Madras High Court
The Correspondent vs The Union Territory Of Puducherry on 3 September, 2024
Author: Battu Devanand
Bench: Battu Devanand
Writ Petition No.9194 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2024
CORAM
THE HONOURABLE MR. JUSTICE BATTU DEVANAND
Writ Petition No.9194 of 2018
& WMP.No.11021 of 2018
The Correspondent,
St. Mathias Higher Secondary School,
Nethaji Nagar, Uppalam,
Puducherry-605 001 ..Petitioner
vs.
1.The Union Territory of Puducherry,
by its Secretary,
Department of Education,
Secretariat, Puducherrry-605 001
2.The Director of School Education/
Government of Puducherry,
Directorate of School Education,
Puducherry-605 005.
3.The Senior Accounts Officer,
Government of Puducherry,
Directorate of School Education,
Puducherry-605 005. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorari, to call for the records pertaining
to the impugned memorandum dated 23.03.2018 in
no.6001/DSE/GIAS/U.III/2017-18, on the file of the second respondent, in
1/10
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Writ Petition No.9194 of 2018
respect of the petitioner school, and quash the same.
For Petitioner : Mr.Father Xavier Arul Raj, SC for
Mr.SR.A.Arulmary
For Respondents : Mr.R.Syed Mustafa, Spl G.P
ORDER
This Writ Petition has been filed, seeking for issuance of a Certiorari,
to call for the records pertaining to the impugned memorandum dated
23.03.2018 in no.6001/DSE/GIAS/U.III/2017-18, on the file of the second
respondent, in respect of the petitioner school, and quash the same.
2.The brief facts, which led to the filing of the present Writ Petition
are as follows:
The petitioner school is established and administered by the society
constituted by the Catholic Religious Congregation of “Franciscan Sisters
of Saint Aloysius Gonzaga, which is running number of educational
institutions in Puducherry union for the welfare of the poor and
downtrodden with a special focus on Christian minority. The petitioner
school is a Government aided minority school, enjoying minority status.
There are totally 25 sanctioned posts, out of which, only 13 have been
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approved and the remaining 12 teachers have been working in sanctioned
posts, with a legitimate expectation of approval by the respondents for the
years together. The petitioner already submitted the proposal for approval
of the teachers who are working in the sanctioned posts to the respondent
authorities, but it has been of no avail. While so, the 2nd respondent vide
Memorandum dated 23.03.2018, issued order of transfer to one teacher,
working in another school, posting her in the petitioner school. The details
of transfer are as under:
S.No. Name of the PST & School School to which transferred
in which working and posted
1. N.Solairani, St. Mathias Govt.Aided High
Wiseman Govt.Aided High School, School, Uppalam, Puducherry
Velrampet
2. S.Tamilselvi St. Mathias Govt.Aided High
Wiseman Govt.Aided High School, School, Uppalam, Puducherry
Velrampet
3. A.Jamuna St. Mathias Govt. Aided High
Wiseman Govt.Aided High School, School, Uppalam, Puducherry
Velrampet
3.According to the petitioner, the above said transfer and posting of
Teachers by deployment to their School from outside the Management is in
violation of the right of the minority Institutions, the Petitioner/School
submitted a detailed letter, dated 23.03.2018 to the 2nd
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Respondent/Directorate of School Education, Puducherry, explaining that
the right of appointment in a minority institution is vested with the minority
management and the 2nd respondent cannot unilaterally carry out
appointments by deployment in the petitioner institution and such
deployment from other schools will displace the teachers who are already
working in the petitioner institution for years together and requested not to
press the said deployments which are not in accordance with law. However,
without accepting the plea of the Petitioner, the 2nd Respondent has
unilaterally deployed the teacher from outside to the petitioner school in the
name of transfer. The said action of the respondent is in violation of the
constitutional protection guaranteed under Article 30(1) of the Constitution
and affirmed by the Hon'ble Apex Court in various judgments. Aggrieved
by the said Memorandum, the Petitioner is before this Court by way of the
present Writ Petition.
4.Learned Senior Counsel appearing for the Petitioner/School
contended that the 2nd Respondent, cannot unilaterally carry out
appointment of Teachers by deployment in the Petitioner/School and that it
will displace the Teachers, who are already working in the
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Petitioner/Schools for so many years.
5.In reply, learned Special Government Pleader (Pondy) appearing for
the respondents, submitted that more than 75% of the students studying in
the petitioner School are non-minority and that if the School does not have
50% of the students of the minority community, constitutional protection is
available under Article 30 of the Constitution of India and having lost the
minority status, petitioner cannot contend that the Teachers should have
been deployed on account of closure of some of the Schools and that the
contention that there are no vacancies, cannot be accepted. He drew the
attention of this Court to the decisions of the Apex Court in the cases of
“T.M.A.Pai Foundation vs. State of Karnataka, (1994) 2 SCC 195 and
P.A. Inamdar vs. State of Maharashtra”, (2005) 6 SCC 537 and contended
that the petitioner cannot prevent any Teacher from joining the School, as
the Petitioner/School is getting aid from the Government.
