Madras High Court
The Director Of School Education vs The Correspondent on 11 December, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.A.(MD).Nos.2079 to 2083, 2085 to 2088, 2091, 2094, 2097 to 2106 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2023
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD).Nos.2079 to 2083, 2085 to 2088, 2091, 2094, 2097 to 2106 of 2023
and
C.M.P.(MD).Nos.16781, 16780, 16782 to 16784, 16786 to 16789, 16792, 16795,
16798, 16799, 16801, 16803, 16802, 16804 to 16808 of 2023
W.A.(MD)No.2079 of 2023:
1.The Director of School Education,
College Road,
Chennai – 600 009.
2.The Chief Educational Officer,
Madurai,
Madurai District.
3.The District Educational Officer,
Tirumangalam,
Madurai District. .. Appellants
Vs.
The Correspondent,
Sirumalar Girls Higher Secondary School,
Nagamalai – 625 019,
Madurai District. ... Respondent
Page 1 of 38
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PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying this Court
to set aside the order dated 02.09.2022 made in W.P.(MD) Nos.18329 of 2022 on
the file of this Court.
For Appellants : Mr.R.Baskaran
Additional Advocate General
assisted by Mr.D.Sadiq Raja
Additional Government Pleader
For Respondent : Mr.K.Ragatheesh Kumar
COMMON JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM,J.)
These intra-Court appeals are filed against the common order dated
02.09.2022 made in W.P.(MD) Nos.18329 & 17766 of 2022, 14453 of 2020,
16690 of 2022, 12889 of 2018, 4926 of 2020, 10214 of 2021, 19183 of 2020,
24920 & 17483 of 2019, 17406 of 2022, 18867 of 2019, 723 of 2022, 17221 of
2019, 1336 & 13792 of 2021, 16213 of 2022, 25448, 7820 & 7821 of 2019 and
16835 of 2022.
2.The following issues are mainly raised in these writ appeals and they
are:
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(1)The Teachers identified as surplus from minority Institutions
(Corporate Management).
(2)Non minority aided Institutions, where the Teachers are identified as
surplus in the District concerned.
(3)The Teachers, who were appointed by the minority Institutions and
not possessing the requisite educational qualifications of Teacher Eligibility
certificate.
(4)Subject conversion and appointments without prior permission.
(5)Single unit schools, where no surplus candidates are identified and
posts are sanctioned, but approval not granted.
(6)In respect of cases, where prior permission has been granted but the
appointments are not approved.
Let us now look into the relevant provisions of the statutes and Rules.
3.Section 26 of Tamil Nadu Recognized Private schools (Regulations)
Act (hereinafter referred to as 'the Act' for the sake of brevity), provides absorption
of Teachers or other persons of retrenchment. Accordingly, “Where any
retrenchment of any Teacher or other person employed in any private school is
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rendered necessary consequent on any order of the Government relating to
education or course of instruction or to any other matter, [or consequent on the
reduction in strength of the pupil's studying in any such private school] it shall be
competent for the Government or the school committee of any private school to
appoint such Teacher or other person in any school or Institution maintained by
the Government or in such private school, as the case may be. Explanation to this
Section reads as under:
“Explanation- For the purpose of this section, the strength of
the pupil's shall be determined in accordance with the norms fixed in the
Grant-in-Aid Code of the Tamil Nadu Education Department or under
any rule, regulation or order as may be made or issued by the
Government or the Director of school Education, from time to time, for
appointment of teachers or others in any private school.”
4.In the context of Section 26 of the Act, it is relevant to look into the
spirit of Section 14 of the Act, which deals with payment of grant, as under:
“14. Payment of grant. - [(1) Subject to such rules as may be
prescribed, the Government may continue to pay grant to the private
school receiving grant from the Government, before the date of
commencement of the academic year 1991-1992 at such rate and for
such purposes as may be prescribed.
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Explanation. - For the purposes of this sub-section, private
school receiving grant from the Government shall also include a private
school receiving grant from the Government only in respect of any class
or course of instruction.]
(2) The Government may 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 school, -
(i) which does not comply with any of the provisions of this Act
or any rules made or directions issued thereunder insofar as such
provisions, rules or directions are applicable to such private school, or
(ii) in respect of which the pay and allowances payable to any
teacher or other person employed in such private school are not paid to
such teacher or other person in accordance with the provisions of this
Act or the rules made thereunder, or
(iii) which contravenes or fails to comply with any such
conditions as may be prescribed.
(3) Before withholding the grant under sub-section (2), the
Government shall give the educational agency an opportunity of making
its representation.”
5.Regarding the requirements for payment of grant, Rule 11 of the Tamil
Nadu Recognized Private schools (Regulation) Rules, 1974 (hereinafter referred to
as 'Rules' for the sake of brevity) states as under:
“11. Payment of grant. –(1) Recognised Private schools may be
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paid grants from State funds directly or through Panchayat Unions. Such
payment of grants shall be subject to Government orders and instructions
issued, from time to time:
Provided that, schools whose recognition have been withdrawn
shall not be entitled to any grant for the period of such withdrawal of
recognition.”
