Madras High Court
E.Julie Selvakumari Margaret vs The State Of Tamil Nadu on 27 June, 2023
W.P.No.34238 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2023
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
W.P.No.34238 of 2017
and
W.M.P.Nos.38125 and 38126 of 2017
E.Julie Selvakumari Margaret ...Petitioner
Versus
1.The State of Tamil Nadu,
Rep.by its Secretary to Government,
Education Department,
Fort St.George, Secretariat, Chennai -9.
2.The Director of School Education,
College Road, Chennai – 6.
3.The Chief Education Officer,
Vellore, Vellore District.
4.The District Education Officer,
Thirupattur, Vellore, Vellore District.
5.The Correspondent,
Kasam Devalois Higher Secondary School,
Kasm, Katpadi,
Vellore – 632 007. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a writ of certiorarified mandamus calling for the entire
records connected with the impugned order passed by the 4th respondent
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W.P.No.34238 of 2017
vide A.Thi.Mu.No.0608/Aa4/2017 dated 22.03.2017 and quash the same
and direct the respondents to approve the appointment of the petitioner as
B.T.Assistant (History) in the 5th respondent School w.e.f 10.09.2012
with all consequential monetary benefits, in the light of the decision
rendered in the case of J.Remila vs. The Government of Taminadu &
Ors. in W.P.(MD).No.1853 of 2016 dated 22.6.2017.
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mrs.Meera Arumugam
Additional Government Pleader
for R1 to R4
No appearance for R5
ORDER
The petitioner has filed the present writ petition seeking
issuance of a writ of certiorarified mandamus to quash the impugned
order dated 22.03.2017 passed by the fourth respondent and
consequently approve the appointment of the petitioner as B.T.Assistant
(History) in the fifth respondent School w.e.f 10.09.2012, together with
all consequential monetary benefits.
2. The petitioner's grievance is that she was appointed as
Secondary Grade teacher consequent to the vacancy that arose for the
post in the fifth respondent School due to the demise of one Mrs.Daisy
Rani on 19.8.2012. The fifth respondent being a minority institution, the
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W.P.No.34238 of 2017
petitioner's case is that no permission is required to fill up the vacancies.
Therefore, the petitioner was selected and appointed as B.T.Assistant
(History) and the order of appointment came to be passed on 06.9.2012
and she joined duty on 10.09.2012. The fifth respondent submitted a
proposal dated 06.11.2012 for approval of the petitioner's appointment as
B.T.Assistant (History). The fourth respondent returned the proposal on
the ground that the teachers, who were qualified with Teachers Eligibility
Test (TET) as mandated under G.O.Ms.No.181 School Education (C2)
Department, dated 15.11.2011 alone can be appointed. The fifth
respondent being a minority institution, the requirement of the petitioner
qualifying with Teachers Eligibility Test does not arise in view of the
decision of the Hon'ble Supreme Court in the case of Pramti
Educational and Cultural Trust and Ors. Vs. Union of India and Ors.
reported in (2014) 4 MLJ 486 (SC). Referring to the said judgment of
the Hon'ble Supreme Court, the fifth respondent school re-submitted the
proposal and again sought for approval of the petitioner's appointment on
25.1.2017. However, the fourth respondent vide proceedings
dated 22.3.2017 again rejected the approval of the appointment
of the petitioner on the ground that no permission was obtained from the
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W.P.No.34238 of 2017
Department for upgrading the vacant Secondary Grade teacher post as
B.T.Assistant post.
3. The petitioner's case is that no such permission is required
for conversion or upgradation of Secondary Grade teacher post into
B.T.Assistant post in a minority institution.
4. Heard Mr.S.N.Ravichandran, learned counsel for the
petitioner and Mrs.Meera Arumugam, learned Additional Government
Pleader for respondents 1 to 4 and perused the records.
5. The learned counsel for the petitioner would submit that the
issues is no longer res integra, in view of the decision of this Court in
W.P.No.18044 of 2011 dated 21.3.2012 and series of pronouncements of
this Court. In W.P.No.18044 of 2011, a learned Single Judge of this
Court held that in the absence of any Rules framed as contemplated
under Section 56 of the Tamil Nadu Recognised Private Schools
(Regulation) Act, 1973, G.O.Ms.No.144 School Education (D1)
Department dated 04.07.2008 cannot be applied to privately managed
aided schools. The very same issue also came before the Hon'ble
Division Bench of this Court in W.A.(MD)No.1350 of 2017 dated
14.11.2017, which was preferred by the Government of Tamil Nadu
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against the order of the learned Single Judge of this Court. The only
point for consideration in the said writ appeal was, as to whether
Government aided minority educational institutions were required to
obtain prior approval from the concerned Educational Authorities for
conversion of Secondary Grade post as B.T.Assistant post, before
making appointment of a teacher in the B.T.Assistant post.