6.To substantiate his stand, learned Special Government Pleader
(Pondy) has relied on a decision of the Apex Court in the case of the
“Ahmedabad St. Xavier's College Society vs. State of Gujarat” reported in
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(1974) 1 SCC 717, wherein, it is held as under:
"103. Another conclusion which follows from what has
been discussed above is that 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. The
selection and appointment of teachers for an educational
institution is one of the essential ingredients of the right to
manage an educational institution and the minorities can plainly
be not denied such right of selection and appointment without
infringing Article 30(1). In the case of Rev. Father W.
Proostthis Court while dealing with Section 48-A of the Bihar
Universities Act observed that the said provision completely
took away the autonomy of the governing body of the college
and virtually vested the control of the college in the University
Service Commission. The petitioners in that case were,
therefore, held entitled to the protection of Article 30(1) of the
Constitution. The provisions of that section have been referred
to earlier. According to the section, subject to the approval of
University appointment, dismissals, removals, termination of
service or reduction in rank of teachers of an affiliated college
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not belonging to the State Government would have to be made
by the governing body of the college on the recommendation of
the University Service Commission. The section further
provided that the said Commission would be consulted by the
governing body of a college in all disciplinary matters affecting
teachers of the college and no action would be taken against or
any punishment imposed upon a teacher of a college otherwise
than in conformity with the findings of the Commission.
182. It is upon the principal and teachers of a college that
the tone and temper of an educational institution depend. On
them would depend its reputation, the maintenance of discipline
and its efficiency in teaching. The right to choose the principal
and to have the teaching conducted by teachers appointed by the
management after an overall assessment of their outlook and
philosophy is perhaps the most important facet of the right to
administer an educational institution. We can perceive no reason
why a representative of the University nominated by the Vice-
Chancellor should be on the Selection Committee for recruiting
the Principal or for the insistence of head of the department
besides the representative of the University being on the
Selection Committee for recruiting the members of the teaching
staff. So long as the persons chosen have the qualifications
prescribed by the University, the choice must be left to the
management. That is part of the fundamental right of the
minorities to administer the educational institution established
by them."
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7. Heard the learned counsel on either side and perused the
material placed on record.
8. The issue on hand is whether there is vacancy in the post of
Teachers in the Petitioner/School. Undoubtedly, it is open to the respondent
to transfer Teachers from other Schools to the Petitioner/School, on account
of non-availability of students in other Schools. But, the deployment of
Teachers cannot be done to a minority School. A minority School has the
right to recruit Teachers and staff on their own. On the ground of non-
availability of 50% of the students from the minority community, whether
the Petitioner/School will lose their minority status, cannot be gone into the
present Writ Petition, as the same is not the subject matter.
9. Taking note of the fact that there are no vacancies of Teachers
in the Petitioner/School and that already sufficient number of Teachers are
employed in the Petitioner/School and that the petitioner school already
submitted proposal for regularization of the teachers to the respondent
authorities, this Court is of the view that the respondents cannot force the
Petitioner/School to accommodate Teacher, who has been deployed to their
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School, as it is left to the discretion of the Management to employ the
Teachers, as the petitioner is enjoying minority status till date.
10. It is needless to mention that if any decision is taken and
communicated to the petitioner after hearing them, it is open to them to
question the same and this Court cannot render any finding as to whether
the petitioner has got minority status as on date, more particularly, while
considering the impugned orders in the present Writ Petition. Further, it is
open to the Government to transfer the Teachers so deployed, to some other
Schools on account of re-deployment.
11.In view of the above, the impugned memorandum dated
23.03.2018 in no.6001/DSE/GIAS/U.III/2017-18 of the second respondent
is set aside. The Writ Petition is allowed with the above direction(s) and
observation(s).
No costs.
Consequently connected miscellaneous petition is closed.
03.09.2024
Index : Yes/No
Speaking order:Yes/No
dn
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BATTU DEVANAND, J
dn
To
1.The Union Territory of Puducherry,
by its Secretary,
Department of Education,
Secretariat, Puducherrry-605 001
2.The Director of School Education/
Government of Puducherry,
Directorate of School Education,
Puducherry-605 005.
3.The Senior Accounts Officer,
Government of Puducherry,
Directorate of School Education,
Puducherry-605 005.
03.09.2024
https://www.mhc.tn.gov.in/judis