6.Rule 15 enumerates qualifications, conditions of service of Teachers
and other persons. Sub Rule 1 to Rule 15 reads as under:
15. Qualifications, conditions of service of teachers and
other persons. –(1) 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 overall
financial considerations.”
7.Rule 6 of the Tamil Nadu Minority schools (Recognition and Payment
of Grant) Rules, 1977 also deals with the payment of grant as under:
“6. Payment of grant. - (1) Minority schools may be paid grants subject to
the orders and instructions issued by the Government from time to time.
The rate at which, and the purpose for which, the grant may be paid shall
be as specified in Annexure II appended to these rules.
Annexure II
Payment of Grant
[Vide Rule 6(1)
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1. Minority schools may be paid grants on the basis of orders from time to
time.
2. The grants payable to minority schools are the following namely:-
(1) Staff grant. - The management may be paid full grant to cover the
entire approved expenditure on pay and other allowances of the teaching
and non-teaching staff including other servants paid from contingencies.
(2) Maintenance grant. - (a) Pre-primary, Primary and Middle school.
The management may be paid up to 6 per cent of the assessed teaching
grant as maintenance grant for a calendar year.
(b) High school. - The management may be paid maintenance grant equal
to the approved expenditure for the preceding financial year on rents,
taxes, ordinary repairs, upkeep contingencies and other miscellaneous
items, after deducting the Management's contribution determined by
Government from time to time.
(3) Training Institutes. - The training institutes may be paid teaching
grant. Such grant shall be assessed on the basis of 2/3 of the net approved
expenditure on pay to the staff, rent, taxes, repairs and contingencies and
of the expenditure on dearness allowance, city compensatory allowance
and house rent allowance.
(4) Anglo-Indian schools. - The Anglo-Indian schools may be paid full
teaching grant. Such grant shall be assessed to the Anglo-Indian schools
on the basis of the approved expenditure on pay and allowances to the
staff, rent, taxes, repairs and contingencies after deducting the actual fee
income.
Such schools may also be paid other grants specially ordered.”
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8.Holistic reading of the provisions of the Act and Rules would
expressly reveal that the appellant department is empowered to deal with surplus
Teachers, who all are identified during the course of inspection by the competent
Educational Authority. It shall be competent for the Government or the school
Committee or any private schools to appoint such Teachers or other persons in any
school or the Institutions managed by the Government or in such private school as
the case may be. Therefore, the authorities competent are empowered to redeploy
the surplus Teachers either in the private school or in a Government school or in
any other school, where vacancy arises and there is no restriction for deployment
of the Teachers from one school to any another school including the minority
Institutions, if teaching or non-teaching staffs are found in surplus.
9.Surplus is more than the needs. Thus, declaring teaching and non-
teaching staff as surplus is an administrative exigency. In the Education
Department, the surplus teaching and non-teaching staff are not ousted, but they
are accommodated in the available vacancies within the school or in any other
school, where their services are required. Declaring a teaching or non-teaching
staff as surplus, per se would not provide a cause to file a writ petition under
Article 226 of the Constitution of India and such writ petitions are not
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entertainable. Declaring a teaching or non-teaching staff as surplus do not violate
the service conditions, but it is incidental to service. However, such declaration of
surplus is to be made only in respect of the juniormost teaching or non-teaching
staff in the school concerned. Such administrative exigency, which is incidental to
service, would not provide an absolute right for an employee to claim a particular
place or post. Status cannot be claimed in public posts, so also, place cannot be a
choice for an employee.
10.Section 14 of the Act provides that subject to such Rules as may be
prescribed by the Government, the grant in aid may be sanctioned. Therefore, the
Government is empowered to prescribe Rules. In the absence of Rules, orders or
instructions as the case may be issued for providing grant in aid to the private
aided and minority schools. Therefore, payment of grant is not automatic, but
subject to the Rules, orders or instructions issued by the Government in force and
subject to the satisfaction of the Government with reference to conditions
stipulated for sanctioning grant-in-aid.
11.Rule 11 stipulates that schools, whose recognition has been
withdrawn, shall not be entitled to any grant for the period of such withdrawal of
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recognition. Sub Rule 1 to Rule 11 unambiguously stipulates that recognized
private schools may be paid grants from the State funds directly or through
Panchayat Union. Such payments of grant shall be subject to the Government
Orders and instructions issued from time to time.
12.The spirit of the Rules indicates that the payment of grant cannot be
an absolute right, but subject to the Act, Rules, Government Orders and
instructions, which all are to be complied with scrupulously. More so, Sub Rule 1
to Rule 11 expressly states that the recognized private schools may be paid grants
from the State funds. Therefore, it is to the subjective satisfaction of the
Government, its Orders and instructions to sanction grant in aid from time to time.
13.In brevity, Rule 15 speaks about the qualifications, conditions of
service of Teachers and other persons. Sub Rule 1 to Rule 15 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
overall financial considerations”.
