IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/05/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.30686 of 2006
and W.P.M.P.No.33607 of 2005
C. Manonmony ... Petitioner
-Vs-
1.State of Tamil Nadu
rep.by its Secretary,
Education Dpartment,
Fort St. George,
Chennai 600 009.
2.The Director of
School Education,
D.P.I.Campus,
College Road,
Chennai 600 006.
3. The Chief Educational Officer,
Nagercoil.
4.The District Educational Officer,
Kuzhithurai Educational District,
Kuzhithurai, Kanyakumari District.
5.Mar Mathew Kavukattu
Memorial High School,
rep.by its Correspondent,
Varuthattu, Medhu Kummal (PO),
Kanyakumari District.
6.The Correspondent,
Mar Mathew Kavukattu
Memorial High School,
Varuthattu, Medhu Kummal (PO)
Kanyakumari District. ...Respondents
This writ petition is filed under Article 226 of Constitution of
India, praying this Court to issue a writ of Certiorarified mandamus calling
for the records relating to the proceedings of the 2nd respondent vide
Na.Ka.No.71738/D1(1)/2002, culminating in his order dated 27.4 .2005, quash
the same and direct the second respondent to sanction the petitioner's post as
B.T.Assistant in the 5th respondent school, with effect from 2.7.1993.
!For Petitioner : Mr.N.Rajan
^For Respondents 1to 4: Mr.V.Karthikeyan,
Addl.Government Pleader
For Respondents 5 & 6 : Mr.Isaac Mohanlal
:O R D E R
By consent of both sides, the writ petition itself is taken up for
final disposal.
2. In this writ petition, petitioner seeks to quash the order of
the second respondent dated 27.4.2005 and direct the second respondent to
sanction the petitioner’s post as B.T.Assistant in the 5th respondent School
with effect from 2.7.1993.
3. The brief facts necessary for disposal of the writ petition
are as follows.
(a) Petitioner was appointed as B.T.Assistant in the 5th
respondent School from 2.7.1993, which is an Aided Minority School.
Petitioner passed M.A. and B.Ed degrees. Petitioner is fully qualified to
hold the post of B.T. Assistant as per Annexure V of the Tamil Nadu Private
Schools Regulation Rules, 1974, and the Tamil Nadu Minority Schools
(Recognition and Payment of Grants) Rules, 1977. The staff grant and
maintenance grant of the 5th respondent School is fully paid by the Government
and the sanction of post in the 5th respondent School is governed by the norms
issued by the Government from time to time. According to the affidavit, in
the 5th respondent school, one Headmaster, one Tamil Pandit, two B.T.
Assistants, 7 Secondary Grade Teachers, one Physical Education Teacher and 2
office assistants posts are sanctioned.
(b) Petitioner states that she was appointed in the 5th respondent
school on account of the requirement of additional post of B.T. Assistant due
to the increase in students strength. According to the petitioner, the
appointment was intimated to the respondents 2, 3 and 4 by the 5th respondent
through their periodical statement regarding the strength of staff. The 5th
respondent school is entitled to get additional sanction of one B.T.
Assistant post as per the Teacher-Pupils ratio norms prescribed by the first
respondent. The 5th respondent School repeatedly approached the 2nd and 4th
respondents for additional sanction of posts so as to claim salary of the
petitioner. Since no response was forthcoming from the 4th respondent, the
5th respondent sent a representation on 22.11.2000 and requested the second
respondent to sanction the B.T.Assistant post and two secondary grade teachers
posts. In the said representation, the 5th respondent stated that as per
G.O.Ms.No.525 School Education (D1) Department, dated 29.12.1997, the 5th
respondent school is eligible to be sanctioned additional B.T.Assistant and
two secondary grade posts. The said Government Order prescribed the ratio of
40 students for one teacher.
(c) According to the petitioner, she is working in the 5th
respondent school without salary from 1993 and she is married and having two
children. Petitioner averred in the affidavit that a legal notice was issued
on 4.2.2002 to the 2nd and 4th respondents requesting them to approve the
appointment of petitioner as B.T. Assistant in the 5th respondent School and
in spite of issuance of counsel notice, no steps having been taken, petitioner
filed W.P.No.16044 of 2002 before this Court and prayed for a direction to the
second respondent to sanction one B.T. Assistant post in the 5th respondent
School on the basis of the representation of the 5th respondent dated
22.11.2000 so as to enable the petitioner to get her post approved and get
salary. This Court by order dated 8.5.2002 directed the second respondent to
consider the representation of the management dated 22.11.2000 on merits and
pass orders within a period of six weeks.
