The T.N.A. Nallalagu Nadar Higher Secondary School vs The Government of Tamil Nadu

S.S. Subramani, J.—Petitioner seeks issuance of writ of certiorarified mandamus, calling for all records relating to G.O. Ms. No. 539, Education (M-1) Department, dated 21.4.1986, of the 1st Respondent herein and the proceedings of the 2nd Respondent herein made in O.Mu. No. 19830 A2/92 dated 18.1.93 and quash the above orders of 1st Respondent and 2nd Respondent, and direct the 2nd Respondent herein to approve the appointment of S. Pitchaimuthu, B.Sc., B.Ed., as Secondary Grade Teacher with all benefits, privileges and salary in the Petitioner T.N.A. Nallalagu Nadar Higher Secondary School, Perilovanpatti, Chidambaranar District from 1.6.92 onwards in so far as the Petitioner is concerned, and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case.

In the affidavit sworn to by the Secretary of the Petitioner-School, it is stated that it is an Aided School, and a vacancy arose on 31.5.1992 due to the retirement of one Shanmugham, a Secondary Grade Teacher. Petitioner, after complying with the necessary formalities and interview of several teachers, appointed one S. Pitchaimuthu, a B.Sc., B.Ed. Graduate Teacher in the said vacancy from 1.6.1992 onwards. It is said that the appointment was so made because most of the Secondary Grade candidates seeking employment came from unrecognised Teacher Training Institution and other Teacher Training Institution and were not equipped and able to teach the changed syllabus and method of education. It is said that S. Pitchaimuthu is a B.Sc. Graduate and he has graduate degree in education. He is better qualified than a Secondary Grade Teacher, who is only a S.S.L.C. and Teacher Training Diploma Holder. When approval was sought, 2nd Respondent, by proceedings dated 18.1.1993 returned the papers without approving the appointment on the ground that the better qualified graduate teacher cannot be appointed in a Secondary Grade Post in so far as non-minority Schools are concerned and also because the Petitioner has not obtained the list of Secondary Grade teachers for appointment from Employment Exchange. According to the Petitioner, the reasoning cannot be accepted, and the impugned orders are liable to be quashed.

Even though no counter affidavit has been filed, learned Additional Government Pleader argued the matter on instructions.

Regarding the first objection that the appointment was made without approaching the Employment Exchange, I do not think that the said contention could be accepted in view of the Bench decision of this Court in Writ Appeal No. 871 of 1993 - dated 17.2.1995 (The State of Tamil Nadu v. The Tamil Nadu Recognised Private Schools Managers Association rep. by its Joint Secretary Pulavar Palanisamy). In that case, the question was, whether the State Government can issue a direction to the private education institutions, whether of minority institutions or otherwise, receiving aid from the State to make recruitment to the post of teachers only from among the candidates sponsored by employment exchange. The validity of the Rule was challenged before the Bench. This Court held that insisting that the appointment should be made only by calling for list from the Employment Exchange is not violative of Article 14 of the Constitution of India, nor does it affect the various educational institutions in establishing the School, nor does it interfere with the right of Management in any way. It was further held by the Bench that when the State has spent huge amount for the cause of education, and also provides Grants, it is entitled to insist that appointment should be made only through Employment Exchange. But, in regard to appointment already made, in paragraph 19 and 20 of the judgment, Their Lordships held that all appointments made upto that date of judgment, must be treated as valid, and educational authorities were directed to approve the appointments if the incumbents were otherwise qualified. Those paragraphs of the judgment read thus:

Lastly, it is contended by the Petitioners that in the event this Court were to come to the conclusion that the State Government is entitled to or is authorised under law to issue a direction to the private educational institutions to make recruitment through Employment Exchanges, the appointments so far made should not be disturbed, because the appointees have been working for the last several years and if they are to be disturbed, they will not be eligible for securing another job, as most of them would be barred by age.

We see merit in this submission. These Writ Petitions have been pending for the last several years. There has been an interim order passed in these Writ Petitions. As a result thereof recruitments have been made by private educational institutions, without going through Employment Exchanges. The appointees cannot be considered to be at fault, therefore they should not be made to suffer. Hence, we are of the view that the appointments so far made upto this day should not be affected by this decision or by the impugned Government orders and the approval sought for by private educational institutions in respect of appointments already made, shall be considered on merits and without reference to the fact that such appointments have been made from open market and not from the candidates sponsored by Employment Exchanges.

The second question that arises for consideration is, whether in a secondary grade post, a graduate trainee teacher could be appointed. Even in a batch of Writ Petitions, it was held that even though the qualifications are different and the appointment could not be approved, in regard to appointments made upto 11.7.1995, the Government itself has issued a Government Order ratifying the same. G.O. Ms. No. 559, Education, Science and Technology Department was issued on 11.7.1995, prohibiting the educational institutions from appointing a graduate and trainee teacher in the vacancy of a Secondary Grade Teacher. As per G.O. Ms. No. 203, Education, Science and Technology Department, dated 19.3.1996, another Order was issued, and it reads thus:

In the G.O. second read above (GO 559), orders were issued directing the Director of Elementary Education not to approve the appointments of B.T./Tamil Pandits in the Secondary Grade Teacher Vacancies in future, in all kinds of Schools (including minority Schools). It has now been decided by Government that all the appointments made in the Secondary Grade teacher vacancies in the Aided Elementary/Middle Schools till 10.7.95, by appointing higher qualified people such as B.T./Tamil Pandit, etc. be ratified by the concerned approving authorities provided they are otherwise eligible. These orders are applicable to all kinds of Aided Elementary/Middle Schools including Minority Schools under the control of Director Elementary Education. However, the Government direct that such appointments should not be resorted to after 11.7.95 and any such appointment will not be ratified by Government in future.

In view of the said Government Order, appointment in this case which was made on 1.6.1992, has only to be approved. In fact, the same view was taken by another learned Judge (Shivaraj Patil, J.) in W.P. No. 11336 of 1995 - dated 12.8.1996 (Mrs. A. Flora Dharmanesam v. The Government of Tamil Nadu).

In the result, the impugned order is quashed. Respondents are directed to reconsider the question of approval of the appointment of S. Pitchaimuthu, B.Sc., B.Ed. as Secondary Grade Teacher in the Petitioner-School with effect from 1.6.1992, and pass orders regarding the same within one month from to-day. While passing orders, if it is found that S. Pitchaimuthu is eligible to be appointed, consequential monetary benefits also will be provided in the same order, without driving him to approach a Court of law. Apart from the same, I further direct the Respondents to make necessary payment also within one month thereafter. The Writ Petition is allowed as indicated above. No costs. W.M.P.7221 of 1993 for interim direction is closed.