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14.Therefore, the posts are to be sanctioned by the Director of school
Education. If the post has not been sanctioned, then payment of grant cannot be
claimed. Sanctioning of posts are to be made from time to time with reference to
the academic requirements, Teacher-Pupil ratio and overall financial
considerations. Therefore, three essential requirements are to be complied with,
i.e.,(a) academic requirements are to be ascertained, (b) Teacher-Pupil ratio is to be
taken into account and (c) overall financial consideration of the State and its
implication are also to be taken into consideration.
15.Rule 15(4) enumerates that appointments to various categories of
Teachers shall be made by following methods. First preference is to be given to
the qualified Teachers working in the school by way of promotion. If no other
qualified persons employed in the same school are available, then appointment can
be made from any other school and thereafter, by way of direct recruitment. In
respect of the Corporate body running more than one school, the schools under
that corporate body shall be treated as one Unit for the purpose of this Rule. Thus,
Rule 15 stipulates that preference is to be given to the qualified Teachers working
in the school by way of promotion and if there is no other qualified Teachers, then
alone they can appoint Teachers from any other school or thereafter by way of
direct recruitment.
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16.When the service conditions of Teachers in Rule 15 say so, similar
procedure are to be adopted for the purpose of regulating the surplus Teachers,
who all are identified during the inspection by the competent authorities of the
education department.
17.Therefore, on identification of surplus Teachers, they are to be
redeployed in the vacancies available in the same school or in any other school
within the Corporate Management / Joint Management as the case may be and if
no posts are available either in the school, in which the Teacher is working or in
the Corporate Management or in the Joint Management, then alone such Teachers
are to be redeployed in any other school, where the vacancies are available. The
said procedure is settled by the Division Bench of this Court in the case of
Secretary to Government, Government of Tamil Nadu, school Education
Department and others vs. Iruthaya Amali and another reported in [W.A.
(MD)76 of 2019 etc., batch] dated 31.03.2021.
18.In the above judgment, the relevant reliefs granted in para 95 are
extracted hereunder for the purpose of considering the present writ appeal:
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“95. In view of the aforesaid discussions, we are inclined to pass the
following orders in this batch of cases:
.....
(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.
......
(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 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
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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."
19.As far as para 95(i) of the judgment in Iruthaya Amali's case is
concerned, that has been stayed by the Hon'ble Supreme Court and therefore, we
are not inclined to consider the said relief granted in the said judgment.
20.The learned Additional Advocate General and the respective learned
counsels appearing on behalf of the respondent/Teacher have no serious objections
in implementing para 95(b), (u) and (v) of the judgment in Iruthaya Amalai's Case.
21.However, it is necessary to clarify that the staff strength of the school
is to be fixed on unit basis and as decided by the Division Bench at para 95(b) of
the Iruthaya Amali's case. There is no dispute that the school shall be a unit and
not the educational agencies/joint management/corporate management for the
purpose of fixation of cadres. However, for the purpose of identification of
surplus and redeployment, para 95(v) is to be followed. Thus the school shall be a
unit for the purpose of fixation of cadre strength and for redeployment. The relief
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granted in para 95(v) in Iruthaya Amali's case is to be adopted by accommodating
the surplus Teachers initially in the school concerned or in the corporate
management/joint management and if no vacancies are available either in the
school or in corporate management/joint management, thereafter, those Teachers
can be accommodated in any other school, where the vacancies are available for
redeployment.
22.The learned Additional Advocate General made an undertaking that
after redeployment of surplus Teachers from one school to another school, if
student strength has been increased in compliance with Pupil-Teacher ratio or
additional posts are sanctioned, then those redeployed Teachers will be reverted
back to his/her parent school or Unit as the case may be based on their respective
seniority. It is needless to state that the junior most Teacher has to be declared as
surplus. If more Teachers are found surplus over and above the sanctioned
strength and after declaring those junior most Teachers as surplus and they being
redeployed to any other school, thereafter on arising of vacancy in their parent
school, they must be redeployed to their parent school and in this regard, the
appellants have no objections and such a procedure is to be followed scrupulously
wherever required.
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23.As far as the ground raised regarding the requisite qualification of
pass in Teachers Eligibility Test, there is a controversy, in view of the ratio laid
down by the Constitution Bench of the Hon'ble Supreme Court in the case of
Pramathi Educational and Cultural Trust and others vs. Union of India [2014 4
MLJ 486(SC)], however, the two judges bench of the Hon'ble Supreme Court
subsequently in the case of Ashwini Thanappan vs. Director of Education and
another [(2014) 8 SCC 272] referred the matter by stating as follows:
1.Issue notice. It is submitted by the learned Counsel for the
Petitioner that interpretation of Article 27 arises for consideration of this
Court. It is also pointed out by the learned Counsel that the judgment
reported in Pramati Educational and Cultural Trust (r) and Others Vs.
Union of India (UOI) and Others, is inconsistent with the judgment of the
Constitution Bench of this Court in P.A. Inamdar and Others Vs. State of
Maharashtra.
