Madras High Court
The State Of Tamil Nadu vs The Correspondent on 28 April, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.1870 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.04.2025
PRONOUNCED ON : 28.04.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.1870 of 2023
and
C.M.P.(MD)No.14274 of 2023
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,
Dindigul, Dindigul District.
4.The District Educational Officer,
Dindigul, Dindigul District. ... Appellants
Vs.
The Correspondent,
St. Mary's Higher Secondary School,
Dindigul 624 001,
Dindigul District. ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
1/16
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W.A.(MD)No.1870 of 2023
of this Court in W.P.(MD)No.7765 of 2018, dated 14.02.2023.
For Appellants :Mr.J.Ashok
Additional Government Pleader
For Respondent :Mr.Issac Mohanlal
Senior Counsel
assisted by Mr.K.Ragatheesh Kumar
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The present writ appeal is filed against the order passed in W.P.
(MD)No.7765 of 2018, dated 14.02.2023.
2. The writ petition was filed for issuance of a writ of Certiorarified
Mandamus, to quash the order, dated 24.11.2017, passed by the 4th respondent and
consequently, to direct the 4th respondent to approve the appointment of
M.Karthikeyan as Physical Education Teacher in the petitioner school with effect
from 07.06.2017 with salary and all attendant benefits forthwith.
3. The brief facts are that the petitioner school is run by St. Mary's
Society, Dindigul, a society registered (Registration No. 2 of 1999) under the TN
Societies Registration Act of 1860. The school was initially established as a High
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School in the year 1923, then upgraded as Higher Secondary School in the year
1979. It is a recognised aided minority educational institution from standards VI
to XII with medium of instruction as Tamil. There are 88 teachers viz., one
Headmaster, 13 PG Assistants, 1 Physical Director (Grade I), 2 Vocational
Instructors (Grade-I), 38 BT Assistants, 10 Tamil Pandits, 13 Secondary Grade
Teachers, 5 Physical Educational Teachers 3 Drawing Teachers and 2 Sewing
Teachers working and the school is receiving aid from the State Government.
There are 17 aided non-teaching staff in the school viz., 3 Junior Assistants, 2
Record Clerks, 2 Lab Assistants, 1 Librarian, 3 Office Assistants, 2 Watchman, 1
Sweeper, 1 Scavenger, 2 Waterman. There are 3371 students studying in the
school. The Government announced the revised Norms on teacher student ratio
under G.O.Ms.No.525 (School Education), dated 29.12.1997, with effect from
01.06.1998, wherein 1:40 was adopted and separate norms were prescribed for the
different stages of education. The post of Physical Education Director in the
School fell vacant on 01.06.2018 due to retirement of incumbent
Fr.S.Marianathan on 31.05.2017 and the school promoted one Physical Education
Teacher namely, S. Victor Raj with effect from 07.06.2017 Physical Education
Director. The DEO approved the same, vide his proceedings in O.Mu.No.
3367/A2/17, dated 22.06.2017. In the resultant vacancy the school appointed
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M.Karthikeyan as Physical Education Teacher with effect from 07.06.2017, who
possesses the qualification of B.A., (Co-operation) and Master of Physical
Education. For the purpose of disbursement of grant-in-aid towards salary, the
school submitted proposal to the 4th respondent DEO on 07.06.2017, but vide
impugned proceedings dated 24.11.2017 denied approval by stating that the
school in eligible for only three posts of Physical Education Teachers as per
G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997 and there
are already four Physical Education Teachers working in the school, the approval
to the appointment of the said M.Karthikeyan could not be granted. The
contention of the petitioner the denial of approval is highly arbitrary, illegal and
unconstitutional and is in complete violation of the norms fixed by G.O.Ms.No.
