Madras High Court
K. Mohamed Ismail vs The District Education Officer on 9 August, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).Nos.10824 of 2021 batch cases.,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 20.03.2024
ORDER PRONOUNCED ON : 09.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.10824 of 2021 and W.P(MD).Nos. 19845, 19846,
20831, 21967, 21968, 21969, 21970, 21971, 21972, 21973, 21974,
21975, 22095 22096, 22541, 22542, 22543, 22544, 22545, 22546,
22547, 22548, 22549, 22550, 22830, 22831, 22832, 22833, 22834,
23109, 23153, 23498, 23499, 23530, 23628, 25149, 25150, 25443,
25444, 25445, 25446, 29031, 29032, 29033, 29034, 29035, 29036,
29037, 29038, 29039, 29040, 29041, 29042, 30067, 30068, 30069,
30071, 30072, 30202 and 30713 of 2023
and
W.M.P(MD).Nos.16373, 16374, 19297, 19352, 21616, 21617,
21618, 21619 and 25595 of 2023
W.P(MD).No.10824 of 2021
K. Mohamed Ismail ....Petitioner
Vs
1.The District Education Officer
Valliyur
Tirunelveli District
https://www.mhc.tn.gov.in/judis
1/22
W.P(MD).Nos.10824 of 2021 batch cases.,
2.The Chief Educational Officer
Palayamkottai
Tirunelveli District
3.The Correspondent
Amir Jamal Higher Secondary School
Idyankulam
Padmaneri Post Office
Tiruneveli District .....Respondents
Prayer in WP(MD).No.10824 of 2021: This Petition filed under Article
226 of the Constitution of India to issue a Writ of Mandamus, directing
the respondents to approve the appoint of the petitioner as a
B.T.Assistant (Mathematics) in the third respondent school, on the basis
of the proposal sent by the said school on 14.11.2019 without insisting
for qualification in the TET Examination in the light of the decision of
the Hon'ble Supreme Court by considering the representation given by
the petitioner dated 18.06.2021.
In WP(MD).No.10824 of 2021:
For Petitioner : Mr.E.Marees Kumar
For R1 & R2 : Mr.D.Sadiq Raja
Additional Government Pleader
COMMON ORDER
The batch of 61 writ petitions have been filed either by school
management or by individual appointees seeking a writ of mandamus
directing the authorities to approve their appointment as Secondary
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W.P(MD).Nos.10824 of 2021 batch cases.,
Grade Teachers / B.T.Assistants / Director of Physical Education
(Grade-II).
2.Since the approval applications are pending for several months,
these writ petitions have been filed seeking a mandamus as against the
authorities for approving the appointments.
3.This Court could have very well directed the authorities to
consider the proposals forwarded by the school management within a
specified time. In many cases, the authorities are rejecting the request
for approval on one ground and when the said order is set aside by the
Court, the authorities cite a different ground altogether and again
proceeded to reject the proposal submitted by the School. Mostly the
proposal submitted for approval of the appointment submitted by the
management are rejected/returned by the authorities on the following
grounds:
(a)There are surplus Secondary
Grade/B.T.Assistant teachers in the concerned School or
in the corporate management or within the educational
district.
(b)The appointed teachers have not passed TET
Examination.
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W.P(MD).Nos.10824 of 2021 batch cases.,
(c)The School has not obtained prior permission
from the authorities to effect appointment.
(d) In appointment of B.T.Assistant teachers,
subject roster has not been followed.
(e) As against the order of the Hon'ble Division
Bench in W.A(MD).No.76 of 2019 batch case, the
Special Leave Petitions are pending before the Hon'ble
Supreme Court.
(A). Surplus Teachers:
4.The Hon'ble Division Bench by its order dated
31.03.2021 in W.A(MD).No.76 of 2019 (The Secretary to Government
& others Vs. Iruthaya Amali & another) in paragraph No.95 has passed
the following order:
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.
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W.P(MD).Nos.10824 of 2021 batch 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.
(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.
(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.
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W.P(MD).Nos.10824 of 2021 batch cases.,
(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 http://www.judis.nic.in W.A.
