Madras High Court

The Director Of Elementary ... vs The Cor on 24 June, 2021

                                                                       W.A.Nos.1102, 1105 & 1106/2020


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 24.06.2021

                                                       CORAM

                         THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
                                                AND
                            THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                                         W.A.Nos.1102, 1105 and 1106 of 2020
                                   and C.M.P.Nos.13445, 13456 and 13461 and of 2020

                     1. The Director of Elementary Education,
                        College Road, Chennai-600 006.

                     2. The District Elementary Educational Officer,
                        Coimbatore, Coimbatore District.

                     3. The Assistant Elementary Educational Officer,
                        Coimbatore, Coimbatore District.         .. Appellants in all Writ
                                                                    Appeals/Respondents in
                                                                    all Writ Petitions
                                                         Vs.
                     The Correspondent,
                     St. Antony's Girls Primary School,
                     Near Head Post Office,
                     Coimbatore District-641 001.                .. Respondent in W.A.
                                                                    Nos.1102 & 1105/2020/
                                                                    Petitioner in W.P.
                                                                    Nos.31117 & 31130/2018
                     The Correspondent,
                     St. Agnes Middle School,
                     Eswaran Koil Street, Fort,
                     Coimbatore District-641 001.                .. Respondent in W.A.
                                                                    No.1106/2020 /Petitioner
                                                                    in W.P.No.31125/2018
                                                        ***

Prayer : Writ Appeals filed under Clause 15 of Letters Patent against the common order dated 02.06.2020 passed in W.P.Nos.31117, 31125 and 31130 of 2018.

                                                        ***
                                 For Appellants in :    Mr.V.Manoharan
                                  all Writ Appeals      Government Advocate

https://www.mhc.tn.gov.in/judis/
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                                                                             W.A.Nos.1102, 1105 & 1106/2020


                                      For Respondents :        Mr.Godson Swaminathan
                                       in all Writ Appeals     for M/s.Issac Chamber


                                             COMMON            JUDGEMENT

The appeals are preferred by the Education Department of the

State of Tamil Nadu challenging the orders passed by the writ Court

dated 02.06.2020 in W.P.Nos.31117, 31125 and 31130 of 2018.

2. The respondents in all these writ appeals are the religious

minority schools under the Congregation of the Franciscan Sisters of the

Presentation of the Blessed Virgin Mary and getting 100% aid from the

Tamil Nadu Government. The said Congregation is a corporate

management and is running about five schools in the Coimbatore

educational district.

2.1. The post of the Secondary Grade Teacher (SGT) fell vacant

on 01.06.2014 due to the retirement of the then incumbent on

31.05.2014 in the respondent School in W.P.No.31130 of 2018 and one

Mrs.A.Silviya was appointed as SGT with effect from 26.06.2014, who is

fully qualified, including the pass in Teachers Eligibility Test (TET) in

August 2013. Earlier, in the said School one more post of the SGT fell

vacant on 17.06.2011 due to the retirement of the then incumbent on

16.06.2011 and one Mrs.F.Pricilla Sheeba was appointed as SGT with

effect from 26.06.2014 and she is also fully qualified, including the pass

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in TET in August 2013. The said issue is pertaining to W.P.No.31125 of

2018. Similarly, the post of the SGT fell vacant on 26.06.2013 in the

respondent School in W.P. No.31117 of 2018, due to the transfer of the

then incumbent on 25.06.2013 and one Mrs.P.Sheeba was appointed as

SGT with effect from 26.06.2014, who is also a TET qualified teacher.

2.2. On 26.06.2014, the respondents schools submitted proposals

to the third appellant - the Assistant Elementary Educational Officer

requesting for approval of the appointment of these teachers and

disburse grant-in-aid towards their salary. Despite several requests made

by the respondents Schools, there was no response from the third

appellant. Hence, the proposals were once again submitted to the second

appellant - District Elementary Educational Officer on 05.09.2016

through the third appellant. The said proposals were rejected by the

second appellant on 15.03.2017 vide the impugned proceedings in the

writ petitions in O.Mu.Nos.4773/A4/2016, 4772/A4/2016 and

4774/A4/2016.