2.Prima facie, we are of the opinion that the submission requires
a further examination. If such examination is to be undertaken, the
implications will have impact on all the States, in which case perhaps it is
desirable to put all the States on notice and matter be heard by a Bench of
appropriate strength. We, therefore, deem it appropriate to direct the
Registry to place the matter before Hon'ble the Chief Justice of India for
appropriate directions in the matter.”
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24.While referring the matter, the Hon'ble Supreme Court considered the
larger repercussions in respect of the observations made in Pramathi's case, since
there is a possibility of discrimination amongst the Teachers in the matter of
appointment. If exemptions are granted from possessing the requisite educational
qualification of TET only for the minority Institution, then there will be two set of
Teachers, who all are qualified and unqualified working in non-minority schools
and minority schools. This will result in an anomalous situation while identifying
the surplus Teachers and at the time of redeployment.
25.In the matter of Teachers Eligibility Test, the learned Additional
Advocate General relied upon Section 23(1) of the Right of Children to Free and
Compulsory Education Act, which reads as under:
“23 Qualifications for appointment and terms and conditions of
service of teachers. ?
(1) Any person possessing such minimum qualifications, as laid
down by an academic authority, authorised by the Central
Government, by notification, shall be eligible for appointment as a
teacher.”
26.In exercise of powers under the said Act, the National Council for
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Teachers Education, admittedly, issued notification that the pass in Teachers
Eligibility Test is the mandatory qualification for appointment to the teaching post
all over the Country. Therefore, any exemption from the educational qualification
would result in discrimination amongst the Teachers and would create an
anomalous situation in the matter of declaring Teachers as surplus and
redeployment of those Teachers in minority schools and non-minority schools.
27.Since the matter has already been referred by two Judges Bench of
the Hon'ble Supreme Court, we are leaving the issue regarding Teachers Eligibility
Test qualification open at present in the context of Pramathi's case. But regarding
Teacher Eligibility Test, other perspective is possible and required with reference
to the Tamil Nadu Recognized Private Schools (Regulations) Act and Rules in
force.
28.It is relevant to look into the various judgments of the Hon'ble
Supreme Court in the matter of prescribing educational qualifications, salary,
service conditions applicable to State aided Institutions including minority
Institution. The Apex Court time and again considered the right to the minorities
under Article 30(1) of the Constitution of India.
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29 (a). In the case of Sk.Md.Rafique Vs. Managing Committee,
ContaiRahamania High Madrasah and Ors, reported in W.P.No.4511 of 2015
MANU/SC/0004/2020, the Hon'ble Supreme Court of India held as follows:
Article 30(1) gives two rights to the minorities,
(1) to establish and
(2) to administer, educational institutions of their choice.
The right to administer cannot obviously include the right to mal-
administer. The minority cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings, without any
competent teachers, possessing any semblance of qualification, and which
does not maintain even a fair standard of teaching or which teaches
matters subversive of the welfare of the scholars. It stands to reason, then,
that the constitutional right to administer an educational institution of
their choice does not necessarily militate against the claim of the State to
insist that in order to grant aid the State may prescribe reasonable
Regulations to ensure the excellence of the institutions to be aided.
Khanna, J. in his concurring opinion
Regulation which is designed to prevent maladministration of an
educational institution cannot be said to offend Clause (1) of Article 30. At
the same time it has to be ensured that under the power of making
Regulations nothing is done as would detract from the character of the
institution as a minority educational institution or which would impinge
upon the rights of the minorities to establish and administer educational
institutions of their choice.
Balance has, therefore, to be kept between the two objections that of
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1.ensuring the standard of excellence of the institution
2.preserving the right of the minorities to establish and administer their
educational institutions.
Regulations which embrace and reconcile the two objectives can be
considered to be reasonable. a law which interferes with a minority's
choice of qualified teachers or its disciplinary control over teachers and
other members of the staff of the institution is void as being violative of
Article 30(1). It is, of course, permissible for the State and its educational
authorities to prescribe the qualifications of teachers, but once the
teachers possessing the requisite qualifications are selected by the
minorities for their educational institutions, the State would have no right
to veto the selection of those teachers.
(b) In the case of Secretary, Malankara Syrian Catholic College Vs.
T.Jose and Ors, reported in MANU/SC/5280/2006, the Hon'ble Supreme Court of
India held as follows:
“19. The general principles relating to establishment and
administration of educational institution by minorities may be
summarized thus:
(i) The right of minorities to establish and administer educational
institutions of their choice comprises the following rights:
a) To choose its governing body in whom the founders of the institution
have faith and confidence to conduct and manage the affairs of the
institution;
b) To appoint teaching staff (Teachers/Lecturers and Head-
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masters/Principals) as also non-teaching staff; and to take action if
there is dereliction of duty on the part of any of its employees;
c) To admit eligible students of their choice and to set up a reasonable
fee structure;
d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure
equality with the majority and not intended to place the minorities in a
more advantageous position vis-à-vis the majority. There is no reverse
discrimination in favour of minorities. The general laws of the land
relating to national interest, national security, social welfare, public
order, morality, health, sanitation, taxation etc. applicable to all, will
equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not
absolute. Nor does it include the right to maladminister. There can be
regulatory measures for ensuring educational character and standards
and maintaining academic excellence. There can be checks on
administration as are necessary to ensure that the administration is
efficient and sound, so as to serve the academic needs of the institution.