525, School Education (D1) Department, dated 29.12.1997. Further, notice or any
opportunity of hearing was provided before passing of the impugned order. The
school contended that the school is eligible for 5 Physical Education Teachers as
per G.O.Ms.No.525 when the strength of classes VI to X in the High School
exceeds 250, one post of Physical Education Teacher will be sanctioned and for
every additional strength of 300 students, one additional post of Physical
Education Teacher will be sanctioned subject to a maximum of 3 Physical
Education Teachers. Accordingly, the school has the strength of 3371 students in
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the year 2017-2018 (standards from VI to X). The petitioner school is entitled for
5 posts of Physical Education Teachers. The 3rd respondent CEO, while settling
the annual staff fixation for the year 2016-2017, vide proceedings Na.Ka.No.
4700/Aa2/2016, dated 07.11.2016 (signed on 26.12.2016), sanctioned one
Physical Education Director and five Physical Education Teachers posts. Hence,
the school appointed the said M.Karthikeyan in the fifth place, i.e., the vacancy
due to the promotion of S.Victor Raj as Physical Education Director in the same
school. As per the said G.O., in vogue as well as the staff-fixation order issued by
the CEO, the petitioner school is eligible for five posts of Physical Education
Teachers and the appointment of the said M.Karthikeyan as Physical Education
Teacher was made within the sanctioned strength. Hence, the respondents are
bound to approve the appointment of M.Karthikeyan as Physical Education
Teacher in the petitioner school with effect from 07.06.2017. The said teacher is
working without salary ever since from his date of appointment and the impugned
proceedings liable to be set aside. Hence, the writ petition is filed.
4. The 4th respondent had filed counter affidavit stating that it is not in
dispute that the petitioner's school is a religious minority institution, the school is
receiving financial aid from the Government towards salary. Among other
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teachers there were one Physical Education Director and five Physical Education
Teachers during the year 2016-2017. Due to the promotion of one Physical
Education Teacher, namely, S.Victor Raj as Physical Education Director, there
arose a permanent vacancy in the post of Physical Education Teacher on
07.06.2017 i.e., during 2017-2018. As per G.O.Ms.No.525 only three Physical
Education Teachers are eligible for a Higher Secondary School irrespective of the
students strength.
School year Students Strength No. of PET's eligible Reasons for reduction
2016-2017 3753 5 -
2017-2018 3861 4 One Vacancy was
reduced as per GO
Ms.No.525
2018-2019 3958 4 One Vacancy was
reduced as per GO
Ms.No.525
The contents of G.O.Ms.No.525 are squarely applicable to all the aided High or
Higher Secondary Schools whether they are minority or non-minority. The
petitioner's school cannot have more than 3 PET's as the maximum number of
PET's prescribed in the said G.O., is three and the students strength will have no
impact on the number of PET to claim more than 3 PETs. The above G.O. came
into force from 01.06.1998 and the school is well aware of the G.O. which
remains in force for the last 20 years. All the aided schools whether minority or
non-minority are bound to follow the above Government order and the school
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cannot seek exemption. Based on the above G.O. and the norms for appointment
of PETs the impugned order was passed as the petitioner's school had four
Physical Education Teachers on 07.06.2017 which is more than the 3 Physical
Education Teachers prescribed in the said G.O. The school is already having one
post which is more than the prescribed norms in the said G.O. Therefore, the
petitioner is not entitled to one more post additionally. The school was granted
permission vide No.Rc.6447/Aa.2/ 2017, dated 12.10.2017 with a certain
condition. In the said order, it has been specifically stated that if the incumbent
has attained superannuation or becomes vacant for any other reason, the post shall
be surrendered and the post gets lapsed. It is a service protection given to the
incumbent and the school cannot appoint any new candidate. But violating the
said condition, the school has appointed a candidate. Hence, the 4th respondent
prayed to dismiss the writ petition.
5. After considering the rival contentions, the Writ Court relied on a
Division Bench judgment in the case of The Director of School Education,
Chennai and Others Vs. K.Uma reported in (2010) 2 MLJ 277, wherein it is held
that there cannot be any ceiling with regard to the strength of teachers as the same
is bound to vary/increase as per the strength of the students. The Writ Court held
that when the students’ strength is increased, the ceiling has to be removed and if
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required, more Physical Education Teachers are to be appointed and the G.O.