(MD).No.76 of 2019 etc., batch teacher concerned and also to
the needy school to which the deployment is to be made, by
25th September.
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W.P(MD).Nos.10824 of 2021 batch cases.,
(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, 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
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W.P(MD).Nos.10824 of 2021 batch cases.,
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.
(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.
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W.P(MD).Nos.10824 of 2021 batch cases.,
(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 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.
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W.P(MD).Nos.10824 of 2021 batch cases.,
(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.
(r) Once such information are uploaded in the web
portal by the Education Department, after verifying the same,
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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
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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 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."
5.The order of the Hon'ble Division Bench was put to challenge
by some of the School Managements before the Hon'ble Supreme Court.
The judgment of the Hon'ble Division Bench was put to challenge by the
Government of Tamil Nadu in Special Leave to Appeal (Civil).No.
15702 of 2021. The Hon'ble Supreme Court by its order dated
16.02.2024 has closed the Special Leave Petitions and relegated the
parties to the Madras High Court with the following observation in
paragraph Nos. 2 to 6 which are extracted as follows:
“2.The counsel would refer to this Court’s
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proceedings dated 27.09.2023 and the earlier proceeding
dated 10.08.2022 to point out that following the liberty
granted in Clause (m) of Paragraph 95 in the impugned
judgment dated 31.03.2021, the Tamil Nadu Private Schools
(Regulation) Act, 2018 and Rules were enacted w.e.f.
20.01.2023. Thus the enacted laws will govern the process of
approval for teachers in the concerned schools provided the
individual and the school concerned satisfy the criteria laid
down in the 2023 Regulations.
3. However, the above 2023 Regulations and the Rules
are subject matter of challenge before the Madras High
Court and an interim order was passed therein on
21.04.2023, ordering status quo on the operation of the 2023
Regulations.
4. The suggestion made by the two senior counsel to
this Court is to relegate the parties to the pending
proceedings in the Madras High Court. It is however
submitted that the Division Bench should limit itself to the
core direction given in sub-clause (i) of paragraph 95 of the
impugned judgment dated 31.03.2021 in the Writ Appeal
(MD) No.76 of 2019 and need not be concerned with the
other aspects in the earlier judgment (31.3.2021).
5. Accepting the above submission, this matter is
ordered to be closed by relegating the parties to the Madras
High Court. It is made clear that the Court should decide the
pending matter on merit without being influenced by any
observation made by this Court during the pendency of the
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present proceeding or under the impugned order.
6. In view of the above order passed today, if any
contempt case has been filed, the same should be either
deferred or closed.”
6.The Hon'ble Division Bench of our High Court in
W.A(MD).No.15157 of 2023 (State of Tamil Nadu Rep.by its Principal
Secretary, Department of School Education, Chennai and others Vs.
C.Esakkimuthu and another) by an order dated 21.09.2023 has held
that the order of the Hon'ble Division Bench in W.A(MD).No.76 of 2019
batch case dated 31.03.2021 is prospective in nature.
7.In view of the judgment cited supra, it is clear that any
appointment that is made prior to 31.03.2021 is not governed by the
Division Bench judgment of our High Court in W.A(MD).No.76 of 2019
and therefore, approval has to be granted regardless of the issue relating
to surplus teacher. However, with regard to the Schools (whether they
are stand alone or fallen within the corporate management), if any
appointment order is issued after receipt of staff fixation order for a
particular academic year, the same shall be governed by the staff fixation
order and there cannot be any approval disregarding the issue of surplus.
8.The Hon'ble Division Bench of our High Court in WA(MD).No.
136 of 2017 (The Joint Director of Elementary Education, College
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W.P(MD).Nos.10824 of 2021 batch cases.,
Road, Chennai and others Vs. Getzy Roopala and others) in the order
dated 04.08.2017 has categorically held that when there are surplus
teachers in corporate management, they have to be redeployed
elsewhere. Without redeployment, the management cannot make further
appointment. In case, any appointments are made to surplus vacancies, it
is for the management to pay the appointees out of their own resources
and the Government cannot be saddled with liability for such illegal
appointment of teachers.