Regulations made by the State concerning generally the welfare of
students and teachers, regulations laying down eligibility criteria and
qualifications for appointment, as also conditions of service of
employees (both teaching and non- teaching), regulations to prevent
exploitation or oppression of employees, and regulations prescribing
syllabus and curriculum of study fall under this category. Such
regulations do not in any manner interfere with the right under Article
30(1).
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(iv) Subject to the eligibility conditions/qualifications prescribed by the
State being met, the unaided minority educational institutions will have
the freedom to appoint teachers/Lecturers by adopting any rational
procedure of selection.
(v) Extension of aid by the State, does not alter the nature and character
of the minority educational institution. Conditions can be imposed by the
State to ensure proper utilization of the aid, without however diluting or
abridging the right under Article 30(1).
20. Aided institutions give instruction either in secular
education or professional education. Religious education is barred in
educational institutions maintained out of State fund. These aided
educational minority institutions providing secular education or
professional education should necessarily have standards comparable
with non-minority educational institutions. Such standards can be
attained and maintained only by having well qualified professional
teachers. An institution can have the services of good qualified
professional teachers only if the condition of service ensures security,
contentment and decent living standards. That is why State can regulate
the service conditions of the employees of the minority educational
institutions to ensure quality of education. Consequently, any law
intended to regulate the service conditions of employees of educational
institutions will apply to minority institutions also, provided that such
law does not interfere with the overall administrative control of the
managements over the staff.”
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(c) In the case of State of Kerala Vs. Very Rev.Mother Provincial,
reported in MANU/SC/0065/1970, the Constitution Bench of the Hon'ble
Supreme Court of India emphatically held as follows:
“9. The next part of the right relates to the administration of
such institutions.
Administration means 'management of the affairs' of the institution.
This management must be free of control so that the founders or their
nominees can mould the institution as they think fit, and in accordance
with their ideas of how the interests of the community in general and the
institution in particular will be best served. No part of this management
can be taken away and vested in another body without an encroachment
upon the guaranteed right.
10. There is, however, an exception to this and it is that the
standards of education are not a part of management as such.
These standards concern the body politic and are dictated by
considerations of the advancement of the country and its people.
Therefore, if universities establish syllabi for examinations they must be
followed, subject however to special subjects which the institutions may
seek to teach, and to a certain extent the State may also regulate the
conditions of employment of teachers and the health and hygiene of
students. Such regulations do not bear directly upon management as such
although they may indirectly affect it. Yet the right of the State to regulate
education, educational standards and allied matters cannot be denied.
The minority institutions cannot be allowed to fall below the standards
of excellence expected of educational institutions, or under the guise of
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exclusive right of management, to decline to follow the general pattern.
While the management must be left to them, they may be compelled to
keep in step with others.
These propositions have been firmly established in the State Bombay v.
Bombay Education Society MANU/SC/0029/1954 : [1955]1SCR568 , The
State of Madras v. S.C. Dorairajan MANU/SC/0007/1951 :
[1951]2SCR525 , In re the Kerala Education Bill 1957
MANU/SC/0029/1958 : [1959]1SCR995, Sidharajbhai v. State of Gujarat
MANU/SC/0076/1962 : [1963]3SCR837, Katra Education Society v.
State of U.P. and Ors. [1966] 3 S.C.R. 728 Gujarat University,
Ahmedabad v. Krishna Ranganath Mudholkar and Ors. [1963] Su 1 S. C.
R. 112 and Rev. Father W. Proost and Ors. v. State of Bihar
MANU/SC/0248/1968 : [1969]2SCR73 . In the last case it was said that
the right need not be enlarged nor whittled down. The Constitution speaks
of administration and that must fairly be left to the minority institutions
and no more. Applying these principles we now consider the provisions of
the Act.”
(d) In the case of All Saints High school, Hyderabad and Ors Vs.
Government of Andhra Pradesh and Ors, reported in MANU/SC/0059/1980, the
Three Judges Bench of the Hon'ble Supreme Court of India made the following
observations:
“3. These decisions show that while the right of the religious and
linguistic minorities to establish and administer educational institutions of
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their choice cannot be interfered with, restrictions by way of regulations
for the purpose of ensuring educational standards and maintaining the
excellence thereof can be validly prescribed. For maintaining educational
standards of an institution, it is necessary to ensure that it is competently
staffed. Conditions of service which prescribe minimum qualifications for
the staff, their pay scales, their entitlement to other benefits of service and
the laying down of safeguards which must be observed before they are
removed or dismissed from service or their services are terminated are all
permissible measures of a regulatory character.
As observed by Das C.J., in Re: Kerala Education Bill, (supra) "Right to
administer cannot obviously include the right to mal-administer", and in
the words of Shah J., in Rev. Sidhajbhai, (supra) "The right is subject to
reasonable restrictions in the interest of efficiency of instruction,
discipline, health, sanitation, morality, public order and the like".
