Madras High Court
The Correspondent vs The State Of Tamil Nadu on 3 October, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 26.09.2024
ORDER PRONOUNCED ON : 03.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.16056, 16153, 16154, 16155 and 16156 of 2023
and WMP(MD).Nos. 13456, 13544, 16791, 16835, 16907, 16820, 13550,
13551 and 13547 of 2023
W.P(MD).No.16056 of 2023
The Correspondent
St.Francis Xavier Higher Secondary School
Thoothukudi 628 001
Thoothukudi District ....Petitioner
Vs
1.The State of Tamil Nadu
Represented by its Secretary
Department of School Education
Fort.St.George, Chennai 600 009
2.The Director of School Education
College Road, Chennai 600 009
3.The Chief Educational Officer
Thoothukudi, Thoothukudi District
4.The District Educational Officer
Thoothukudi, Thoothukudi District ....Respondents
https://www.mhc.tn.gov.in/judis
1/20
W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
Prayer in WP(MD).No.16056 of 2023: This Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorari calling for the
records relating to the impugned staff fixation issued by the third respondent
Chief Educational Officer for the academic year 2022-2023 in the petitioner
School vide proceedings in Mu.Mu.No.7149/Aa4/2022 dated 08.12.2022
insofar as it excludes counting of student in entire English medium sections
in High School level for assessing staff strength under grant-in-aid scheme
and thereby renders 10 teaching posts vis., 1 B.T.Assistant (Tamil), 4
B.T.Assistant (Maths), 2 B.T.Assistant (Science) 1 B.T.Assistant (Social
Science), 1 Secondary Grade Teacher and 1 Physical Education Teacher as
surplus , quash the same.
(In all the writ petitions)
For Petitioner : Mr.K.Ragatheesh Kumar
for M/s.Isaac Chambers
: Mr.J.Ashok
Additional Government Pleader
COMMON ORDER
W.P(MD).No.16056 of 2023 has been filed by an aided minority
institution challenging an order of the third respondent herein dated
08.12.2022 wherein a staff fixation order for the academic year 2022-2023
has been issued.
2.The above said staff fixation order declares surplus teachers in the
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
cadre of B.T.Assistant in the subject of Tamil, Maths, Science and Social
Science. Based upon the said staff fixation order, deployment orders have
been issued to two B.T.Assistant Science Teacher and two other B.T.Assistant
Maths Teachers. Those four deployments orders are under challenge in
W.P.(MD).Nos.16153, 16154, 16155 and 16156 of 2023.
3(A).The staff fixation order is challenged by the School
Management by raising the following grounds:
(i)Instead of calculating the entire students strength
irrespective of medium of instruction, the department had excluded
the students studying in the English medium section.
(ii)As per G.O.Ms.148, School Education Department dated
20.07.2018, the educational authorities are bound to consider the
students strength in the English medium section also for issuance of
staff fixation order.
(iii)When a similar order was passed in the academic year
2019-2020 excluding the English medium students, the same was
put to challenge in W.P.(MD).No.8275 of 2020 and the said writ
petition was disposed of along with the batch of writ petitions and
writ appeal in W.A.(MD).No.76 of 2019 etc. batch case. As per the
judgment of the Hon'ble Division Bench dated 31.03.2021,
irrespective of medium of instruction, the education department is
bound to provide additional teachers for additional
sections/standards for the academic year 2021-2022.
(iv)The Hon'ble Supreme Court has stayed only one portion
of the order at Paragraph No.95(i) of the Division Bench order in
W.A.(MD).No.76 of 2019 etc., batch case and therefore, the
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
respondents are bound to count the entire students strength
irrespective of medium of instruction.
(v)The School has each three sections in English and Tamil
medium for students VI to X. The School has six Tamil medium
section and three English medium section in each in IX standard
and X standard. Therefore, the School is in need of at least 36
teachers. However, only 29 B.T. Assistants/Second Grade Teachers
have been sanctioned as per staff fixation order.