(B) Prior permission:
9.Where prior permission has been granted by the concerned
authority for effecting appointment, the issue of surplus cannot be
resurrected by the authorities, when proposal is submitted by the school
management for grant of approval to the appointment.
(a)Where a school is identified as a stand alone/single unit school
and no surplus have been identified for any particular academic year, for
a particular subject, the authorities should proceed to approve the
appointment, if the appointee is otherwise qualified.
10.The Hon'ble Division Bench in a judgment in WA(MD).No.
1098 of 2022 ( The Secretary to the Government, Department of
School Education and others Vs. R.Jeya Suhi and another) dated
16.08.2023 has held that in the absence of any prohibition to make
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W.P(MD).Nos.10824 of 2021 batch cases.,
appointments when the surplus teachers are in existence in the corporate
management, there is no impediment for granting such an approval. The
Hon'ble Division Bench had further held that G.O.Ms.No.165, School
Education Department dated 17.09.2019 was suspended on 20.09.2019
and therefore, it should be deemed that the order was not in existence
from the said date onwards. Therefore, any appointment made after
20.09.2019 has to be approved by the authorities without citing
G.O.Ms.No.165, School Education Department dated 17.09.2019.
(C). Requirement of Teacher Eligibility Test (TET)
Qualification:
11.The Hon'ble Division Bench of our High Court in a judgement
reported in 2023-3-L.W.112 (The Director of School Education
D.P.I.Campus, College Road & others Vs. M.Velayutham & another)
in paragraph Nos.73 and 74(c) has held that any secondary grade teacher
who was appointed prior to coming into force of the Right to Education
Act is necessarily required to pass TET examination for being promoted
as a B.T.Assistant. As far as fresh appointment as secondary grade
teacher or B.T. Assistant is concerned, a pass in TET is an essential
eligibility criteria to be fulfilled. The Hon'ble Division Bench had
further held that those appointments prior to 29.07.2011 are exempted
from passing TET examination only for the purpose of continuance in
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the post of secondary grade teacher or B.T.Assistant without
promotional prospects. The Hon'ble Division Bench in their order dated
14.06.2023 has held that the above said principle relating to pass in TET
examination will not have any application to minority institution both
aided and un-aided.
12.The Hon'ble Division Bench of our High Court in
W.A(MD).No.354 of 2020 (The District Educational Officer,
Sankarankovil and another Vs. E.Elsi Jemima and another) by an
order dated 22.06.2023 has held that a pass in TET examination is not
mandatory for being appointed to a minority institution. Therefore, it is
clear that as far as the minority institutions are concerned, a pass in TET
examination is not mandatory required qualification for being appointed
as a teacher.
(D) Applicability of Rule 15(4) of Tamil Nadu Recognised
Private Schools (Regulation) Rules 1974 to minority institutions:
13.The Hon'ble Division Bench of our High Court in a judgment
reported in 2007-4-L.W.617 ( Eka Ratchagar Sabai Higher Secondary
School & another Vs. K.Sumathi & another) in paragraph No.15 has
held that Rule 15(4) of Tamil Nadu Recognised Private Schools
(Regulation) Rules 1974 is in violation of Article 30(1) Constitution of
India and the same is not required to be followed by the minority
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institution. Therefore, whenever the proposals for approval of promotion
are submitted by the minority school managements, the above said
aspects should be kept in mind by the authorities concerned.
(E). Upgradation of Secondary Grade Teacher post as
B.T.Assistant:
14.As far as the conversion of secondary grade teacher to that of
the B.T.Assistant for middle schools are concerned, the same being a
policy decision of the Government, the conversion is automatic and
prior permission is not required for such an upgradation of secondary
grade teacher post to that of B.T.Assistant for taking classes from VI to
VIII standards.
(F) Subject Roster:
15.Two learned Single Judges of our High Court in a judgement
reported in 2006 (5) CTC 385 ( Director of Elementary Education and
others Vs. S.Vigila and another) and 2007 (2) MLJ 760
( Correspondent, Britannia Higher Secondary School, Chennai Vs.