Hidayatullah C.J. said in Very Rev. Mother Provincial (supra) that
"Standards of education are not a part of management as such", that
the "minority institutions cannot be permitted to fall below the standard
of excellence expected of educational institutions" and that "the right of
the State to regulate education, educational standards and the allied
matters cannot be denied". Justice Jaganmohan Reddy, in D.A.V. College
(supra) reiterated while upholding Clause 18 of the Guru Nanak
University, Amritsar Act, 1961 that regulations governing recruitment and
service conditions of teachers of minority institutions, which are made in
order to ensure their efficiency and excellence do not offend against their
right to administer educational institutions of their choice
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27. Another important factor which has to be noticed is that the terms in
which Article 30 is couched are absolute and unconditional as compared
to Article 19 which is hedged in by reasonable restrictions which may be
imposed by the State in public interest. Thus, in a way the fundamental
right contained in Article 30 is more effective and wider than the
fundamental rights contained in Part III of the Constitution. This,
however, does not mean that the State is completely deprived of even the
right to regulate the working of the minority institutions and to make rules
in order to improve the standards of education imparted therein so as to
achieve excellence and efficiency in the educational standards of these
institutions. Regulatory measures cannot in any sense be regarded as
placing restrictions or curbing the administrative autonomy of the
institutions concerned. But care must be taken by the State to see that in
passing regulatory measures it does not transcend its limits so as to
interfere with the internal administration of the management of the
institutions concerned so as to violate the spirit and policy of Article 30.
The question of the scope and ambit of Article 30 of the Constitution of
India was very exhaustively considered as far back as in 1959 in Re:
Kerala Education Bill (Supra). This case arose when the President of
India called for the opinion of the Supreme Court on a Reference being
made to it under Article 143(1) of the Constitution of India. The
Reference was heard by 7 Judges of this Court out of which 6 of them
excepting Venkatarama Aiyar, J. gave a unanimous opinion regarding
various clauses of the Bill. The provisions of the Kerala Education Bill are
not pari materia with the provisions of the Act with which we are
concerned in this case, but this Court while delivering its opinion has laid
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down a number of salutary principles which throw a flood of light on the
scope and interpretation of Article 30 of the Constitution of India.”
(e) In Re The Kerala Education Bill, 1957 Reference under Article
143(1) of the Constitution of India, reported in AIR 1958 SC 956, the Seven
Judges Bench of the Hon'ble Supreme Court of India made the following
observations:
''We have to reconcile between these two conflicting interests and
to give effect to both if that is possible and bring about a synthesis between
the two. The Directive Principles cannot ignore or override the fundamental
rights but must, as we have said, subserve the fundamental rights. We have
already observed that Article 30(1) gives two rights to the minorities, (1) to
establish and (2) to administer, educational institutions of their choice. The
right to administer cannot obviously include the right to maladminister. The
minority cannot surely ask for aid or recognition for an educational
institution run by them in unhealthy surroundings, without any competent
teachers, possessing any semblance of qualification, and which does not
maintain even a fair standard of teaching or which teaches matters
subversive of the welfare of the scholars. It stands to reason, then, that the
constitutional right to administer an educational institution of their choice
does not necessarily militate against the claim of the State to insist that in
order to grant aid the State may prescribe reasonable regulations to ensure
the excellence of the institutions to be aided.
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If the State grants aid to an educational institution, it must have the power
to see that the institution is properly and efficiently run, that the education
imparted therein is of the right standard, that the teachers possess the
requisite qualifications that the funds are duly applied for the purpose of the
institution and the like. In other words, the State must have large powers of
regulation and of control over State-aided educational institutions. These
powers must be liberally construed, and the decision of the legislature as to
what they should be is not to be lightly interfered with, as it is presumed to
know best the needs of the State the nature and extent of the evils rampant
therein and the steps that should be taken to remedy them. But the power to
regulate does not, in general, comprehend the power to prohibit, and the
right to control the affairs of an institution cannot be exercised so as to
extinguish it.''
(f) In the case of The Ahmedabad St.Xaviers' College Society and
another Vs. State of Gujarat and another, reported in 1974 1 SCC 717, the
Hon'ble Supreme Court of India held as follows:
“It is permissible for the State to prescribe reasonable
regulations and make it a condition precedent to the according of
recognition or affiliation to a minority institution. It is not, however,
permissible to prescribe conditions for recognition or affiliation which
have the effect of impairing the right or the minority to establish and
administer their educational institutions. Affiliation and recognition are
not mentioned in Art. 30(1). The position all the same remains that
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refusal to, recognise or affiliate minority institutions unless the
minorities surrender the right to administer those institutions would
have the effect of rendering the right guaranteed by Art. 30 (1) to be
wholly illusory and indeed a teasing illusion. An educational institution
can hardly serve any purpose or put to any practical utility unless it is
affiliated to a University or is otherwise recognised like other
educational institutions. The right conferred by Art. 30 is a real and
meaningful right. Article 30(1) was intended to have a real significance
and it is not permissible to' construe it in such a manner as would rob it
of that significance.