(d) According to the petitioner, when the proposal was under
active consideration of the second respondent, 6th respondent prevented the
petitioner from reporting to duty from 5.6.2002, pursuant to which petitioner
sent a representation on 17.6.2002 to the second respondent and stated that
due to the non-approval of the petitioner’s appointment, she is being
disturbed by the 6th respondent. Since 5th respondent school is a minority
school, the second respondent refused to interfere and therefore, petitioner
filed W.P.No.39380 of 2002 and prayed for a direction to the 6th respondent to
permit the petitioner to work in the 5th respondent School as B.T. Assistant
on regular basis. The said writ petition was admitted on 25.10.2002 and the
same is pending.
(e) In the meantime, the second respondent passed the impugned
order pursuant to the direction of this Court in W.P.No.16044 of 2002 and
rejected the request of the 5th respondent School. Second respondent in the
impugned order stated that the request of the 5th respondent Management will
be considered as per G.O.Ms.No.525, School Education Department dated
29.12.1997, as and when the Government sanction additional posts to the aided
schools. The said order of the second respondent is in effect not rejection
of 5th respondent’s request for sanction of B.T. Assistant post in favour of
the petitioner, but it is only a reply intimating the sanction of post by the
Government in future. Petitioner having aggrieved due to the evasive reply
given by the second respondent through the impugned order, filed the present
writ petition.
3. Respondents 1 to 4 filed a counter affidavit, wherein it is
stated that the 5th respondent school is a minority school, granted
recognition and aid by the Government. The sanctioned post in the 5th
respondent School is one Headmaster, one Tamil Pandit, 2 B.T.Assistants, 8
Secondary Grade Teachers, among others. It is further stated that the
petitioner was working without sanction of post in the 5th respondent school
and she was appointed at the will and pleasure of the Correspondent only. The
proposal sent by the Correspondent on 22.11.20 00 was rejected on 18.6.2002.
The petitioner having been appointed without the sanction of post, salary
could not be claimed and disbursed. The 4th respondent was not responsible
for the appointment of the petitioner in the 6th respondent school. It is
further stated in the counter affidavit that as per the norms fixed in
G.O.Ms.No.525 dated 29.12.1997 the staff fixation was made only according to
the need of the school by the inspection made by the authorities on
consideration of strength of the school and therefore there is no illegality
or arbitrariness in the impugned order. According to the counter affidavit,
the strength of the classes 9 and 10 is 55 and 49 respectively, for which two
B.T. Assistant Posts are already sanctioned and therefore additional
B.T.Assistant post cannot be sanctioned.
4. Respondents 5 and 6 jointly filed a separate counter affidavit
and stated that 5th respondent School is one of the School established and
administered by the Syro Malabar Catholic Schools under the Diocese of
Thuckalay in Kanayakumari District and it is a Christian Religious Minority
School. The management appointed the petitioner considering her request to
handle classes in a non-sanctioned post and the petitioner was paid honorarium
of Rs.500/- per month. Since the petitioner is working in a non-sanctioned
post, the management was taking efforts to bring the petitioner under the
Diocese on the basis of student strength and when the school was reopened on
5.6.2002, the Correspondent told the petitioner that there was likelihood of
sanction of new posts in the upgraded Middle School in the same management
viz., Sacred Heart Middle School, Kamaraj Nagar, Padanthalumoodu. Petitioner
refused to accept the said suggestion and stopped attending the school from
the next day. Petitioner was also offered appointment in another School viz.,
Holy Family Higher Secondary School, Mukkuttukal, where there was chances of
sanction of new post of B.T. Assistant. However, petitioner refused to
accept the said suggestion also. According to the Counter affidavit, aid is
given only towards staff grant and no maintenance grant is given and the staff
strength is regulated by the Education Department by issuing Government
Orders. It is further stated that only two B.T. Assistants were sanctioned
to the School and according to G.O.M.S.No.525 dated 29.12.1997, 5th respondent
School would be eligible for one more post of B.T. Assistant, but the same is
not sanctioned by the department till date.