(Ms)No.525, dated 29.12.1997, is not a mandatory, it is only a directory. Hence,
the Writ Court quashed the impugned order passed by the fourth respondent, dated
24.11.2017, and remanded the matter remanded back to the fourth respondent for
fresh consideration, in terms of the Division Bench judgment reported in (2010) 2
MLJ 277. Aggrieved over the same, the government has preferred the present writ
appeal.
6. Heard Mr.J.Ashok, Learned Additional Government Pleader
appearing for the appellants and Mr.Issac Mohanlal, Learned Senior Counsel
assisted by Mr.K.Ragatheesh Kumar, Learned Counsel appearing for the
respondent and perused the records.
7. The primary contention of the appellant is that the G.O.Ms.No.525
prescribes only three Physical Education Teachers for High School which is the
maximum limit and if there are more than 400 students in Higher Secondary
School, then the school is entitled to one Physical Education Director, thereby the
school is entitled to two PET and one Director. On the other hand, the contention
of the school is that they are entitled to have more than three Physical Education
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Teachers based on the students’ strength and they are having five Physical
Education Teachers including Karthikeyan. The further contention of the school is
that the Higher Secondary section is different from High School section, the High
School strength 2643, hence maximum limit of three cannot be fixed, hence the
school is entitled to four, then for Higher Secondary the strength is 748, hence the
school is entitled to one more Physical Education Director, thereby the school is
entitled to four PET and one Director.
8. In order to consider the rival contention, it is necessary to peruse the
G.O. and the relevant portion para 5(III)(c) and 5(IV)(f) of the G.O. is extracted
hereunder:
"5(III)(c): When the strength in classes VI to X in High Schools exceeds
250, one post of PET will be sanctioned and for every additional
strength of 300, one additional post of PET will be sanctioned SUBJECT
TO THE MAXIMUM OF 3
5(IV)(f): For school with strength of over 400, one post of Physical
Director will be given by upgradation of existing post of Physical
Education Teacher"
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9. It is seen that the students’ strength is 2623 in High School section,
then school is entitled to three Physical Education Teachers for High School
which is the maximum limit. Since the school is having another 748 students in
Higher Secondary School then the school is entitled to upgradation of one
Physical Education Teacher as Physical Education Director. The G.O. states the
upgradation is from the “existing” Physical Education Teacher, which means the
school is entitled to two PET and one Director only. The school is entitled to
upgrade from the existing PET and not a separate post of Director.
10. It is seen already four PET are serving in the school, which makes
one post is over and above the maximum three. When already one post of PET is
over and above the maximum limit, if approval for the appointment of the said
M.Karithikeyan is granted then the school would be having five Physical
Education Teachers, then two Physical Education Teachers would be over and
above the limit of three prescribed under G.O.Ms.No.525.
11. Therefore, this Court is of the considered opinion that the approval
cannot be granted for Karthikeyan appointment, since the said appointment is
beyond the prescribed limit of three under G.O.Ms.No.525.
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12. The Learned Senior Counsel appearing for the respondent school
submitted that the limit cannot be prescribed when the students’ strength is more
and the said issue is already settled by the Coordinated Bench in the case of
Director of School Education and others Vs. K.Uma reported in (2010) 2 MLJ
277, wherein it is held as under:
“23. As stated above, the normal understanding of the above
government order with regard to Physical Education Teachers is that the
High Schools would have maximum number of three Physical Education
Teachers and Higher Secondary School would be added one more
Physical Education Director in the name of Physical Education Director.
However there cannot be any ceiling with regard to the strength of
teachers as the same is bound to vary/increase as per the strength of the
student's. When the student strength is increased, the ceiling has to be
removed and required more Physical Education Teachers are to be
appointed, otherwise the students would suffer irreparably and the
government order would go against the very scheme of education.
24. Hence G.O.Ms.No.525 needs to be given a liberal interpretation and
the government is at liberty to reconsider the matter and issue
reasonable viable and appropriate norms with regard to appointment of
physical education teachers in the schools as per the strength of
students, considering the observations made by this court
expeditiously.”