The argument that unless law is wholly destructive of the right of
minorities under Art.30(1) it would not be liable to be struck down is
untenable and runs counter to the plain language of Art.13. The law
which interferes with the minorities' choice of a governing-body or
management council would be violative of the right guaranteed by Art.
30 (1). Section 33A which provides for a new governing body for the
management of the college and also for selection committees as well as
the constitution thereof should be quashed so far as the minority
educational institutions are concerned because of the contravention of
Art. 30(1).
The law which interferes with a minority's choice of qualified teachers
or its disciplinary control over teachers and other members of the staff
of the institution is void as being violative of Art. 30(1).
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(g) In the case of Board of Secondary Education Vs. Director of Public
Instructions, reported in 1998 8 SCC 555, the Hon'ble Supreme Court of India
held as follows:
''The decisions of this Court make it clear that in the matter of
appointment of the Principal, the management of a minority
educational institution has a choice. It has been held that one of the
incidents of the right to administer a minority educational institution is
the selection of the Principal. Any rules which take away this right of
the management have been held to be interfering with the right
guaranteed by Article 30 of the Constitution. In this case, both Julius
Prasad selected by the management and the third respondent are
qualified and eligible for appointment as Principal according to rules.
The question is whether the management is not entitled to select a
person of their choice. The decisions of this Court including the decision
in State of Kerala v. Very Rev. Mother Provincial, and Ahmedabad St.
Xavier's College Society v.State of Gujarat, make it clear that this right of
the minority educational institution cannot be taken away by any rules or
regulations or by any enactment made by the State. We are, therefore, of
the opinion that the High Court was not right in holding otherwise. The
State has undoubtedly the power to regulate the affairs of the minority
educational institutions also in the interest of discipline and excellence.
But in that process, the aforesaid right of the management cannot be
taken away, even if the Government is giving hundred per cent grant.''
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(h) In the case of T.M.A.Pai Foundation & Ors. Vs. State of Karnataka,
reported in 2002 8 SCC 481, the Eleven Judges Bench of the Hon'ble Supreme
Court of India held as follows:
“So far as the statutory provisions regulating the facets administration is
concerned, in case of an unaided minority educational institution, the
regulatory measure of control should be minimal and the conditions of
recognition as well as conditions of affiliation to an University or Board
have to be complied with, but in the matter of day-to-day Management, like
appointment of staff, teaching and non-teaching and administrative control
over them, the Management should have the freedom and there should not
be any external controlling agency. However, a rational procedure for
selection of teaching staff and for taking disciplinary action has to be
W.P.No.4511 of 2015 evolved by the Management itself. For redressing the
grievances of such employees who are subjected to punishment or
termination from service, a mechanism will have to be evolved and in our
opinion, appropriate tribunals could be constituted, and till then, such
tribunal could be presided over by a Judicial officer of the rank of District
Judge. The state or other controlling authorities, however, can always
prescribe the minimum qualifications, salaries, experience and other
conditions bearing on the merit of an individual for being appointed as a
teacher of an educational institution.
Regulations can be framed governing service conditions for teaching and
other staff for whom aid is provided by the State without interfering with
overall administrative control of Management over the staff,
Government/University representative can be associated with the
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selection committee and the guidelines for selection can be laid down. In
regard to un-aided minority educational institutions such regulations,
which will ensure a check over unfair practices and general welfare, of
teachers could be framed.”
30.The Eleven Judges Bench of the Apex Court, in T.M.A.Pai
Foundation's case in unequivocal terms held that the State or other controlling
authorities, however, can always prescribe the minimum qualification, experience
and other conditions bearing on the merit of an individual for being appointed as a
Teacher or a principal of any educational institution. Regulations can be framed
governing service conditions for teaching and other staff for whom aid is provided
by the state, without interfering with the overall administrative control of the
management. Thus, clear distinction had been drawn by the Eleven Judges Bench
of the Apex Court regarding the power of the State to stipulate minimum
qualifications, salary, experience and other service conditions in respect of the
State aided Institutions including minority.
31.The Special Act will prevail over the general laws. The Act is a
special legislation, which would be applicable in respect of State aided schools
including minority schools. Even in case, the Right of Children to Free and
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Compulsory Education Act is said to be inapplicable in Pramathi's case by the
Apex Court, there is no impediment for the State to prescribe the qualifications of
Teachers Eligibility Test under the Tamil Nadu Recognized Private Schools
(Regulations) Act and the Rules in force. Such decision has been upheld by the
Eleven Judges Bench of the Apex Court in T.M.A.Pai Foundation's case.
Therefore, the right to administer means right to administer in accordance with
law. Thus the Act and Rules enacted by the State regulating the educational
qualifications, salary and service conditions are valid and enforceable to all state
aided schools including minority.