2.3. The rejection was on two grounds, namely, (a) while filling up

the post of SGT under same management, no objection certificate should

have been obtained ; and (b) secondly, the school had surplus teachers

under their management. The writ petitioners/respondents had

responded to the same stating that surplus posts in the other schools has

got no relevance, as the appointments were made only against

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sanctioned posts and most of the schools are in need of additional posts.

It was pointed out that the appointment of the SGTs was only against the

regular vacancies in the sanctioned posts assessed for Government

grant. Thus, contending the above, the impugned orders were challenged

by the respondents' schools in all the respective writ petitions.

2.4. The appellants had resisted the writ petitions contending that

only after obtaining the certificates from the DEEO that there are no

surplus teachers available, the approval can be granted for fresh

appointment, for which, the appellants placed reliance on Circular dated

27.12.2010. The appellants also relied upon G.O.Ms.No.1376, dated

06.07.1981, as per which, the corporate body running more than one

school, the schools shall be treated as one unit for the purpose of the

rules. Hence, the surplus teachers from the schools in the management

will have to be utilized for filling up the vacant post in the concerned

School.

2.5. The learned Single Judge had considered the submissions of

the leaned counsel for the respondents/writ petitioners' Schools and also

the Government Pleader and allowed the writ petitions directing the

competent authority to grant approval to the respective appointments of

the teachers by the respondents/writ petitioners' schools without insisting

for 'No Objection Certificate', if otherwise the teachers concerned were

qualified for regular appointment as SGT.

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2.6. While ordering so, the learned Single Judge framed an issue

as to whether the Government have regulatory power to insist on

obtaining 'No Objection Certificate' from the competent authority, while

filling up of sanctioned surplus posts in schools under the same

management, for an authoritative pronouncement by a Larger Bench,

and directed the Registry to place the writ petition before the Hon'ble

Chief Justice for constitution of a Larger Bench and the same is pending.

3. The learned Government Advocate placed reliance on

G.O.Ms.No.1376, dated 06.07.1981 contending that the corporate body

running more than one school, the schools shall be treated as one unit.

As the said G.O. has not been challenged, it is not open to the schools to

fill up the surplus posts, even though the same are sanctioned and it is

always open to the school to resort to redeployment and adjust the

surplus teachers among its schools run by the same management. The

Government Advocate also placed reliance on the interim directions given

by a Division Bench of this Court in W.A.(MD)Nos.76 of 2019 etc. batch

on 09.04.2019 (The Secretary to Government, Government of Tamil

Nadu, School Education Department V. Iruthaya Amali). It was further

contended that if the approval of the appointment is granted, despite

surplus teachers were available in other schools under the same

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management, it will have financial implications creating a dent in the

State's exchequer.

4. The learned Single Judge placed reliance on the judgment of

the Division Bench of this Court dated 29.11.2017 in W.A.(MD)Nos.1292

and 461 of 2014 (The Director of Elementary Education, College Road,

Chennai-600 006 and two others V. The Correspondent, St.Joseph's RC

Primary School, Palakurichy) holding that imposing a condition that the

no objection certificate has to be obtained from the educational authority

is contrary to law, as laid down by the Hon'ble Supreme Court in

T.M.A.Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and

also the decision in Malankara Syrian Cathlic College V. T.Jose and

Others, 2007 (1) SCC 386.

5. Even before the learned Single Judge, the Government

Advocate placed reliance on the decision of the Hon'ble Supreme Court in

Kolawana Gram Vikas Kendra V. State of Gujarat and Others,

(2010) 1 SCC 133, wherein, it was held that the insistence of obtaining

'No Objection Certificate' cannot be construed as interference in the

selection process and the insistence for producing 'No Objection

Certificate' does not amount to unconstitutional interference in the

internal working of the Minority institutions. Based on the same, the

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learned Government Advocate appearing for the appellants submitted

that it is well within the power of the Government to insist for 'No

Objection Certificate' in respect of the respondents/writ petitioners'

schools. In this regard, it is worthwhile to notice that the Division Bench

of this Court in the writ appeal referred to supra (St.Joseph's RC

Primary School case) had considered the judgment of the Hon'ble

Supreme Court in Kolawana Gram Vikas Kendra's case [(2010) 1

SCC 133] and distinguished the same on facts holding that factually in

that case, the minimum prescribed qualification and the Circular issued

therein regarding the vacancy as per the workload were challenged. The

said judgment was further distinguished on facts that there was no

dispute regarding the notification and eligibility of the teachers, who have

been appointed by the respective schools. Therefore, the judgment of the

Hon'ble Supreme Court is not applicable to the instant cases also.