(vi)As far as the case of Physical Education Teacher is
concerned, only two teachers have been allotted without considering
the fact that the School is having a total strength of 1365 students.
Hence, he had prayed for allowing the writ petition and pass
suitable orders.
4.(B)Contentions of the learned Additional Government Pleader in
defence of the impugned order are as follows:
(i).The learned Additional Government Pleader had contended that the
School was granted permission to start English medium section for VI
standard students in the academic year 2008-2009 only with a condition that
the said section should be run as a self-financing course. He had further
contended that the teachers who are receiving grant-in-aid should not be used
for taking classes in the English medium.
(ii). He had further contended that at no point of time, the petitioner
has given any request to the authorities for starting an English medium
section as contemplated under G.O.Ms.148, School Education Department
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
dated 20.07.2018. Only if any request had emanated from the School,
invoking the above said Government Order, the question of considering the
students of the English medium for calculating the total strength of students
would arise. Even as on today, all the English medium sections are run only
as a self-financing course. In such circumstances, the request of the petitioner
for calculating the students studying in the self-financing course for the
purposes of fixation of staff to confer grant-in-aid is not admissible.
(iii).He had further contended that considering the students strength,
the adequate number of physical education teacher posts have been
sanctioned and there is no question of further sanction of physical education
teacher.
(iv).He had further contended that the order of the Hon'ble Division
bench in W.A.(MD).No.76 of 2019 etc., batch case was challenged before the
Hon'ble Supreme Court. The Hon'ble Supreme Court by their order dated
16.02.2024 after confirming other directions, has remitted back to the High
Court for reconsidering the issue with regard to the directions in Paragraph
No.95(i) in W.A.(MD).No.76 of 2019 etc., batch case which relates to the
calculation of English medium students for fixing the total students strength.
Therefore, as on today, the question of including the students strength in the
English medium section for the purposes of calculating the students strength
or for staff fixation does not arise. Hence, he prayed for sustaining the orders
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
impugned in the writ petitions.
5.I have considered the submissions made on either side and perused
the material records.
(C) Discussion:
6.The primary contention of the learned counsel appearing for the writ
petitioner is that several B.T.Assistant teachers have been declared to be
surplus under the impugned staff fixation order only because of the fact that,
the education authorities have not taken into consideration the students
studying in the English medium. In case, if they are taken into consideration,
there will not be any surplus teachers and in fact, more teachers would be
required for the School.
7.The Government Orders with regard to opening of English medium
sections in the aided School are as follows:
(i)The Government had issued G.O.Ms.No.705/Education/
dated 25.05.1990 wherein the recognized aided private institutions
were permitted to open English medium section subject to several
conditions. The Government had also fixed the rate of fees to be
collected from the English medium students. The fee collected has
to be remitted into the Government account. As per the said
Government order, those Schools which desire to open new English
medium section and those who want additional teachers posts
should obtain orders from the Government for sanctioning of the
posts. Therefore, it is clear that when the above said Government
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
order was passed, the Government wanted to treat the English
medium section as an aided course and directed the School
Managements to obtain prior permission, not only for opening
English medium sections but also for having additional teacher
posts to cater to the English medium section.
(ii)The Government of Tamil Nadu issued G.O.Ms.No.601
Education (D1) Department dated 21.06.1993 modifying
G.O.Ms.No.705 dated 25.05.1990. As per G.O.Ms.No.601, the
Government had changed the policy and they have decided that new
English medium sections could be permitted only as unaided ones
notwithstanding the fact that the institution is an aided one. The
Government also declared that no teaching grant or teaching post
shall be sanctioned for English medium section.