32.Right to administer by the minority would not exempt the power of
the State from regulating the educational qualifications, salary and other service
conditions for the teaching and non-teaching staff in order to maintain uniform
standards in the matter of education. In this context, Section 3 of the Act provides
power of the Government to regulate the school education. Accordingly, the
Government may regulate different stage of education and courses of instruction
in private schools. In T.M.A.Pai Foundation's case the Eleven Judges Bench held
that regulations can be framed governing the service conditions for teaching and
other staff, for whom aid is provided by the State without interfering over all
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administrative control of management. When the Eleven Judges bench has been
distinguished the power of State to enact Act and Rules governing service
conditions for teaching and other staff, including qualifications, there is no
impediment for the State to prescribe Teachers Eligibility Test as a requisite
qualification for appointment to teaching posts, dehors the provisions of the
Right of Children to Free and Compulsory Education Act.
33.In respect of the judgments in the case of State of Tamil Nadu,
Department of school Education vs. Esakkimuthu in W.A.(MD)No.1557 of 2023
dated 21.09.2023, which relates to non-minority Institutions, wherein prior
permission was granted. Therefore, the learned Additional Advocate General has
no quarrel on the principles laid down in the said judgment. More so, in the said
judgment, the principles laid down in the case of Iruthaya Amali's case was
followed.
34.Therefore, we are of the considered opinion that, wherever the school
is considered as a single Unit and no surplus Teachers are identified then approval
is to be granted to those Teachers, who were appointed by following the
procedures as contemplated under the Act and Rules in force and if they satisfy
other conditions stipulated.
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35.In respect of subject conversion, if prior permission was already
granted by the competent educational authorities, then such subject conversion is
to be approved in accordance with the procedures contemplated. On identification
of surplus Teachers, if the school is a unit, then those Teachers are to be
redeployed in any other school within the Corporate Managements/joint
managements, if posts are available and in the event of non availability of posts,
the surplus Teachers are to be redeployed in any other schools, wherever the
vacancies are available.
36.It is needless to state that a junior most teaching staff in excess in a
school is to be declared as surplus. However, if the pupil ratio is increased or a
new post is sanctioned in the said school, subsequently, the redeployed teachers
are to be reverted back to their parent school by issuing appropriate orders by the
competent authorities. Regarding pass in Teachers Eligibility Test as a requisite
qualification, the State is empowered to make it as a mandatory qualification for
all the State Aided Schools, including Minority Schools, under the Act and Rules
in force and pass necessary orders to that effect.
37.The learned counsel appearing on behalf of the respondent/Teacher
mainly contended that the appointment of the respondent/Teacher was made in
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accordance with the procedure as contemplated and there is no infirmity.
However, the learned Additional Advocate General objected the said contention by
stating that in the impugned order dated 18.03.2022, reasons are assigned for the
rejection of approval of appointment of the respondent/Teacher.
38.Since we have considered the legal position in the matter of grant of
approval of appointment and treating the surplus Teachers, it would be suffice if
the matter is remitted back to the competent authority for the purpose of
considering the issues afresh based on the Act, Rules, Government Orders and the
principles laid down in the present judgment.
39.Regarding the powers of Administrator, the State has no dispute as
the Administrator appointed by the Court is empowered to appoint the Teachers by
following the procedures as contemplated. Therefore, the District Educational
Officers concerned cannot reject the approval on the ground that the first
respondent / Teacher was appointed/promoted by the Administrator. However, the
authorities competent are empowered to look into other criteria including the
educational qualifications, validity of such educational qualifications and
sanctioned strength including surplus Teachers on the date of appointment and
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other mandatory conditions fixed by the Education Department for the purpose of
grant of promotion with reference to the Act and Rules in force.
40.Therefore, the matter is remitted back to the competent authorities for
passing fresh orders. Such an exercise is directed to be completed within a period
of twelve weeks from the date of receipt of a copy of this order. The respondents
are at liberty to submit fresh representations or documents, if any, in the
meanwhile. Consequently, the order passed by the learned Single Judge in W.P.
(MD) Nos.18329 & 17766 of 2022, 14453 of 2020, 16690 of 2022, 12889 of
2018, 4926 of 2020, 10214 of 2021, 19183 of 2020, 24920 & 17483 of 2019,
17406 of 2022, 18867 of 2019, 723 of 2022, 17221 of 2019, 1336 & 13792 of
2021, 16213 of 2022, 25448, 7820 & 7821 of 2019 and 16835 of 2022, dated
02.09.2022 and the impugned orders in the Writ proceedings are set aside and the
Writ Appeals stand allowed. No costs. Consequently, connected miscellaneous
petitions are closed.
(S.M.S.,J.) & (V.L.N.,J.)
11.12.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SJ
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S.M.SUBRAMANIAM,J.
and
V.LAKSHMINARAYANAN,J.
SJ
To
1.The Director of School Education,
College Road,
Chennai – 600 009.
2.The Chief Educational Officer,
Madurai,
Madurai District.
3.The District Educational Officer,
Tirumangalam,
Madurai District.
W.A.(MD).Nos.2079 to 2083, 2085 to
2088, 2091, 2094, 2097 to 2106 of 2023
11.12.2023
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