Madras High Court
Princewin Raja vs The Secretary To The Government on 2 July, 2021
W.P(MD)Nos.1400, 1401, 1452 & 1453 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)Nos.1400, 1401, 1452 & 1453 of 2020
Princewin Raja ... Petitioner in W.P(MD)No.1400/2020
Kipson Thomas ... Petitioner in W.P(MD)No.1401/2020
Burnaboss ... Petitioner in W.P(MD)No.1452/2020
Vel Sundari ... Petitioner in W.P(MD)No.1453/2020
vs.
1.The Secretary to the Government,
Department of School Education,
St. George Fort,
Chennai.
2.The Director of School Education,
DPI Compound,
College Road,
Chennai.
3.The Chief Educational Officer,
Tirunelveli,
Tirunelveli District.
4.The District Educational Officer,
Tenkasi,
Tirunelveli District.
1/20
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5.The Correspondent,
Baren Bruck Higher Secondary School,
Bungalow Surandai,
Tirunelveli District. ... Respondents in all W.Ps'
COMMON PRAYER: Writ Petitions filed under Article 226 of the Constitution
of India for issuance of a Writ of Mandamus, to direct the respondents 3 and
4 to approve the appointment of the petitioners as B.T Assistant Teachers in
the fifth respondent School from the date of appointments ie., 05.07.2019,
05.07.2019, 01.08.2019 and 09.07.2019 respectively and confer all the
consequential benefits.
For Petitioner : Mr.V.R.Shanmuganathan
(In all W.Ps') for Mr.S.Chella Pandian
For RR 1 to 4 : Mr.K.S.Selva Ganesan
(In all W.Ps') Government Advocate
For R – 5 : Mr.Vinoharan
(In all W.Ps') for Mr.G.Prabhu Rajadurai
COMMON ORDER
The petitioners have filed the present Writ Petitions, to direct the
respondents 3 and 4 to approve the appointment of the petitioners as
B.T Assistant Teachers in the fifth respondent School from the date of
appointments ie., 05.07.2019, 05.07.2019, 01.08.2019 and 09.07.2019
respectively and confer all the consequential benefits.
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2.According to the petitioners, they are fully qualified to be appointed
as B.T Assistant (English), B.T Assistant (English), B.T Assistant (Science)
and B.T Assistant (Science) respectively, in the fifth respondent School. The
fifth respondent School is a Minority Aided School managed by CSI Diocese.
The third respondent periodically inspected the fifth respondent School and
fixed the staffs strength, according to the students strength. In the fifth
respondent School, for the last five academic years, students strength have
been increased and the fifth respondent School required more teaching
staffs than the sanctioned posts. While so, the Parents-Teacher Association
of the School found inadequacy of Teachers and convened a meeting on
27.04.2019 and recommended the fifth respondent to appoint new Teachers
on par with students strength as per G.O.Ms.No.525, School Education (D1)
Department, dated 29.12.1997. As per the said G.O.Ms.No.525, School
Education (D1) Department, dated 29.12.1997, the fifth respondent School
requires 22 Additional Teaching posts, namely, 11 P.G Assistant and 11
B.T Assistant posts, based on the students strength for the Academic Year
2018-19. The fifth respondent sent a representation to the respondents
2 and 3 to sanction the above additional posts and teaching staffs.
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3.The fifth respondent School, after following the procedure, selected
and appointed the petitioners as B.T Assistant (English), B.T Assistant
(English), B.T Assistant (Science) and B.T Assistant (Science) respectively,
in the fifth respondent School on 05.07.2019, 05.07.2019, 01.08.2019 and
09.07.2019 respectively. The fifth respondent School sent proposals on
14.08.2019 to the fourth respondent for receiving grant-in-aid for the said
posts. The fourth respondent has not passed any order. In the
circumstances, the petitioner has come out with the present Writ Petitions.
4.The learned counsel appearing for the petitioners submitted that the
fifth respondent School was established in the year 1888. The students
strength have been increased for the last five Academic Years. The Authority
have to fix the teaching staffs taking into consideration the students
strength and sanction the grant-in-aid. The learned counsel appearing for
the petitioners further submitted that staff strength is 1:30, if the
respondents fixed staff strength as per the Right to Education Act, the
petitioners will be within the sanctioned staff strength. The new
management cannot oust the petitioners and appoint new Teachers in the
place of the petitioners.
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5.The learned counsel appearing for the petitioners further submitted
that the fifth respondent School has sent a representation, dated
24.06.2019, for sanctioning additional staffs. The official respondents have
not passed any order. In view of the Judgment of the Division Bench of this
Court in W.A(MD)No.76 of 2019 etc., batch, dated 31.03.2021 [The
Secretary to Government, School Education Department Vs.