6. Be that as it may, the judgment in W.A.(MD)Nos.76 of 2019

etc. batch, wherein, the interim order was granted by an earlier Division

Bench of this Court, was pronounced on 31.03.2021 by the Division

Bench after hearing all the learned counsels on either side finally (The

Secretary to Government, Government of Tamil Nadu, School

Education Department V. Iruthaya Amali, 2021 SCC OnLine Mad

1285). The facts in the said batch of cases is somewhat similar to the

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present cases. Though in the above writ appeal, one of the grounds

taken was that the teachers were not qualified and also did not pass the

TET, which was one of the essential qualifications for appointment as

SGT, in the present writ appeals, the teachers, who were appointed by

the respondents schools, admittedly, are qualified and also they have

passed TET. The Division Bench has elaborately considered various

issues, including the validity of G.O.Ms.No.165, which was issued on

17.09.2019, pursuant to the interim orders passed in the same batch on

09.04.2019. In paragraph 87 to 90 of the said judgment, the Division

Bench dealt with fixation of staff strength, identification and

redeployment of excess staff, in the following manner :

"87. We have given our anxious consideration to those submissions made on the very ticklish issue of fixation of staff strength, identification and redeployment of excess staff to the needy school and for fixing a compendium of schedule for undertaking the aforesaid job and by which authority the same shall be undertaken.

88. In this context, we have already recorded the consensus reached between the parties that school shall be the unit and it is not an educational agency, management or corporate management or joint management will be the unit for the purpose of fixing the staff strength for the school concerned. Once such a staff strength is fixed in a particular academic year on or before a particular date, where if there is any lack of staff, that school shall be treated as a needy school, to which, the required teaching staff either can be deployed from the excess staff or the school which is in need of the staff shall be permitted to fill up the post.

89. Once the school is found to be having excess staff such excess staff strength shall be identified and accordingly, the procedure that has been discussed above, as projected by both sides, can be adopted for redeployment of such excess teachers to the needy school.

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90. In order to complete this task of fixing the staff strength, identifying the excess staff and redeployment of excess staff to the needy school in a particular academic year is concerned, certainly a compendium of schedule is required to be adopted and once such compendium of schedule is adopted, the same shall be strictly followed and adhered to both by the Education Department as well as the management/institution/schools concerned. In fact both sides have consented to frame a compendium of schedule by this Court."

7. It is also held by the Division Bench in the said judgment that

when this Court posed a specific question to the Advocate General, who

appeared on behalf of the Government, as to whether any legislation was

enacted in order to administer the service issues, apart from the regular

establishment and administrative issues of the private schools in the

State, instead of having Government Orders, instructions and

regulations, it was brought to the knowledge of the Division Bench that

the State has already legislated an Act called 'the Tamil Nadu Private

Schools (Regulation) Act, 2018 (Tamil Nadu Act 35 of 2019), which was,

in fact, received the assent of the Hon'ble President of India on

07.08.2019 and only the framing of the rules under the said Act is yet to

be completed. As and when the rules are framed, the Act as well as the

rules would be notified and would brought into effect. In such

circumstances, the Division Bench thought it appropriate to issue

comprehensive directions till such time the comprehensive legislation

comes into force and given effect. While doing so, G.O.Ms.No.165, dated

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17.09.2019, which was issued pursuant to the interim directions given by

this Court, was declared to be inoperative.

8. Insofaras the fixation of staff strength based on the pupils

strength in a given academic year, identification of excess staff and the

process of completing the redeployment of excess teacher to the needy

school, the Division Bench had provided a 'Compendium of Schedule',

which shall be strictly followed, until the above referred comprehensive

rules to be framed in the 2018 Act come into effect.