State of Tamil Nadu) had held that the subject roster cannot be imposed
upon the school management by way of circular or administrative
instructions. However, the same can be imposed only through a statutory
regulation. These two orders were approved by the Hon'ble First Bench
of our High Court in W.A.1198 of 2007 by an order dated 20.09.2007
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(The State of Tamil Nadu Vs. The Correspondent, TELC Middle
School, Villupuram). Therefore, it is clear that unless statutory
provisions are there, the question of directing the management to follow
subject roster through a circular or administrative instruction is not
permissible in law.
(G) Sewing mistress/drawing teacher:
16.When a single post is sanctioned for tailoring or drawing
subject, the same cannot be declared to be a surplus post on the ground
that the School has not achieved the minimum students strength of 250
students. This Court in W.P(MD).No.1321 of 2020 by an order dated
19.02.2020 has passed an order to the above said effect. The said
judgement has been upheld by the Hon'ble Division Bench by its order
dated 02.03.2022 in W.A(MD).No.81 of 2022. Therefore, the authorities
cannot reject any proposal for approval of the appointment of a drawing
teacher or sewing mistress (where there is a single sanctioned post) on
the ground that there is no minimum students strength.
(H) Physical Education Teacher/ Physical Director:
17. As per G.O.Ms.No.525, School Education (D1) Department,
dated 29.12.1997, if the student strength in a High School exceeds 250,
the School is eligible for one post of Physical Education Teacher. In
case, if the additional strength exceeds 300, one additional post of
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Physical Education Teacher will be sanctioned subject to a maximum
of 3.
18.As far as the Higher Secondary Schools are concerned, if the
students strength exceeds 400, the post of Physical Education Teacher
will be upgraded as one post of Physical Director. Therefore, it is clear
that the students strength in Classes VI to X should also be taken into
account for sanctioning the post of a Physical Director in a Higher
Secondary School.
(I) Procedure to be adopted while rejecting the proposal:
19.It could be seen from various writ petitions that the authorities
are rejecting or returning the proposals submitted by the managements
citing any one of the reasons as catalogued above. Those orders are
challenged before this Court and the impugned orders are set aside.
Thereafter, the authorities find out a new reason to reject the proposal.
This practice has to be deprecated. Whenever a proposal is submitted by
the management for approval of appointment/promotion, in case, if the
authorities proceeded to reject or return the proposal, they have to
enumerate all the reasons comprehensively. If any authority is found to
have not followed this procedure, the departmental action should be
initiated as against him by the concerned higher authorities.
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(J) Conclusion:
20. In the result, all the writ petitions are allowed with a direction
to the authorities to consider the proposal for approval of appointment
submitted by the School Management to the post of Secondary Grade
Teachers/B.T.Assistants/ Director of Physical Education (Grade-II) and
pass orders in the light of the above said observations, within a period of
eight (8) weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petitions are closed.
09.08.2024
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
To
1.The District Education Officer
Valliyur
Tirunelveli District
2.The Chief Educational Officer
Palayamkottai
Tirunelveli District
https://www.mhc.tn.gov.in/judis
W.P(MD).Nos.10824 of 2021 batch cases.,
R.VIJAYAKUMAR, J.
msa
Pre-delivery Common Judgement made in
W.P.(MD).No.10824 of 2021 and W.P(MD).Nos.
19845, 19846, 20831, 21967, 21968, 21969, 21970,
21971, 21972, 21973, 21974, 21975, 22095 22096,
22541, 22542, 22543, 22544, 22545, 22546, 22547,
22548, 22549, 22550, 22830, 22831, 22832, 22833,
22834, 23109, 23153, 23498, 23499, 23530, 23628,
25149, 25150, 25443, 25444, 25445, 25446, 29031,
29032, 29033, 29034, 29035, 29036, 29037, 29038,
29039, 29040, 29041, 29042, 30067, 30068, 30069,
30071, 30072, 30202 and 30713 of 2023.
and
W.M.P(MD).Nos.16373, 16374, 19297, 19352,
21616, 21617, 21618, 21619 and 25595 of 2023.
09.08.2024
https://www.mhc.tn.gov.in/judis