5. The learned counsel appearing for the petitioner argued that
only due to the non-sanction of post by the second respondent to the 5th
respondent School, petitioner was not permitted to work from 2.6.2002 . The
Management, being a fully aided School, is entitled to appoint teachers,
provided there is student strength and the appointee is fully qualified.
According to the counsel, 5th respondent Management, being a minority School,
need not get permission from the department to appoint a teacher and in
anticipation of sanction of post, petitioner was appointed as B.T. Assistant
from 2.7.1993 as the petitioner is fully qualified for the said post as per
Annexure V of the Tamil Nadu Recognised Private Schools Regulation Rules,
1974. It is further argued that nowhere in the counter affidavit filed by the
respondents 1 to 4 it is stated that due to want of student strength in the
5th respondent School no additional B.T. Assistant post was sanctioned.
Learned counsel pointed out that in fact, the strength of the school is
admitted by the respondents 1 to 4 in the counter affidavit at page 4 i.e.,
9th standard 55 students and 10th standard 49 students, totally 104 students.
In the counter affidavit filed by the management also at paragraph 7 it is
stated that 5th respondent School is having sufficient strength to get one
more B.T. Assistant post sanctioned as per G.O.Ms.No.525 dated 29.12.1997.
Therefore according to the learned counsel for the petitioner, the impugned
order of the second respondent refusing sanction of one additional B.T.
Assistant post to the 5th respondent School is improper and contrary to the
norms issued in G.O.Ms.No.525 dated 29.12.1997. The learned counsel
ultimately contended that though the impugned order postponed the sanction of
the post to the 5th respondent School, on enquiry it is learnt that due to the
plea of want of finance, the additional posts are not sanctioned to any aided
school.
6. The learned Government Advocate taking note of the averments
made in the counter affidavit submitted that the petitioner was appointed by
the 5th respondent Management in a non-sanctioned post and unless and until
the post is sanctioned, petitioner is not entitled to get her appointment
approved and get salary from the department. The learned counsel also
submitted that due to severe financial crisis in the Government, the sanction
of posts to aided schools are delayed.
7. The learned counsel for the Management viz., respondents 5 and
6 argued that it is true that the petitioner was appointed in 1993 in
anticipation of sanction of post by the respondents 1 to 4 and the 5 th
respondent School, being a fully aided school, unless and until the post is
sanctioned by the department, salary to the petitioner cannot be paid. The
learned counsel further submitted that the petitioner was offered transfer to
the another school due to want of sanction of post in the 5th respondent
School and if the department sanction one additional B.T. Assistant post in
the 5th respondent school, the Management has no objection to retain the
petitioner in the 5th respondent school. The learned counsel also submitted
that want of finance shall not be a ground to deny posts.
8. I have considered the rival submissions made by the learned
counsel for the petitioner, the learned Additional Government Pleader for the
respondents 1 to 4 as well as learned counsel for the respondents 5 and 6.
9. The point in issue is whether the 5th respondent Minority
Aided School is eligible to get sanction of one additional B.T. Assistant
post so as to enable the petitioner to get her appointment approved and
whether respondents 1 to 4 are entitled to postpone the sanction of posts to
aided schools.
10. Admittedly, the strength of the School in Standards 9 and 10
are more than 100 for all these years. As per G.O.Ms.No.525 School Education
(D1) Department, dated 29.12.1997, a High School section of an Aided School is
entitled to get sanction of following posts,
“III. HIGH SCHOOLS (Standards IX to X)
a) The teacher-pupil ratio of 1:40 will be followed. On this basis the
following norms will be followed:
Average attendance No.of posts
Upto 80 1 Head Master and
2 B.T.Assistants
The third post will be given when the strength exceeds 60 and
additional sections will be permitted in the slab of 40.
b) Eligibility for Language teachers will be as follows:
Total of sections No.of Language
in standards VI to X Teachers posts
(i) Upto 5 1
(ii) 6 to 10 2
(iii) 11 and above 3
c) When the strength in classes VI to X in High Schools exceeds 250,
one post of 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 of 3.”
