A. Belavendran v. The Joint Director of School Education & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 27.07.2009CoramThe Honourable Mrs. Justice PRABHA SRIDEVANandThe Honourable Mr. Justice C.T. SELVAMW.A. No.556 of 2008A. Belavendran... Appellant -Vs.-1. The Joint Director ofSchool Education, DPI Compound, College Road, Nungambakkam, Chennai.2. The District Educational Officer, Jayagopal Garodia GovernmentGirls Higher Secondary School, Choolaimedu High Road, Chennai – 600 094.3. The Provincial, Donbosco Institute, CITADEL, No.18, Landans Road, Kilpauk, Chennai – 600 010.4. St. Gabriel's Higher Secondary School, rep. by its Correspondent, No.28, Prakasam Salai, Chennai – 600 108.5. Bro. S. Anandaraj... RespondentsAppeal filed against the order dated 15.4.2008 passed inW.P. No.37693 of 2007 on the file of this Court. A writ petititonsfiled under Article 226 of the Constitution of India for issuance ofa writ of Certiorarified Mandamus calling for the records of thefourth respondent calling for applications from candidates outsidethe fourth respondent School for the post of B.T. Assistant (English) https://hcservices.ecourts.gov.in/hcservices/ under an undated Circular displayed on the notice board of the fourthrespondent school on 18.12.2007 and quash the same and direct thethird and fourth respondents to appoint the petitioner to the post ofB.T. Assistant (English) in the fourth respondent School.For Appellant : Mr. M. RamamoorthiFor Respondent : Mr. A.C. Manibharathi for R1 and R2 Mr. Joseph Thatheus Jerome for R3 to R5J U D G M E N T(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)The petitioner is working as Secondary Grade Assistant inthe fourth respondent-school, which is fully aided and is also aChristian Religious Minority Education Institution. He was confirmedin service on 14.11.2001. The petitioner has filed this W.P.No.37693 of 2007, aggrieved by the appointment of the fifthrespondent as B.T. Assistant (English), overlooking his right for thesaid post and in violation of Rule 15(4) of the Tamil Nadu RecognisedPrivate Schools (Regulation) Rules, 1974 ("Rules" in short).2. According to the petitioner, he possessed a diploma inteacher education in April, 1987, B.A. (English) degree from MadrasUniversity in June, 1991, B.Ed. degree from Manonmaniam SundaranarUniversity in April, 1993, M.A. (English) degree from MadrasUniversity in May, 1998 and M.Ed. Degree from the same University inOctober, 1998. The post of B.T. Assistant (English) was held by oneChristraj, who resigned from service on 13.4.2004. In his place, oneSatheesh was appointed, overlooking the petitioner's claim. 3. The petitioner filed W.P. No.3619 of 2005 and thefourth respondent, in its counter, stated that the resignation ofChristuraj was not approved and therefore, the said writ petition waspremature. This Court disposed of the above writ petition on thesubmissions made by respondents 3 and 4, with an observation that thepetitioner's case will be considered in accordance with law alongwith other eligible persons, if any, in the same school. 4. On 15.11.2007, when the department has relievedChristraj on his resignation, regular vacancy arose and according tothe petitioner, he was entitled to be appointed in the regularvacancy and he is the only qualified person to hold the said post.Thereafter, applications were called for from outside the school andthe Circular to that effect was also pasted in the notice board, https://hcservices.ecourts.gov.in/hcservices/ calling for the applications to the post of B.T. Assistant (English),informing them that the interview and the written test was to be heldon 21.12.2007.5. Immediately, the petitioner filed W.P. No.37693 of 2007.On 20.12.2007, in a miscellaneous petition in M.P. No.2 of 2007, thisCourt directed the school to consider the promotion of the petitionerto the said post. But, ignoring the said direction, the respondentshad appointed the fifth respondent to the said post and therefore,the fifth respondent was impleaded in the said writ petition.6. In the counter filed on behalf of third and fourthrespondents, the Correspondent of the school submitted that theallegation of the petitioner in the affidavit that the selection tothe post of B.T. Assistant was on the basis of the undated circularis wrong, but actually the school issued the circular dated14.12.2007, informing the teachers in the schools and in theemployment rolls of the education Board. It is also submitted thatRule 15(4) of the Rules is not applicable to the minorityinstitutions and even if Rule 15(4) of the Rules applies, it does notprohibit the appointments being made from outsiders, if no suitablecandidate with merit is found for promotion in the school. 