6. After considering the entire gamut of facts and law, the
Hon'ble Division Bench of this Court concluded that the institutions
being recognised as minority institutions were protected under Article
30(1) of the Constitution of India. Though the State may have power to
regulate the minority educational institutions in the interest of
'Efficiency', 'Discipline', 'Health', 'Sanitation', 'Morality' and 'Public
order', the same cannot extend over entire administrative control of the
minority institutions over its staff and its right to establish unregistered
educational institutions. The Hon'ble Division Bench of this Court
agreed with the order of the learned Single Judge and held that no prior
permission was required before converting the Secondary Grade post to
B.T.Assistant post.
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7. One another Hon'ble Division Bench of this Court in
W.A.(MD).No.201 of 2020 dated 14.08.2020 had followed the consistent
view taken by this Court and held that it is settled position of law that
once the appointment is made to a sanctioned post, then, prior approval is
not necessary. The said writ appeal was also at the instance of the State
and it came to be dismissed.
8. Per contra, the learned Additional Government Pleader
appearing for the respondents 1 to 4 would place reliance on the
judgment in Rev.Aplc(MD).No.136 of 2022 in W.A.(MD).No.1115 of
2019 dated 06.6.2023 and submit that the recent view taken by the
Hon'ble Division Bench of this Court should prevail and the review
application was disposed of directing the management to fill up the
vacancies in the teaching post only after getting prior permission from
the Department and the petitioner's case cannot be accepted.
9. Considering the entire facts and circumstances, including the
various pronouncements of this Court upto the recent pronouncement in
Rev.Aplc(MD).No.136 of 2022 in W.A.(MD).No.1115 of 2019 dated
06.6.2023, the issue certainly is no longer res integra.
10. In view of the judgments relied on by the learned counsel
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W.P.No.34238 of 2017
for the petitioner, two of which are the Hon'ble Division Bench of this
Court. However, the decision relied on by the learned Additional
Government Pleader, appears to be taking a contrary view. However, at
the same time, from the reading of the judgment of Hon'ble Division
Bench rendered in Rev.Aplc(MD).No.136 of 2022 in W.A.(MD).No.
1115 of 2019 dated 06.6.2023, it is clear that a direction was given to the
management to fill up the vacancies in teaching post only after getting
prior permission from the Department and the right of the minority
institution has also been discussed. However, at the same time, none of
the earlier judgments of this Court had been placed before the Hon'ble
Division Bench and moreover a direction was given by the Hon'ble
Division Bench in the review application, which appears to be only
prospective while filling up the vacancies in teaching post. However, in
the instant case the petitioner's appointment was made on 10.09.2012 and
she has already attained the age of superannuation and she is before this
Court only for getting her service benefits that she would be entitled.
11. Therefore, I am of the view that the observations made in
Rev.Aplc(MD).No.136 of 2022 in W.A.(MD).No.1115 of 2019 dated
06.6.2023 will not apply to the facts of the present case and the
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W.P.No.34238 of 2017
consistent view of this Court being no prior permission is required before
conversion or upgradation of the post, the petitioner is therefore, entitled
for the relief as sought for before this Court.
12. Accordingly, this writ petition is allowed. The respondents
shall notionally approve the appointment of the petitioner as
B.T.Assistant with effect from 10.09.2012 and settle all her
consequential monetary benefits. This exercise shall be completed within
a period of eight weeks from the date of receipt of a copy of this order.
There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
27.06.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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W.P.No.34238 of 2017
To
1.The Secretary to Government,
State of Tamil Nadu,
Education Department,
Fort St.George, Secretariat, Chennai -9.
2.The Director of School Education,
College Road, Chennai – 6.
3.The Chief Education Officer,
Vellore, Vellore District.
4.The District Education Officer,
Thirupattur, Vellore, Vellore District.
5.The Correspondent,
Kasam Devalois Higher Secondary School,
Kasm, Katpadi,
Vellore – 632 007.
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P.B.BALAJI, J.,
ms
W.P.No.34238 of 2017
and
W.M.P.Nos.38125 and 38126 of 2017
27.06.2023
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