From the above referred norms it is clear that the average attendance upto 80
in standards 9 and 10, the High School section is entitled to get one
Headmaster and two B.T. Assistant posts. The third post of B.T. Assistant
will be sanctioned if the strength exceeds 60 and additional section will be
permitted in the slab of 40. Thus, it is manifestly clear that the 5th
respondent School having more than 100 students in standards 9 and 10, is
entitled to get one more B.T Assistant post because the Government Order says
that the third post will be sanctioned when the strength exceeds 60. There is
no dispute with regard to the strength of the School and even according to the
counter affidavit filed by respondents 1 to 4, the strength of students in
standards 9th and 10th is more than 100. Therefore, as per the above
Teacher-Pupil ratio, the 5th respondent School is entitled to get the third
B.T. Assistant post as per the norms issued in G.O.Ms.No.525 dated 29.12.1997
came into force from 1.6.1998.
11. The validity of G.O.Ms.No.525 dated 29.12.1997 was challenged
before this Court. The Government justified the issuance of Government Order
and stated that only for equal distribution of posts to all aided schools the
said Government Order was issued and an assurance was also given in the
counter affidavit that whenever a school is in need of additional post as per
the students strength, necessary steps will be taken to sanction additional
post. The said portion of the counter affidavit was extracted in the judgment
reported in 1999 (1) MLJ 635 (North Arcot Ambedkar and Sambuvarayar District
recognised Private Aided Primary and Middle Schools Managers and Teacher
Managers Association v. The State of Tamil Nadu), which reads thus,
“… In fact, there is an assurance in the counter itself (in para
23) that when the school is found eligible for additional post as per the
revised norms, necessary steps will be taken to sanction additional posts.”
From the above stand it is made clear by the Government before this Court that
whenever School is in need of additional sanction of post, it will be
sanctioned, if the norms issued in G.O.Ms.No.525 dated 29.12.1997 is
satisfied.
12. G.O.Ms.No.525 dated 29.12.1997 was given effect from 1.6.1998.
Hence the 5th respondent School is eligible to be sanctioned one additional
post of B.T. Assistant at least from 1.6.1998 and on such sanction of post by
the first respondent to the 5th respondent School, petitioner is entitled to
get B.T Assistant salary, at least from 1.6.1 998. In the impugned order,
nowhere it is stated that the 5th respondent School is not entitled to get
sanction of additional B.T. Assistant post. The impugned order only states
that as and when need arises, request of the 5th respondent School will be
considered.
13. The submission of the learned counsel for the petitioner that
want of finance cannot be a ground to deny sanction of the post to an Aided
School is also well founded.
(a) A Division Bench of this Court in the decision reported in
1988 WLR 130 (Church of South India v. The Government of Tamil Nadu) held
that want of finance is not a ground to deny teaching post to an aided school.
(b) Similar issue arose before the Honourable Supreme Court in the
decision reported in AIR 1996 SC 1 (State of Maharashtra v. Manubhai Pragaji
Vashi). In the said judgment, non-extension of grant in aid to a private law
college was considered by the Honourable Supreme Court. The Honourable
Supreme Court held that a duty is cast on the State to extend the grant in aid
and the same cannot be whittled down either by pleading paucity of funds or
otherwise and ultimately directed the Government to extend the grant in aid
scheme to all Government Recognised Private Law Colleges.
(c) In AIR 2000 SC 634 (Chanigarh Administration v. Rajni Vali)
in paragraph 6 the Honourable Supreme Court held as follows:
“… imparting primary and secondary education to the students is the
bounden duty of the state administration. It is a constitutional mandate that
the State shall ensure proper education to the students on whom the future of
the Society depends. In line with this principle, the State has enacted
Statute and framed Rules and Regulations to control/regulate establishment and
running of private schools at different levels. The State Government provides
grant-in-aid to private schools with a view to ensure smooth running of the
institution and to ensure that the standard of teaching does not suffer on
account of paucity of funds. It needs no emphasis that appointment of
qualified and efficient teachers is a sine qua non for maintaining high
standard of teaching in any educational institution. Keeping in mind these
and other relevant factors this Court in number of cases has intervened for
setting right any discriminatory treatment meted out to teaching and
non-teaching staff of a particular institution or a class of institutions.”
