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Judgment
Honourable Mr. Justice K. Chandru
The petitioner is an aided middle school at Solaiyalagupuram, Madurai 11. Admittedly, the petitioner is a non minority school governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder.
The school which was originally run as primary school and subsequently upgraded as middle school with the specific condition for standards 6 to 8 the school will have to run as self financing basis. Admittedly, the upgradation was done after the amendment made to the Tamil Nadu Private Schools (Regulation) Act, by Tamil Nadu Act 11 of 1999 by introducing Section 14-A in the Act.
By the newly introduced provision, the private school managements were clearly informed that any private school starts any further classes or courses or upgradation, the grant will not be paid only on the ground that has been recognised by the State Government in a sense that the obligation of the State Government to provide grant was frozen upto the year 1991 - 1992 and not thereafter. The petitioner school knowing fully well that the upgraded middle school is not eligible for grant made one B.S.Parimala to conduct classes for the standards 6 to 8 on a self financing basis. In fact, the said teacher herself was informed that she will be paid wages only by the management and she also made as Secondary Grade Teacher of the school with effect from 01.04.2009.
Subsequently, the post of Headmaster of the Primary school became vacant, the management claimed that when it become vacant, they considered the claim of the teachers in the said school and obtained so-called written statement from one R.Muthulakhsmi, S.Arulrani Fernando, R.Meera, K.Sangaravadivu and S.Sivakami that they were not interested in aspiring to become the Headmistress of the school. Therefore, it gave a fresh advertisement asking for teachers with prior experience with five years and it also specified it should be only women teacher for the post of Headmistress being posted in the school. It is pursuant to the said advertisement made in the newspaper, the school management appointed the said P.S.Parimala as Middle School Headmistress with a view thereafter to accommodate her in the primary school which is fully aided by the State Government and governed by the provisions of the Act and Rules. The proposals sent by the management to accommodate the said B.S.Parimala as Headmistress of the primary school with effect from 01.04.2009 was found fault with and they have violated the provisions of the Act. Therefore, if they had acted in terms of the Rules, the relevant Government order can also be enclosed for doing so. In case, the other teachers have relinquished their promotion, they must also be informed to the Department.
The school management pursuant to the communication informed the Assistant Elementary Educational Officer, North Circle, Madurai that though B.S.Parimala was appointed as a graduate teacher, they undertook they will not claim any salary as a graduate assistant holding the post of primary school headmistress and in respect of other teachers, it was found that they relinquished their promotions. These proposals were considered by the District Elementary Educational Officer, Madurai by a communication dated 15.06.2009. They were informed that it is only primary school which is access for grant and therefore, no graduate teacher could be appointed to the primary school.
The person who holds the post of headmistress is also assigned the teaching work and what cannot be done directly and they cannot do it indirectly by bringing a graduate teacher from the self financing section and directly appointing her as primary school headmistress is not permissible. Even the Government Order in G.O.Ms.No.155, School Education, dated 03.10.2002 only gives a ratification in the light of the judgment of the Division Bench of this Court dated 29.06.2001 for graduate teachers who were appointed to the post of Secondary Grade teachers from the period form 11.07.1995 to 19.05.1998 will be ratified as one time measure and hence, it was informed that the petitioner appointing the teacher from outside that too a graduate assistant who is not eligible to hold the post of secondary grade teacher directly as a primary school headmistress is not permissible. She can only continue to work as teacher in self financing section of the middle school. But once again the petitioner management sent a communication dated 15.07.2009 to grant recognition to the post held by B.S.Parimala with effect form 01.04.2009 on account of the fact that primary school has been upgraded as a middle school in terms of G.O.Ms.No.525, School Education, Department, dated 29.12.1997 for which reliance was placed upon the Government has fixed staff strength in respect of various schools. It was stated that taking into the changes in the teaching methodology, availability of teaching and learning materials, a reappraisal of the teacher pupil ratio was made and it was fixed in respect of the middle school having 6 to 8 standards one post of Headmistress will be made in the grade of middle school headmistress. The petitioner nowhere stated that the petitioner school which is also running middle school under the access to grant for the middle school. Even if such a contingency is true, the question of unilateral decision of the management will not arise.
But in the counter affidavit filed by the respondent District Elementary Educational Officer, it is stated that the said Government order do not apply and there is no provision for appointing the middle school Headmistress in the petitioner school. Since there is no post by which the petitioner can hold the post of Headmistress of middle school, the question of grant of approval to the post will not arise. It is also stated that primary school will have to be run only by teachers who have got a diploma in teacher education and no other person can claim to continue as a matter of right to hold the post in question. It was further stated that it is a school which is governed by the provisions of the Act and Rules framed thereunder, they are bound to follow the rules strictly. It is under the said circumstances, they sought vacating the interim order.
Notwithstanding the same, the petitioner filed the contempt petition No.485 of 2010 for punishing the respondents for wilful disobedience of the order of this Court.
When the matte came up on 09.08.2010, this Court directed the learned Additional Government Pleader to get instructions from the respondents As the matter arose out of the interim application, the main writ petition itself came to be posted for final disposal.
Though the learned counsel for the petitioner produced relinquishment letters issued by the individual teachers and also the minutes of the school committee, this Court do not think that there is no case made out for bypassing the statutory rules especially Rule 15(1) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1977 very clearly states that the number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by the Director of School Education from time to time with reference to the academic requirements teacher- pupil ratio and over all financial considerations. Rule 15(6) also stipulates that a teacher and other persons employed in a private school shall possess the qualifications specified in Annexure V. The Annexure V with reference to the secondary grade teacher clearly states that the qualification required is S.S.L.C and diploma in secondary grade or its equivalent.