(iii)It further declared that all the English medium sections
permitted from 1991-1992 shall for all purposes, be considered an
unaided one, notwithstanding the fact that the School is an aided
private School. The Government Order permitted the Schools to
collect reasonable tuition fee from the students and the said fee
shall be utilised for payment of remuneration to the teachers
appointing to handle English medium sections. It further declared
that only one new section shall be sanctioned for each class at a
time by the Government. Therefore, it is clear that all the English
medium sections that were started from the year 1991-1992 were
declared to be unaided one and the Schools were permitted to
collect separate tuition fee for payment of remuneration to the
teachers who are taking English medium sections.
(iv)The Government has passed G.O.Ms.No.110 School
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Education Department dated 29.05.2008 cancelling special fee
that was collected for English medium as well as Tamil medium
students. However, the said Government Order clarified that the
tuition fee collected from English medium students will be
continued.
8.The Hon'ble Diviison Bench in W.A(MD).No.76 of 2019 etc., batch
case while dealing with the issue relating to medium of instruction and its
impact on the staff strength in Paragraph No.91.10 has held as follows:
“91.10. In this context, it is to be noted that, as we discussed
elaborately in the earlier paras, after the RTE Act came into effect
with effect from 2010, at least from the academic year 2010-11
whatever the schools as on the academic year 1991-92 which had
been functioning in the State with recognition and aid with Tamil
medium classes since they have been permitted to start the English
medium courses by G.O.Ms.No.705, dated 25.05.1990, the teaching
staff required for imparting education in English medium sections
shall also be taken into account, atleast for the primary / elementary
education level, i.e., for the students between the age of 6 and 14.
Those students who had been admitted between the age of 6 and 14
shall have the Fundamental right to get free and compulsory
education irrespective of the medium of instruction.”
9.While issuing direction in Paragraph No.95(i), the Hon'ble Division
Bench has held as follows:
“95(i). Insofar as the teaching grant for the additional staff
employed in the already aided school as on the academic year
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
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.”
10.The order of the Hon'ble Division Bench was challenged before the
Hon'ble Supreme Court in SLP (Civil) No.15702 of 2021 along with other
appeals. The Hon'ble Supreme Court by an order dated 16.02.2024 disposed
off the Special Leave Appeal. Paragraph Nos. 2 to 5 of the order of the
Supreme Court are extracted as follows:
“2. The counsel would refer to this Court’s 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
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
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
present proceeding or under the impugned order.”
11. The Government of Tamil Nadu has issued G.O.Ms.No.148,
School Education Department dated 20.07.2018 permitting aided School to
start English medium sections with a condition that the students in the
English medium section should be carved out from the students of the Tamil
medium section. A further condition was imposed that the Government
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should not incur any additional expenses. The Government has imposed a
further condition that the School should approach the concerned authorities
seeking permission to open English medium section. The said G.O.Ms.No.
148, School Education Department dated 20.07.2018 refers to G.O.Ms.No.
601 Education (D1) Department dated 21.06.1993 and it does not supersede
G.O.Ms.No.601.
12.In the light of the above said Government Orders, judgment of the
Hon'ble Division Bench and the judgment of the Hon'ble Supreme Court, let
us consider the facts of the present case:
(i)For the first time, the petitioner management has approached the
educational authorities seeking permission to start one English medium
section in VI standard in the academic year 2008-2009 and an order was
passed on 31.08.2009 permitting the petitioner School to start one English
medium section for VI standard as unaided/self-financing course. In the said
order, several conditions were imposed. Clause 5 of the said condition
pointed out that the teachers who are receiving aid should not be used for
taking classes in the English medium section which is run under
self-financing mode.
(ii)When the students who got admitted in the VI standard for the
academic year 2008-2009 were in X standard, the School has approached the
educational authorities for ratification of opening of English medium section
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in classes VII, VIII, IX and X and an order was passed by the Joint Director
of School Education on 20.12.2011 granting ratification for opening of
English medium section in the other standards subject to various conditions.