Iruthaya Amali and another], the staff strength has to be fixed based on
the increased students strength and additional sections. The fifth
respondent School has to make a fresh request for fixation of staff strength
and the official respondents have to consider the students strength and fix
the staff strength. On such fixation, the official respondents have to
consider the approval of the appointment of the petitioners as per the
direction issued by the Division Bench of this Court in the Judgment in
W.A(MD)No.76 of 2019 etc., batch, dated 31.03.2021 [The
Secretary to Government, School Education Department Vs.
Iruthaya Amali and another].
6.The respondents filed counter-affidavit.
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7.The learned Government Advocate appearing for the respondents
1 to 4 submitted that the fifth respondent School is a Minority Aided School
getting aid only for approved staffs. The petitioners are neither approved
staffs nor regularized employee of the fifth respondent School and they are
only the Management staffs getting salary from the Management. The
absorption of Management staff into approved post is to be decided by the
Management and Department has nothing to do with them. The Department
has given aid only to the aided section. The petitioners have given students
strength in self-finance scheme also. Based on the students strength, staff
fixation has to be fixed, excess Teachers should be re-deployed. The
Management has not submitted any representation for fixing staff strength
or approval of appointment of the petitioners. The petitioners were
appointed in a non-sanctioned post and hence, they are not entitled to get
approval from the respondents 1 to 4 and any salary from the respondents
1 to 4 and prayed for dismissal of the Writ Petitions.
8.Mr.Vinoharan, learned counsel, representing Mr.G.Prabhu Rajadurai,
for the fifth respondent, submitted that the petitioners were appointed by
the previous Management and the fifth respondent School has no objection
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to approve the appointment of the petitioners, if the petitioners are
otherwise qualified and prayed for passing appropriate orders.
9.Heard the learned counsel appearing on either side and perused the
entire materials available on record.
10.From the materials available on record, it is seen that the students
strength of the fifth respondent School increased in the past few years.
Considering the increase of the students strength, the Parents-Teacher
Association, which is a statutory body, requested the fifth respondent School
to appoint more Teachers for the benefit of students. According to the
petitioners, the students strength in Tamil Medium is 1975 and in English
Medium is 696 from VI to XII standard and totally, 2671 students, at the
time of filing the Writ Petitions. The staff strength has to be fixed at 1:30, as
per the Right to Education Act and applying the said ratio, 22 additional
Teaching posts, namely 11 P.G Assistant and 11 B.T Assistant posts, are
necessary to the fifth respondent School. According to the petitioners, due
to the need they are appointed as B.T Assistant (English), B.T Assistant
(English), B.T Assistant (Science) and B.T Assistant (Science) respectively,
in the fifth respondent School on 05.07.2019, 05.07.2019, 01.08.2019 and
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09.07.2019 respectively and they are fully qualified to hold that posts. Even
though the petitioners have stated that the fifth respondent School has sent
representation for fixation of staff strength and for approval of the
appointment of the petitioners, the same is denied by the respondents 1 to
4. In any event, the staff strength has to be fixed on the 1st day of August of
every Academic Year, based on the students strength, as per the Judgment
of this Court in W.A(MD)No.76 of 2019 etc., batch, dated 31.03.2021
[The Secretary to Government, School Education Department Vs.
Iruthaya Amali and another]. The relevant portions read as follows:-
“94. Conclusive Discussions :
94.1. If we have the over all view of the aforesaid factual
matrix and discussion made exhaustively on the core issues as well as
peripheral issues arisen in this batch of cases for decision, we can divide
the same in three broad categories. They are :
i) Fixation of staff strength, identification and redeployment of
excess teachers to the needy schools, the mode of such activities and
the compendium of schedule for the same;
(ii) Right of the private aided institutions including the minority
run institutions to have both Tamil and English medium sections and the
right of the students to get free and compulsory education in both
mediums according to their choice and in that case, the necessity of
having enough or adequate staff strength based on the teacher-pupil
ratio and accordingly, the staff grant to be made by the State
Government for such Tamil / English medium sections, especially in the
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context of the provisions of the RTE Act, i.e., from the academic year
2010-11; and
(iii) Till the comprehensive legislation, namely, Tamil Nadu
Private Schools (Regulation) Act, 2018 and the Rules to be made in this
regard comes into effect, whether a set of mandatory directions to be
issued in this batch of cases, including compendium of schedule, can
stay for utility.