When persons with graduate teachers qualification were sought to be replaced by the graduate teachers in the secondary grade assistant, the matter was came to be considered by this Court wherein it was a contention of the teachers that the graduate B.T. Assistant has higher qualification than the qualification prescribed for secondary grade teacher and therefore, a person with higher qualification can be appointed in the post of secondary grade teachers. This contention was rejected by S.S. Subramani, J. Therefore, the matter was taken before a Division Bench. The Division Bench by its order dated 29.06.2001 confirmed the order passed by the learned single Judge and thereafter, on the basis of the concession granted by the then Additional Advocate General, passed the following order:
We appreciate the stand taken by the learned Additional Advocate General, which is a pragmatic stand and has an unshakable base of these teachers who have been serving for years together in the lower classes even after studying for a graduation degree that too on meagre salaries, it will be better if an exercise is taken for the confirmation of these teachers. The modalities of which may be decided by the State Government. The State Government may be decided to give the practical training or may even choose to individually examine each on its own merits. There may be individual cases where the Management was absolutely justified in employing a graduate teacher and there could be others where there was no such justification. We do not wish to draw the details and leave it to the State Government.
However, the State Government shall take up this exercise as we have indicated above providing relief to at least such teachers who have been inducted prior to the dismissal of the writ petitions before the learned single Judge. We direct accordingly while dismissing the appeals and the writ petitions. No costs.
It is only to give effect to the Division Bench order, dated 29.06.2001, this Government Order in G.O.Ms.No.155, School Education, dated 03.10.2002, came to be issued as a one measure and the Government order itself was indicated that it is applicable only to persons who are appointed during the period 11.07.1995 to 19.05.1998 and not thereafter. Therefore, what was granted by way of concession cannot be become a general rule The rules as on date stands that the additional post of secondary grade teacher, the qualification required is only Diploma in Education and not Degree in Education and the very argument that a person with higher qualification, he can be appointed is rejected by the Division Bench of this Court.
In such circumstances, it is automatic that the Headmistress of a primary school can only be a senior most teacher who is holding the post of secondary grade teacher and if for any reason, the teachers in the school do not want to take up higher responsibilities (this Court do not think that all the five teachers have relinquished without there being an inducement or threatened by the management).
In any event, in such circumstances, under Rule 15(4), the school management is bound to take prior permission of the competent authority for filling up the post by direct recruitment and they will have to satisfy the authority that the teachers in the school have relinquished the promotion in their own voluntarily left. There was also a doubt in the mind of this Court that all the women teachers would not have relinquished to some higher posts who unlike better carries higher scales of pay and therefore, no person will be willing to shut the higher responsibilities. In any event, since the prior approval of the Department for filling up the post has not been obtained under Rule 15(4) any action taken by the management is not valid.
The Supreme Court vide its judgment in State of Tamil Nadu and Others Vs. Amala Annai Higher Secondary School, dealt with a similar case but in respect of a minority institution. In paragraphs 11 to 15 of the said judgment, the Supreme Court observed as follows:
Secondly, insofar as GOMs No.340 dated 1-4-1992 is concerned, it is not attracted at all. GOMs No.340 dated 1-4-1992 issued by the Education Department mentions:
Accordingly, the following staffing pattern, was recommended by the Committee for deciding the eligibility for post for the schools in question (opened in 1987-1988 and earlier)...
Thus, GOMs No.340 dated 1-4-1992 containing norms for sanction of posts is applicable to the High Schools opened in 1987-1988 and earlier. In the present case, the School was upgraded to High School in 1988-1989.
Thirdly, the Division Bench as well as the Single Judge overlooked and ignored sub-rule (2) of Rule 6 of the Rules, 1977 which reads:
6.(2) Payment of monthly staff grant shall be made only in respect of qualified and admissible teachers actually employed in minority schools whose appointments have been approved by the authorities concerned according to the number of posts sanctioned to the institution concerned.
Admittedly, in the present case, the management of the School appointed Ms. Rosary as Junior Assistant to a non-sanctioned post. The explanation of the management that she was appointed in anticipation of orders from the competent authority hardly merits acceptance.
Fourthly, as per the norms issued in relevant GOMs the strength of the School during 1990-1991 was only 300 and above while the students'' strength of the School during 1990-1991 was only 281. As a matter of fact, it is not even the case of the management that during 1990-1991, the student strength was 300 or more. The student strength during 1993-1994 and subsequent years has no relevance. It is here that the High Court fell into a grave error because what was important under the relevant GOMs was that the student strength must have been 300 or more during the years 1988-1989, 1989-1990 and 1990-1991.
Fifthly, the reliance placed by the High Court on GOMs No.245/Education dated 21-2-1970 is misplaced inasmuch as the said G.O. applied to clerks who were already employed in and around the year 1964 and has no application to a Junior Assistant appointed to a non-sanctioned post in 1988-1989.
Last but not the least, the High Court erred in directing the present Appellant 1 to sanction one post of Junior Assistant to Respondent 1, AAHS School from 1-6-1994 overlooking and ignoring that creation and sanction of posts is the prerogative of the executive and the courts cannot arrogate to themselves a purely executive power.
Therefore, the petitioner cannot demand as a matter of right approval and payment of salary.
Subsequently, a similar question also came up before the Supreme Court in Kolawana Gram Vikas Kendra Vs. State of Gujarat and Others, . In paragraphs 6 to 8, the Supreme Court observed as follows:
In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly, whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter affidavit. Para 3 of the said affidavit reads as under:
Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed.
From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also.
In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution.
(Emphasis added)
Under the said circumstances, there is no merits in the writ petition. Hence, the writ petition stands dismissed. In view of the dismissal of the writ petition and no statutory notice has been issued to the respondent, there is no case made out for contempt. Hence, the contempt petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.