9. It is also pointed out by the learned counsel for the respondents'

schools that the issue regarding obtaining 'No Objection Certificate' while

filling up the sanctioned post is no more a res integra and that has

already been decided in a series of decisions. At this juncture, it is apt to

state that a Co-ordinate Bench of this Court, while dealing with a similar

issue in respect of the Tamil Nadu Private Colleges (Regulation) Act,

1976, which has pari materia provisions to that of the Tamil Nadu Private

Schools (Regulation) Act, 1973 in P. Ravichandran vs. State of Tamil

Nadu and Others, 2013 (7) MLJ 641, relying upon a catena of

decisions on this issue, held as follows :

"17. A Division Bench of Madurai Bench of this Court in W.A.(MD) No. 462 of 2006, judgment dated 1.12.2006, considered the scope of Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 relying upon the earlier order passed on 13.8.2006, and

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held that for filling up an existing post in a Private Aided College, no prior approval is necessary as any such appointment shall be subsequently approved by the Department, and at that point of time the Department would have an opportunity to consider the availability of such post and rejection of approval on the ground that no prior approval was obtained before appointment, was set aside. Same is the view taken in the following orders of this Court:

(i) W.P. No. 30618 of 2005, order dated 21.9.2005;

(ii) W.P. No. 28396 of 2004, order dated 29.3.2006;

(iii) W.A. Nos. 92 & 93 of 2008, judgment dated 6.1.2010;

(iv) W.P.(MD) No. 174 of 2009, order dated 27.4.2010;

(v) W.A. Nos. 140, 811/2006 & 805/2007, judgment dt.

21.10.2010;

(vi) W.A. No. 2858 of 2010, judgment dated 21.3.2011;

(vii) W.A.(MD) No. 1088 of 2011, judgment dated 19.10.2011;

(viii) W.A. No. 2345 of 2011, judgment dated 5.3.2012;

(ix) (2012) 5 MLJ 670 (Dr. S. Sukumaran v. State of Tamilnadu) rendered by one of us (NPVJ); and

(x) W.A. No. 474 of 2013, judgment dated 3.4.2013.

Thus, the issue regarding seeking prior permission for filling up the vacant post in aided College within the academic year was already settled in series of decisions and all the above said orders are implemented by the respondents 1 and 2. In such circumstances, it is not open to the respondents to again and again contend that only after getting prior permission from the Director of Collegiate Education, vacant sanctioned posts can be filled up by the management.

***

20. In the light of the above findings as well as the decisions, we conclude this Judgment in the following manner:

(1) There is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.

(2) If the appointment made by the College Committee in the sanctioned vacant post is in violation of any of the statutory provision,

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it is open to the Regional Joint Director of Collegiate Education to deny grant-in-aid to the said person appointed in the vacant post.

(3) The teaching staff appointed must be fully qualified, whose qualification is approved by the University to which the college is affiliated. Insofar as the non-teaching staff are concerned, the candidate must possess the qualification prescribed by the Government.

(4) The College Committee while filling up the vacant post, should follow the procedures stated in Rule 11(1A) to 11(4)(ii).

(5) If there is no rival candidate for any post, the appointment is bound to be approved for the purpose of payment of pay and allowances, by the Regional Joint Director of Collegiate Education."

10. This judgment is followed by a learned Single Judge of this

Court in a recent order in Principal & Secretary, Lady Doak College

Vs. Director of Collegiat Education and another, 2020 SCC OnLine

Mad 13872, wherein, it was held as follows :

"17. Time and again, this Court has given orders reiterating the said legal position, if it is a minority institution the prior approval for making appointment or to fill up the vacancies which is already sanctioned, would not arise at all and therefore, such insistment cannot be said to be legally sustainable one. In that view of the matter, this Court has no hesitation to interfere with the impugned order.

11. The said principle is squarely applicable to the appellants

Department as well. In view of the above settled position and in the wake

of decisions of the recent Division Bench judgment in Iruthaya Amali's

case, there is no infirmity or irregularity in the common order of the

learned Single Judge dated 12.06.2020 and it does not warrant any

interference.

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12. For the foregoing reasons, the Writ Appeals are dismissed

and the order of the learned Single Judge is upheld. The appellants are

directed to comply with the directions issued by the learned Single Judge

within a period of eight weeks from the date of receipt of a copy of this

order. No costs. Consequently, connected miscellaneous petitions are