94.2. Insofar as the first category of issue is concerned, we have
already discussed those issues at length and have expressed our view,
accordingly, the school shall be the unit and not the educational agency
for fixing the staff strength, based on which, every year, staff strength
based on the teacher-pupil ratio shall be fixed on or before a particular
date by the Educational authorities followed by identification of excess
teaching staff in every such school and once excess teaching staff are
identified, those excess staff shall be redeployed to needy school under
the same management or different managements, as the case may be.
In this context, a strict time schedule shall be followed, both by the
Education Department as well as the Institutions and its managements
and there shall be no deviation of such compendium of schedule, which
we propose to prescribe in this Order.
94.3. Insofar as the second category of issue is concerned, no
doubt, by virtue of Section 14A of the Tamil Nadu Private Schools
(Regulation) Act, 1973, the Institution / School which did not get aid at
the time of or immediately before the academic year 1991-92 may not
be entitled for such grant after 1991-92. However if schools which were
getting aid from the Government for teaching and non-teaching staff
either at the time of or just before the commencement of the academic
year 1991-92 shall continue to receive the teaching aid subject to the
fixation of staff strength in every academic year. In those schools which
are getting aid continuously even beyond 1991-92, in case of any
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additional class or sections are opened, on need basis, because of the
enhancement of admissions in the school concerned, even those
additional standard or additional section shall not be entitled to get
teaching grant.
94.4. However, in respect of this category of schools who did
receive aid in 1991-92 and subsequently opened additional standard or
additional class and not received the aid by virtue of Section 14A of the
Act referred to above, those schools whether can continue to be in the
same status even beyond 2010-11 in view of the provisions of the RTE
Act?
94.5. In order to answer the said question, we answered in
favour of the schools in our discussions made in the earlier paras of this
order, accordingly, we deem it to hold that, the private aided schools
both minority and non-minority which were established and run with aid
either at the time or before commencement of academic year 1991-92,
though had not received aid for the additional standards or sections
opened subsequent to 1991-92, are entitled to get such aid for teaching
grant for such additional required staff for additional standard or class
opened in such school after the RTE Act came into effect, i.e., from
academic year 2010-11, for students of the age of 6 to 14 years only.
94.6. However, we are conscious of the effect of the aforesaid as
those Institutions may claim such teaching grant retrospectively from
2010-11. Therefore, we make it clear that, those Institutions shall not
be entitled to collect any arrear of staff grant for such additional staff for
the purpose of additional section or standard opened after 2010-11 in
an aided school as on 1991-92. However, they shall be entitled to get
such staff grant for additional staff for the purpose of additional class or
additional section only from the academic year 2021-22.
94.7. For the purpose of compendium of schedule to undertake
the exercise of fixing the staff strength based on the pupil strength in a
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particular academic year, identification of excess staff and the process
of completing the redeployment of excess teacher to the needy school,
we propose to provide a compendium of schedule in the operative
portion of this order, which shall be strictly followed and adhered to until
a comprehensive rules to be framed in the 2018 Act referred to above
comes into force.
95. In view of the aforesaid discussions, we are inclined to pass
the following orders in this batch of cases :
"(a) For the purpose of fixing the students-teacher ratio, the
provisions of RTE Act followed by the G.O. passed in this regard shall be
taken as the basis and the student pupil ratio shall be either 1:30 or
1:35 as the case may be as per the provisions of RTE Act
(b) For the purpose of fixing the staff strength of a school, school
shall be the unit and not the Educational agency / joint management /
corporate management.
(c) Once the staff strength is fixed in a particular academic year
of a school, it is the duty of the Educational authorities to identify the
excess staff and once the excess staff are identified, the same shall be
intimated to the school concerned as per the compendium of schedule
and thereafter, take steps to redeploy those excess staff to the needy
school.
(d) Once the excess staff are identified and after keeping the
Institution intimated, if those excess staff are redeployed to the needy
school within a stipulated time as per the compendium of schedule, the
redeployed staff shall join duty in the redeployed school.
(e) The following compendium of schedule, for the aforesaid
purpose, i.e., for fixing the teaching staff, identifying the excess
teaching staff and to redeploy the identified excess teaching staff to the
needy school, are framed as hereunder.
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(f) COMPENDIUM OF SCHEDULE :
(i) Closing of Admission for the purpose of fixation of staff
strength - 31st July of that academic year.
(ii) Fixation of staff strength of the school concerned,
based on the student strength as on 31st July as per the strength of the
pupil updated in the EMIS - 10th August.
(iii) The aforesaid fixation of staff strength of the school
shall be intimated to the school on or before 15th August.