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The aforesaid judgment had held that the understanding of the aforesaid G.O. is
that the High School can have three PET and the Higher Secondary can have one
Director, there cannot be any ceiling, if the student strength is increased then the
ceiling has to be removed and more PET can be sanctioned. Having held so, the
Division Bench has not directed to sanction the post, but had held the government
has liberty to reconsider the issue and issue appropriate norms based on the above
observation. This Court is also of the considered opinion that the Mandamus
cannot be granted against the government in the policy decision of the
government.
13. The Hon'ble Supreme Court in the case of State of W.B. v. Subhas
Kumar Chatterjee reported in (2010) 11 SCC 694 has observed that “No court
can issue Mandamus directing the authorities to act against provisions of law”. If
literal interpretation is given, then each school would seek over and above the
prescribed limit stated in the G.O.Ms.No.525, then the said G.O. would vanish.
Therefore, Mandamus cannot be granted to act against the G.O.
14. This Court has perused the reason for passing the G.O.Ms.No.525,
wherein it is stated that the establishment of new schools and increase of
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enrolment in the existing institutions made it difficult for the government to
support these schools with grants. Hence it was informed to the institutions that
recognition would be granted only if the institutions accept that the requirement of
additional posts cannot be sanctioned, no grant-in-aid would be extended. Initially
the institutions accepted but after granting recognition had filed writ petitions and
based on the orders, the government was compelled to pay grant-in-aid. Hence,
the “High Power Committee” was constituted and the committee suggested
revised norms for sanction of teaching posts to aided schools. The committee after
taking note of the changes in teaching methodology, improved availability of
teaching and learning materials, a reappraisal of the teacher-pupils ratio has been
made. Consultations with educationists were also held to obtain a clear picture of
the norms that would be conducive for effective teaching. Thereafter, the
government had issued G.O.Ms.No.525 fixing the norms. When the government is
having complete data about effective teaching norms, when the government is
having data about its financial viability, then the government is having power and
authority to fix the norms. But the Courts are not having any such data and no
data was placed before this Court, then the Courts cannot interfere in such
matters. When the experts in the education field were consulted, then the Courts
cannot interfere and substitute its opinion. Further this is within the purview of
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the policy decision of the government. Therefore, the Courts cannot interfere and
issue any direction to the government.
15. The Hon’ble Supreme Court in the case of the State of Bihar Vs.
Sachindra Narayan, reported in (2019) 3 SCC 803 had taken note of the
discretionary nature of a grant and has held that “the release of grant is in
discretion of the grantor and cannot be forced by the grantee”. In the case of State
of Odisha and another vs. Anup Kumar Senapati and another [Civil Appeal No.
7295 of 2019], in paragraph No.8, the Hon'ble Supreme Court had held that grant-
in-aid cannot be claimed as a matter of right. Therefore, the respondent school
cannot claim as a matter of right to grant approval and grant-in-aid.
16. The Writ Court had rightly directed the authority to consider but had
further held that the same shall be considered in the light of Division Bench
Judgment reported in (2010) 2 MLJ 277. But this Court is of the considered
opinion that the government cannot be compelled to grant approval, consequently
release grant-in-aid, dehors G.O.Ms.No.525. Therefore, the direction to consider
in the light of above judgement is erroneous and the present appeal preferred by
the State ought to be allowed.
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17.Accordingly, the writ appeal is allowed. The impugned order passed
by the Writ Court is set aside. The respondent herein is not entitled to any posts
beyond prescribed under G.O.Ms.No.525 and consequently, the appointment
cannot be approved. No costs. Consequently, connected miscellaneous petition is
closed.
[J.N.B., J.] [S.S.Y., J.]
28.04.2025
Index : Yes / No
Tmg
To
1.The 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,
Dindigul, Dindigul District.
4.The District Educational Officer,
Dindigul, Dindigul District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
28.04.2025
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