In paragraph 10, the Supreme Court considered the contention of want of fund
in the following manner,
“Coming to the contention of the appellants that the Chandigarh
Administration will find it difficult to bear the additional financial burden
if the claim of the respondents 1 to 12 is accepted, we need only say that
such a contention raised in different cases of similar nature has been
rejected by this Court. The State Administration cannot shirk its
responsibility of ensuring proper education in schools and colleges on the
plea of lack of resources. It is for the authorities running the
Administration to find out the ways and means of securing funds for the
purpose. We do not deem it necessary to consider this question in further
detail. The contention raised by the appellants in this regard is rejected.
…”
(d) A constitution Bench of the Honourable Supreme Court in the
decision reported in AIR 1992 SC 1630 (St.Stephen’s College v. University of
Delhi) considered the issue of aid to minority institutions. In paragraph 89
the Supreme Court held thus,
“The educational institutions are not business houses. They do not
generate wealth. They cannot survive without public funds or private aid. It
is said that there is also restraint on collection of students fees. With the
restraint on collection of fees, the minorities cannot be saddled with the
burden of maintaining educational institutions without grant-in-aid.
They do not have economic advantage over others. It is not possible to have
educational institutions without State aid. This was also the view expressed
by Das, C.J., in Re: Kerala Education Bill case. The minorities cannot,
therefore, be asked to maintain educational institutions on their own.”
(e) A Division Bench of this Court in a judgment reported in 1997
WLR 619 (State of Tamil Nadu and 4 others v. Melapalayam Muslim Magalir Kalvi
Sangam)(DB) considered the plea of the Government as to the non-availability
of funds and held that the Government having granted temporary recognition of
approval of standards 6 to 8 with aid, the same cannot be denied on the plea
of want of funds. In paragraph 6 the Court held thus,
“… The citizens of the country have a fundamental right to
education, which right flows from Article 21. This right is, however, not an
absolute right. In other words, every child/citizen of this country has a
right to free education until he completes the age of fourteen years.
Thereafter, his right to education is subject to the limits of economic
capacity and development of the State. …”
In fact, the Division Bench followed the Judgment of the Supreme Court
reported in AIR 1958 SC 956 (In re The Kerala Education Bill, 1957) wherein it
is held that the minorities cannot be asked to maintain the educational
institutions of their own funds.
(f) The said right to education under Article 21 was considered by
the Supreme court in Unnikrishnan J.P. v. State of Andhra Pradesh, AIR 1993
SC 2178. The said proposition of the law was also approved by the
Constitutional Bench decision in TMA Pai Foundation and others V. State of
Karnataka, (2002) 8 SCC 481.
(g) By Judgment dated 23.8.1990 in W.A.No.24 of 1990, a Division
Bench of this Court held that once recognition is granted with aid to a
private School, the sanction of posts shall be made automatically if the norms
for the sanction of post is satisfied, otherwise the grant of recognition will
be rendered meaningless. The Division Bench upheld the order of the learned
single Judge made in W.P.No.4570 of 1987 dated 27.9.1989 (T.Sekarapillai and 5
others v. The State of Tamil Nadu and 2 others) with slight modification. In
the decision reported in 1999 WLR 555 (The C.S.I. Kanyakumari Diocese v.
Government of Tamil Nadu and others) another Division Bench of this Court
while dealing with the request of a minority management to sanction additional
posts, directed to sanction posts based on student strength as per G.O.
Ms.No.250 dated 29.2.1964 from 18.2.1991 within three months. S.L.P.(Civil)
No.19141 and 19142 of 1998 filed against the order of the Division Bench was
dismissed by the Honourable Supreme Court by order dated 16.12.1999. The
respondents 1 to 4 herein implemented the said order by sanctioning additional
posts retrospectively to C.S.I. Primary School Venkanji, Kanyakumari
District.
(h) Insofar as the aided schools are concerned, the Hon’ble Mr.