7. In the interview conducted on 21.12.2007, the writpetitioner and another person participated in the process. Accordingto the respondents, the writ petitioner gave a letter that he aloneshould be appointed. A comparative evaluation of the candidates'performance is set down in the counter and it shows that in thewritten test, the fifth respondent had scored more than the writpetitioner; in the model class, the fifth respondent scored more thanthe writ petitioner and in the oral interview, the writ petitionerscored more than the fifth respondent and in overall assessment, thefifth respondent scored over the writ petitioner and the fifthrespondent was more meritorious, efficient and qualified than thewrit petitioner.8. The recommendation of the Board got the concurrence ofthe third respondent-educational agency and the fifth respondent wasappointed on 11.1.2008. Respondents 3 and 4 also submitted thathaving participated in the selection process, the writ petitionercannot question the same.9. To this, a rejoinder affidavit has been filed, whereinit is submitted that the fifth respondent is an outsider. Thequestion put in the selection process related to Theology and not inEnglish and the entire test was biased.10. Learned Single Judge, following the decision reportedin the case of EKA RATCHAGAR SABAI HIGHER SECONDARY SCHOOL ANDANOTHER v. K. SUMATHI AND ANOTHER (2007(4) Law Weekly 617), dismissed https://hcservices.ecourts.gov.in/hcservices/ the writ petition. As against the same, the present writ appeal hasbeen filed.11. Learned counsel appearing for the appellant/writpetitioner submitted that in a batch of writ petitions in W.P.No.4478 of 1974 etc. batch filed by the respondents, the First Benchof this Court held that sections 8(1)(a), 11(1)(b), 12(1), 14 to 18,21(2) to 26, 31 to 33, 39(4), 41 to 45 and Rules 7, 9 except Clauses(e) and (k) of sub rules (2) Rules 10 to 14, 16 to 18 and 22 to 24are inapplicable to minority institutions and therefore, it will beseen that Rule 15 is applicable. The Supreme Court, by their orderdated 4.3.2003, had remitted the matters to the High Court for freshconsideration in accordance with law and specifically observed thatstatus quo shall continue.12. Learned counsel submitted that the words "status quoshall continue" would mean that Rule 15(4) of the Rules wouldcontinue to be applicable to the minority institution and if so, therespondents will have to appoint the petitioner and as per Rule 15(4)(2) of the Rules, only if there are no qualified and suitableteachers in that school, the respondents could have resorted toappointment of Teachers from any other school.13. Learned counsel submitted that the stand of respondents3 and 4 that the fourth respondent comes under corporate Managementand the fifth respondent is the Teacher in one of the schools comingunder the corporate management is not supported by any record.Learned counsel submitted that the learned Single Judge, whilerelying on the decision, has not taken note of the specific orders ofthe Supreme Court in the appeals filed against the order passed inbatch of writ petitions on the applicability of the Act and Rules tothe minority institutions.14. Learned counsel also submitted that in the case of THECORRESPONDENT, MALANKARA SYRIAN CATHOLIC SCHOOL, MARTHANDAM v.RABINSON JACOB (1998-III MLJ 595), this Court had held that theCorporate Management has never been accepted, after coming into forceof the Act. Learned counsel also relied on SHAMS, DR. v. THECOMMISSIONER OF COLLEGIATE EDUCATION (1998(1) CTC 609), where thelearned Single Judge directed the promotion of the petitioner as headof the department in a minority institution, in view of the fact thatthe Act and the scheme are intended to confer benefit on the teacherand the respondents-College cannot deny the said benefits.15. Learned counsel also relied on M. CHELLADORAI v. JOINTDIRECTOR OF SCHOOL EDUCATION & OTHERS (2003 WLR 304), where, againwith regard to a minority institution, the learned Single Judge heldthat for the appointment to the post of B.T. Assistant, Rule 15(4) ofthe Rules applies and in paragraph 24, learned Judge has held asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "24. In the foregoing circumstances, whilefollowing the earlier judgment of this Court aswell as the law laid down by the Apex Court, aswell as that of larger bench in TMA PaiFoundation's case, this Court answers the firstpoint in favour of the writ petitioner. Thesecond point is answered holding that thepetitioner is entitled to be promoted, as thepetitioner alone is in the feeder category andnot the 4th respondent. On the third point alsothis Court holds that Rule 15(4) could very wellbe pressed into service or enforced by thepetitioner as against the third respondentschool, which is a minority institution in viewof the binding pronouncement