(iv) On receipt of information from the Department, the
School concerned shall give its objection if any, based on the teacher-
pupil ratio on such fixation of staff strength by 25th of August.
(v) On receipt of such objection, if any, from the school
concerned, the final order of fixing the staff strength of the school, with
the provisional order for identification and redeployment of excess staff
shall be passed by the Department by 5th of September.
(vi) On receipt of such intimation of provisional order on
identification and redeployment of excess staff, the school under
corporate or joint management, shall act upon to give its consent to the
redeployment of excess teacher concerned after keeping the teacher
informed, to the Department, by 15th of September.
(vii) On receipt of such reply / intimation from the school
concerned, final redeployment order shall be made and communicated
to the school from where redeployment is made with a copy marked to
the teacher concerned and also to the needy school to which the
deployment is to be made, by 25th September.
(viii) On receipt of such orders by the teachers who are
redeployed, they shall report to the school where they have been
redeployed, on or before 30th September.
(ix) After making this redeployment process, still excess
staff are available, the Education Department shall take further effort,
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and those excess teachers still available at the hands of the Education
Department to be redeployed to a needy school beyond the corporate
management concerned, i.e., to any school located in the same
Educational District or Revenue District and even beyond which if still
excess staff are available, they can be redeployed to any school beyond
the Revenue District of course after getting the choice of such teacher
concerned and that shall be completed by 10th October.
(x) Those teachers who got such redeployment within the
Revenue District or beyond the Revenue District by orders to be issued
on or before 10th of October, shall report duty to the School where they
have been redeployed on or before 15th of October.
(xi) It is made clear that beyond 15th October of every
academic year, no redeployment of teacher shall be made or given
effect to.
(g) Once the teachers are redeployed from a particular school,
after the joining time as provided under the compendium of schedule,
the school from which the teacher has been redeployed cannot get
teaching aid for the next month salary for that redeployed teacher and
that salary shall be paid only through the school, where the teacher has
been redeployed, for which, teaching grant shall be sent by the
Educational authorities only to the needy school, where the teacher has
already been redeployed.
(h) While identifying the excess staff for redeployment purpose as
indicated above, regard has to be given that as far as possible junior
most teacher shall be subjected to such redeployment. Also in case of
high and higher secondary schools, while making such redeployment
based on teacher-pupil ratio, regard has to be given to ensure that,
atleast the minimum required teacher, for each subject being taught in
the school, are in possession.
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(i) Insofar as the teaching grant for the additional staff employed
in the already aided school as on the academic year 1991-92,
irrespective of the medium of instructions or irrespective of the students
strength, as per the teacher pupil ratio as indicated above especially in
the context of RTE Act and subsequent G.O issued in this regard, the
staff fixation shall be made and for those additional teaching staff, who
are pressed into service for additional standard or additional class
started, from the academic year 2021-22, staff grant shall be
sanctioned by the State Government as such sanctioning of staff grant
will be the essential requirement to meet the object of the provisions of
the RTE Act, otherwise, the Fundamental Right guaranteed to the
children between the age of 6 and 14 studying in those schools would
get affected.
(j) Irrespective of the medium of instruction, whether Tamil or
English, such a staff grant for additional sections or standard shall be
provided with the same condition as indicated above from the academic
year 2021-22.
(k) The State Government shall ensure that, the provisions of the
Tamil Nadu Tamil Learning Act, 2006 are implemented in letter and
spirit, of course subject to the judicial orders / court orders, if any,
passed in this regard for giving exemption to a group or class of
students as provided under Section 5 of the said Act.
(l) Until the Tamil Nadu Private Schools (Regulation) Act, 2018
and the Rules to be made thereunder are given effect to, these set of
directions issued in this order shall mandatorily be followed by the
stakeholders, i.e., both State Government as well as the Educational
Institutions.
(m) Once the 2018 Act and the Rules to be made in this regard
comes into effect and the issues which are covered under this order as
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per these mandatory directions are taken care, these mandatory
directions shall be ceased to be in execution.
(n) In order to give effect to such comprehensive legislation, i.e.,
2018 Act, the work of framing necessary Rules under the Act shall be
completed as early as possible.
(o) In view of the aforesaid, the G.O.Ms.No.165, School Education
[Tho.Ka.2(1)] Department, dated 17.09.2019 is hereby declared to be
inoperative.