(iii)Again it was pointed out that the teachers who are receiving salary
through aid should not be used for taking classes in English medium which
are run under self-financing scheme. Even at the time of granting ratification,
it was pointed out that all the English medium sections are completely
self-financing sections.
(iv)The Hon'ble Division Bench in W.A(MD).No.76 of 2019 etc., batch
case in Paragraph No.91.10 has taken into consideration, the Right of
Children to Free and Compulsory Education Act, 2009, for
Primary/Elementary School level, that is for the students between the age of 6
and 14. However, it seems that G.O.Ms.No.601 School Education
Department dated 21.06.1993 has not been brought to the notice of the
Hon'ble Division Bench wherein the State has taken a policy decision to
withdraw aid to all the English medium sections and treat them as
unaided/self-financing sections. Only referring G.O.Ms.601, dated
21.06.1993, the petitioner's School has been granted permission to open an
English medium section in VI standard by way of an order dated 31.08.2009
and ratification has been granted for opening English medium section to other
standards on 20.12.2011. G.O.Ms.No.601, dated 21.06.1993 has not been put
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
to challenge by the petitioner management.
13.The learned counsel appearing for the petitioner has relied upon
G.O.Ms.No.148, School Education Department dated 20.07.2018 wherein
permission has been granted to all the aided Schools to open English medium
section subject to various conditions. One of the conditions is that, in view of
opening of English medium sections, the State should not incur any
additional expenses. Apart from that, it has been pointed out that the Schools
have to approach the concerned authorities, seeking prior permission for
opening English medium sections subject to the conditions imposed in the
said Government Order. Relying upon the said Government Order, the
petitioner claims that the English medium sections have been converted into
aided section and therefore, the students studying in the said section should
also be taken into account for calculating the staff strength.
14.It is an admitted fact that the petitioner has not given any request
before the authorities concerned seeking their permission to open an English
medium section as contemplated under G.O.Ms.148, School Education
Department dated 20.07.2018. The English medium sections that were
opened by the petitioner management are only on the basis of G.O.No.601,
School Education Department dated 21.06.1993. The ratification order has
also been issued only based upon G.O.Ms.No.601. In such circumstances, the
petitioner cannot rely upon G.O.Ms.No.148 dated 20.07.2018.
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
15.All the English medium sections in the petitioner School are run on
an self-financing basis. If the petitioner wants to convert them as aided, the
petitioner should have approached the concerned authorities as contemplated
under G.O.Ms.No.148, dated 20.07.2018. Without obtaining any permission
under G.O.Ms.No.148, the petitioner, cannot convert self-financing sections
into aided sections and seek additional staff on the basis of the students
studying in the English medium.
16.In the affidavit, the petitioner has not stated anything with regard to
the tuition fee levied by the petitioner School for the students studying in
English medium section. In fact, the School has been permitted to levy tuition
fee on par with the matriculation Schools and from the said tuition fee, the
School has been permitted to pay salary of the teachers taking classes for
English medium sections. When such a detail is not available, this Court can
only draw an adverse interference to the fact that the petitioner is running
English medium sections only on self-financing basis.
17.The Hon'ble Division Bench in W.A(MD).No.76 of 2019 etc.,batch
case, relying upon the Right of Children to Free and Compulsory Education
Act, 2009 and G.O.Ms.No.705, dated 25.05.1990 have proceeded to issue a
direction to calculate the English medium students also for fixation of staff
strength. In the present case, the petitioner has not obtained any permission
from the authorities as contemplated under G.O.Ms.No.705 dated 25.05.1990.
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The permission obtained by the School is only relatable to G.O.Ms.No.601
dated 21.06.1992. That apart, the Hon'ble Division Bench has pointed out that
the Right of Children to Free and Compulsory Education Act, 2009, being
applicable to the students of the age 6 to 14, the benefit for English medium
section should be extended atleast to Primary/Elementary education level.