of the Apex Court."16. Learned counsel appearing for the respondent-Schoolsubmitted that Rule 15(4) of the Rules is not applicable and thewords "status quo" of the Supreme Court cannot be understood to meanthat in any event even admitting Rule 15(4) of the Rules isapplicable the school should ignore the merit.17. We have to understand the order of the Supreme Court incivil appeals, which were filed by the State of Tamil Nadu againstthe order dated 17.12.1975 in the batch of writ petitions in W.P.Nos.4478 of 1974 etc. The minority schools challenged the validity ofmost of the provisions of the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973 as invading violation under Article 30(1).The Division Bench, while summing up, declared certain sections asinapplicable to minority institution. In the order of remitting thematter, the Supreme Court held thus:-"The several questions raised in these mattersare covered by the decision of a ConstitutionBench of this Court in writ Petition No.317/1993-T.M.A. Pai Foundation & Ors. Etc. Vs. State ofKarnataka & Ors. Etc. and connected batch decidedon 31st October, 2002. Since larger questionshave been decided by this Court, it becomesnecessary for the High Courts to re-examine thematters which have been decided and which are inappeal before this Court. The orders of the HighCourt are, therefore, set aside without expressingany opinion on merits and the matters are remittedto the High Court for fresh consideration inaccordance with law.Status quo shall continue unless the HighCourt so decides to modify the same by an https://hcservices.ecourts.gov.in/hcservices/ appropriate application made to it by any of theparties. The parties are at liberty to file freshpleadings, if any, within the period fixed by theHigh Courts. It is made clear that all statutoryenactments, orders, schemes, regulations will haveto be brought in conformity with the decision ofthe Constitution Bench of this Court in T.M.A. PaiFoundation's case decided on 31.10.2002. As andwhen any problem arises the same can be dealt withby an appropriate Forum in an appropriateproceeding.The appeals are disposed of accordingly."18. Therefore, the words "status quo" shall be construedonly with regard to those provisions, which were declared asinapplicable insofar as they apply to the particular schools. Thisis because, the Supreme Court, in the same order, observed that thequestions raised were covered by the decisions in T.M.A. PaiFoundation's case. Since the larger questions have been decided, theHigh Court had to examine the matter in the light of what is statedby the Supreme court. The Division Bench did not declare Rule 15(4)of the Rules as inapplicable. We are informed that the school didnot challenge it. But, however, the Supreme Court has observed thatall statutory enactments, orders, schemes, regulations will have tobe brought in conformity with the decision of the Constitution Benchof this Court in T.M.A. Pai Foundation's case decided on 31.10.2002. 19. Therefore, our decision will have to be in line withT.M.A. Pai Foundation's case. 2007 AIR SCW 132 cited supra dealtwith appointment of Principal under the Kerala University Act, whichreads as follows:-"27. It is thus clear that the freedom tochoose the person to be appointed as Principalhas always been recognised as a vital facet ofthe right to administer the educationalinstitution. This has not been, in any way,diluted or altered by TMA Pai. Having regard tothe key role played by the Principal in themanagement and administration of the educationalinstitution, there can be no doubt that the rightto choose the Principal is an important part ofthe right of administration and even if theinstitution is aided, there can be nointerference with the said right. The fact thatthe post of the Principal/Headmaster is alsocovered by State aid, will make no difference". https://hcservices.ecourts.gov.in/hcservices/

20. In T.M.A. PAI's case cited supra, in paragraph 161, thesecond part of the answer to question 5(c) applicable to aidedminority institutions runs thus:-"For redressing the grievances of employees ofaided and unaided institutions who are subjectedto punishment or termination from service, amechanism will have to be evolved, and in ouropinion, appropriate tribunals could beconstituted, and till then, such tribunals couldbe presided over by a judicial officer of the rankof District Judge.The State or other controlling authorities,however, can always prescribe the minimumqualification, experience and other conditionsbearing on the merit of an individual for beingappointed as a teacher or a principal of anyeducational institution.Regulations can be framed governing serviceconditions for teaching and other staff for whomaid is provided by the State, without interferingwith the overall administrative control of themanagement over the staff."21. The general principles relating to establishment/administration of education institution by minorities as reiteratedin P.A. INAMDAR's case are as follows:-"19(i) ............................