(p) In view of the statistics given by the communication of the
Director of School Education and Director of Elementary Education,
dated 28.10.2020, as the import of the same in entirety has already
been quoted herein above, the Education Department shall take
endeavour to identify the exact excess teaching staff in various category
of Schools, i.e., Government schools (Panchayat Union, Municipality and
Corporation) Primary and Middle Schools, Government aided primary
and middle schools, Government High and Higher secondary schools
and aided High and Higher Secondary Schools separately by taking into
account the recent policy decision taken by the State Government,
whereby the superannuation age of the Government servants including
the teachers was enhanced from 59 to 60, thereby there would be no
superannuation of teachers for the next one year and accordingly, the
correct statistics shall be made ready within a period of two months.
(q) Once the statistics of excess teaching staff under various
category of schools as referred to above are made by taking into
account the superannuation age of teachers as 60, such excess teaching
staff identified in various category of schools with details of name of the
school both Government as well as Private aided, shall be uploaded in
the website / web portal of the School Education Department within the
aforestated period of two months.
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(r) Once such information are uploaded in the web portal by the
Education Department, after verifying the same, the private aided
schools, both minority and non-minority can point out any wrong
information if given with regard to the identification of the excess
teaching staff in the concerned school and such intimation or
clarification can be given by the school concerned through the
management to the DEO / CEO concerned within a period of one month
thereafter.
(s) On receipt of such objections, information / clarification from
the school concerned with regard to the alleged wrong information
provided by the State Government / Education Department in the web
portal as indicated above, the same shall be verified and rectified by the
Education Department, within one month thereafter.
(t) This exercise shall be completed on or before 31st July 2021,
so that the identification of excess staff and follow up action as indicated
in the compendium of schedule herein above can be undertaken and be
followed strictly.
(u) Till such excess teaching staff are identified under all category
of schools as indicated above, no recruitment shall be made by the
State Government / Education Department for the purpose of
appointment of teachers under various categories like Secondary grade
teacher, Graduate teacher, Post-Graduate teacher, Language teacher,
Physical education teacher etc.,
(v) Like that insofar as aided minority institutions are
concerned,if it is a stand alone institution, their right of appointing a
teacher in a vacancy within the sanctioned strength for the academic
year 2021-22 shall not be affected because of the identified excess
teachers in other schools. At the same time, even if the school is a
minority institution, however being administered by a joint management
or corporate management, in respect of those schools, even though
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vacancy arose within the sanctioned strength of such school or schools
under corporate management or joint management, those vacancies
shall not be filled up unless the excess staff identified in all other
schools under the same corporate or joint management are exhausted
fully and only after exhausting the redeployment process on all excess
teachers identified in the group of schools under the same corporate
management, they shall be free to make appointment afresh from open
market in the vacancy if any still, within the sanctioned strength."
11.In paragraph Nos.94 & 95 of the above said Judgment of the
Division Bench of this Court referred to above, which was relied on by the
learned counsel appearing for the petitioners, it has been held that the
Schools which are established before the Academic Year 1991-92 are
entitled to aid for the additional sections and additional staffs based on the
students strength. In view of the Right to Education Act and the Judgment
of the Division Bench of this Court, the fifth respondent School is directed to
send the details of the students strength for the Academic Year 2021-22,
additional sections and appointment of additional staffs, including the
petitioners, to the respondents 1 to 4. On receipt of proposal from the fifth
respondent School, the respondents 1 to 4 are directed to verify the same
and pass orders, fixing the staff strength based on the strength of the
students on 1st August, 2021, as per the direction of the Division Bench of
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this Court in W.A(MD)No.76 of 2019 etc., batch, dated 31.03.2021
[The Secretary to Government, School Education Department Vs.
Iruthaya Amali and another]. On such fixation, the fifth respondent
School is directed to send a proposal for approval of the appointment of the
petitioners to the fourth respondent. On receipt of such proposal, the
respondents 1 to 4 are directed to consider the proposal and if the
appointment of the petitioners are within the staff strength fixed by the
respondents 1 to 4 for the Academic Year 2021-22, approve their
appointments, if they are otherwise qualified. Till the said exercise is
completed, the respondents are restrained from terminating the services of
the petitioners.
12.With the above directions, these Writ Petitions are disposed of. No
costs.
02.07.2021
Index : Yes / No
Internet : Yes / No
ps
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Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The Secretary to the Government,
Department of School Education,
St. George Fort,
Chennai.
2.The Director of School Education,
DPI Compound,
College Road,
Chennai.
3.The Chief Educational Officer,
Tirunelveli,
Tirunelveli District.
4.The District Educational Officer,
Tenkasi,
Tirunelveli District.
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V.M.VELUMANI,J.
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W.P(MD)Nos.1400, 1401, 1452 &
1453 of 2020
02.07.2021
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