18.As per Rule 2(f) of the Right of Children to Free and Compulsory
Education Act, 2009, elementary education has been defined as an education
from first class to eighth class. Therefore, it is clear that by invoking the
provisions of Right of Children to Free and Compulsory Education Act,
2009, the petitioner management cannot seek aid to run English medium
sections beyond VIII standard. Therefore, it is clear that as a matter of right,
the petitioner cannot make a claim to include the English medium students in
the IX standard to XII standard for calculating the total strength, for arriving
at a staff fixation based upon the right to the Right of Children to Free and
Compulsory Education Act, 2009.
19.The direction issued by the Hon'ble Division Bench in
WA(MD).No.76 of 2019 etc., batch case in Paragraph No.95(i) deals with the
staff fixation, based on English medium section also. In view of the order of
the Hon'ble Supreme Court, the issue is now placed before the Hon'ble
Division Bench and the same is pending. In such circumstances, until the
Hon'ble Division Bench decides the issue, the petitioner cannot seek to
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
include the students studying in English medium section also, for the
purposes of staff fixation.
20.As per G.O.Ms.No.525 School Education (D1) Department, dated
29.12.1997, if the students strength for the classes between VI to X exceeds
250, a physical education teacher will be sanctioned and for every additional
strength of 300, one additional post of physical education teacher will be
sanctioned subject to a maximum 3. The petitioner School, being a Higher
Secondary School, if the strength exceeds 400, one post of physical Director
will be sanctioned by up-gradation of the existing post of physical education
teacher.
21.A perusal of the impugned staff fixation order dated 08.12.2022
reveals that one post of Physical Education Director has been sanctioned and
there is no quarrel in the said staff fixation. As far as the Physical education
Teacher post is concerned, two posts have been sanctioned and another one
has been declared to be surplus. Considering the fact that the students
studying in Tamil medium between VI to X standards are 716, the impugned
staff fixation order, fixing two Physical Education Teachers is perfectly valid
as per G.O.Ms.No.525, School Education (D1) Department, dated
29.12.1997.
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
22.It is clear that all the English medium sections in the petitioner
School are managed only on a self-financing basis and tuition fee is collected
by them as fixed by the Government, and from and out of the said tuition fee,
the salary is being paid to them. As per the condition imposed to the
petitioner School, while granting permission to open English medium
sections, the aided teachers cannot be used to take classes for
unaided /English medium sections. In case, if the petitioner's request is
accepted for including the students studying in English medium section, that
would result in converting the English medium sections from self-financing
one to aided one. As pointed out earlier, the School has not approached the
authorities, seeking permission to open, aided English medium sections as
contemplated under G.O.Ms.148 dated 20.07.2018. When they are continuing
English medium sections only under self-financing scheme, the authorities
were right in fixing the staff strength based upon the students studying in the
aided Tamil medium sections alone.
23.In W.P(MD).Nos.16153, 16154, 16155 and 16156 of 2023, the
deployment order issued to the concerned teachers, on being declared as
surplus, is under challenge. Since this Court has proceeded to hold that the
staff fixation order is legally valid, there is no merit in the writ petitions
challenging the deployment order.
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24.In view of the above said deliberations, there are no merits in the
writ petitions. All the writ petitions stand dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
03.10.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
To
1.The Secretary
State of Tamil Nadu
Department of School Education
Fort.St.George, Chennai 600 009
2.The Director of School Education
College Road, Chennai 600 009
3.The Chief Educational Officer
Thoothukudi, Thoothukudi District
4.The District Educational Officer
Thoothukudi, Thoothukudi District
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W.P(MD).Nos.16056 of 2023 & 16153 to 16156 of 2023
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).Nos.16056, 16153,
16154, 16155 and 16156 of 2023
and WMP(MD).Nos. 13456,
13544, 16791, 16835, 16907,
16820, 13550, 13551 and 13547
of 2023
03.10.2024
https://www.mhc.tn.gov.in/judis