(a) To choose its governing body in whom thefounders of the institution have faith andconfidence to conduct and manage the affairs ofthe institution.(b) To appoint teaching staff(Teachers/Lecturers and Head-Masters / Principals)as also non-teaching staff; and to take action ifthere is dereliction of duty on the part of any ofits employees;(c) To admit eligible students of theirchoice and to set up a reasonable fee structure"22. We are concerned only with principle 'b' referredabove, which deals with their right to appoint teaching staffincluding teachers and lecturers. Though the learned counselappearing for the petitioner submitted that the right of the minorityinstitutions is secured only with reference to appointment of the https://hcservices.ecourts.gov.in/hcservices/ Principal of their choice, the general principles crystallized aboveregarding the establishment and administration of educationinstitution would show clearly that the right of the institution toestablish and administer the educational institutions by minorities,includes the appointment of teaching staff also and in paragraph 21of 2007 AIR SCW 132 (cited supra), the Supreme Court has held asfollows:-"21. We may also recapitulate the extent ofregulation by the State, permissible in respect ofemployees of minority educational institutionsreceiving aid from the State, as clarified andcrystallised in TMA Pai. The State can prescribe:(i) the minimum qualifications, experienceand other criteria bearing on merit, for makingappointments,(ii) the service conditions of employeeswithout interfering with the overalladministrative control by the Management over thestaff.(iii) a mechanism for redressal of thegrievances of the employees.(iv) the conditions for the properutilisation of the aid by the educationalinstitutions, without abridging or diluting theright to establish and administer educationalinstitutions.In other words, all laws made by the State toregulate the administration of educationalinstitutions, and grant of aid, will apply tominority educational institutions also. But ifany such regulations interfere with the overalladministrative control by the Management over thestaff, or abridges/dilutes, in any other manner,the right to establish and administer educationalinstitutions, such regulations, to that extentwill be inapplicable to minority institution." 23. In 2007(4) Law Weekly 617 (cited supra), which isalmost identical to the present case, the Division Bench dealt witheach of the judgments that have been cited before us. The minorityinstitutions' right of appointment of Principals/Headmasters andTeachers of their choice have been protected under Article 30(1) ofthe Constitution of India in the above case. As observed by theSupreme Court in St. Xavier's case, the Division Bench held that https://hcservices.ecourts.gov.in/hcservices/ though it relates to appointment of Principal, the same logic andratio would be applicable to the appointment of Teachers also and theDivision Bench further held that since the matter has been decided bythe Supreme Court in the decision in (2007 (1) SCC 386), theinterpretation given earlier by different Judges of this Court cannothold good and therefore the necessary conclusion is that thediscretion of the Management to appoint Teachers of its own choice(of course a Teacher, who is otherwise qualified and eligible as perthe prescribed regulations) cannot be curtailed through the processof rules, regulations or other executive instructions.24. We see no reason to differ from the view of theDivision Bench of this Court since it is in line with the SupremeCourt's pronouncement. Further, we need not go into theapplicability of Rule 15(4) of the Rules, since the Supreme Court hasobserved that all enactments must be brought in line with the T.M.A.PAI FOUNDATION's case. The principles laid down in T.M.A. PAIFOUNDATION's case have been crystallized in P.A. INAMDAR's case,which is again reiterated in SECRETARY, MALANKARA SYRIAN CATHOLICCOLLEGE's case. In such circumstances, the writ appeal is dismissed.No costs.ssa. Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo:1. The Joint Director ofSchool Education, DPI Compound, College Road, Nungambakkam, Chennai.2. The District Educational Officer, Jayagopal Garodia GovernmentGirls Higher Secondary School, Choolaimedu High Road, Chennai – 600 094.+ 2 CC to Ar. M.Joseph thatheusjerome Advocate SR.34850.+ 1 cc to the Government pleader High Court, Madras Sr.32526.W.A. No.556 of 2008LA(CO)EU 7.09.2009.