Justice K.Venkataswamy (as he then was) in W.P.No.15966 of 1990 dated 21.1
2.1993 allowed the writ petition filed by the management and directed sanction
of one Botany P.G. Assistant post. Earlier, a Division Bench of this Court
in W.A.No.28 of 1990 by Judgment dated 10.1.1990 ( Dr.A.S.Anand,J. (as he
then was) & Nainar Sundaram,J.) took a similar view following the decision
reported in 1988 WLR 130 (cited supra). The same view was taken by this Court
in the following unreported decisions insofar as the sanction of posts to
aided colleges are concerned.
(i) W.P.No.2093 of 1994 dated 10.4.1995 (R.Jayasimha Babu, J.)
(ii) W.P.No.1048 of 1994 dated 17.4.1996 (M.Srinivasan, J, Acting
Chief Justice (as he then was)). The said order was confirmed by
the Division Bench in W.A.No.682 of 1996 dated 26.7.1996
(K.A.Swamy, J., Chief Justice & AR.Lakshman, J. (as he then
was)).
(iii) W.P.No.6758 of 1993 dated 13.9.1996 (Shivraj patil, J. (as he then
was)).
(iv) W.P.No.5602 of 1996 dated 20.8.1997 (P.Sathasivam,J.)
14. The right to get aid by minority managements which were forced
to give an undertaking while getting recognition that the schools will not
claim aid forever was also considered by this Court in series of decisions. A
learned single Judge of this court in W.P.No.6592 of 1993 (Arokia Annai Middle
School, Palayam, Kanyakumari District and another v. The State of Tamil Nadu
and two others) dated 11.10.1993 ( K.S.Bakthavatchalam, J.) held that even if
the management has given an undertaking that it will not claim aid from the
Government that undertaking has no value and a direction was issued to
sanction post to the said school. The respondents filed W.A.No.1040 of 1997
against the said order of the learned single Judge and the same was dismissed
by a Division Bench of this Court on 11.8.1997. The SLP filed against the
said decision of the Division Bench was also dismissed on 17.8.1 998 and
finally the Government sanctioned posts to the said School.
15. The said judgment of the Division Bench was followed by
another single Judge in the decision in W.P.No.5831 of 1997 dated 11.6.1998
(K.Sampath, J.). Writ Appeal filed against the said order in W.A.No.228 of
1999 was also dismissed by this 29.1.2005.
16. Here the 5th respondent school is granted recognition with
aid. Thus the matter in issue is already settled with regard to the plea of
want of finance by the Government, pursuant to which, post cannot be denied to
the recognised schools and rticularly to the aided schools. As rightly
contended by the learned counsel for the petitioner a solemn undertaking was
given before this Court by the first respondent to the effect that as and when
the School is in need of additional post it will be sanctioned and the said
undertaking is recorded in the judgment reported in 1999 (1) MLJ 635 (cited
supra). In view of the settled position of the law with regard to the
sanction of post to the aided schools as and when the school is eligible to
get additional post, the respondents 1 to 4 are not justified in not
sanctioning one additional B.T. Assistant post to the 5th respondent school,
at least from 1.6.1998.
17. G.O.Ms.No.525 dated 29.12.1997 having came into force from
1.6.1 998, the first respondent is directed to sanction one additional B.T.
Assistant post to the 5th respondent school in favour of the petitioner from
1.6.1998 and the 4th respondent is directed to sanction salary of B.T.
Assistant to the petitioner 1.6.1998 to 31.5.2002. Since the petitioner has
not worked from 1.6.2002, she is not entitled to get salary from 1.6.2002 to
31.5.2006. The 5th respondent is directed to restore the services of the
petitioner as B.T. Assistant from the beginning of the academic year
2006-2007. It is made clear that the petitioner shall not be entitled to
claim any salary from the management funds prior to 1.6.1998 as she was
appointed in an unsanctioned post.
18. The writ petition is partly allowed with the above directions.
No costs. Connected WPMP No.33607 of 2005 is closed.
vr
To
1. The Secretary, Education Department,
Fort St. George, Chennai 600 009.
2. The Director of School Education,
D.P.I.Campus, College Road, Chennai 600 006.
3. The Chief Educational Officer, Nagercoil.
4. The District Educational Officer, Kuzhithurai Educational District,
Kuzhithurai, Kanyakumari District.