 l(4)(ii) of ""the College Rules"" and

Rule 15(4)(i) of ""the School Rules"" and as such, they are invalid and are unsustainable in the eye of law.

From the above analysis, the following conclusions would emerge. The State Government is empowered to issue instructions in the capacity of

funding authority to the private colleges and the schools receiving;! grants and such instructions cannot overrides the provisions of the Act and the

Rules. It is mandatory on the part of the educational institutions receiving grants to notify the vacancies to the respective employment exchanges.

The educational institutions are also empowered to call for the applications from other modes like newspaper publication, advertisement, media,

calling for applications by notifying the same in the notice board, consider all the applications and select the best of the candidates from among

them without there being any preference to the candidates sponsored by the Employment Exchange.

Learned single Judge in the judgment under appeal dismissed the writ petition on the ground that the impugned order is not inconsistent with the

Rules as they are supplement to the Rules. While Rule 15(4)(i) and 15(4)(ii) of ""the School Rules"" enable the School Committee to follow a

particular mode of recruitment, including promotion and by direct recruitment, by the impugned proceedings the very right of the School

Committee to select the best of the candidates in the manner prescribed under the Rule is taken away. Hence, the impugned proceedings cannot

be considered as of supplementing the Rules. For the above reasons, we are unable to agree with the findings of the learned single Judge.

Accordingly, the order of the learned single Judge is set aside.

In the result, both the writ petition and the writ appeal are allowed. No costs.