Francis Edward v. Government of Tamil Nadu

For 5th Respondent:Mr.Godson Swaminath,for Mr.Issac MohanlalO R D E RThe prayer in the writ petition is to issue a writ of mandamusdirecting the respondents 1 and 2 to sanction the post of PhysicalEducation Teacher in the 5th respondent School and further direct therespondents to pay salary from 9.11.1988.2.The case of the petitioner is that the 5th respondentSchool is a Private Minority Aided School. The 5th respondent Schoolwas originally established and administered as Elementary School,which was upgraded as Middle School from 1.8.1981 and furtherupgraded as High School from 1.6.1988. One post each of Headmaster,B.T.Assistant/Graduate Teacher, Tamil Pandit and Office Assistantwere sanctioned to the High School setions with effect from 1.6.1994and no Physical Education Teacher post and Junior Assistant postwere sanctioned. Petitioner states, the strength of the schoolexceeded 300 from 1994-95; during the year 1988-89 the studentstrength was 203; and during the year 1989-90 the strength was 250.The 5th respondent management, in anticipation of the sanction ofPhysical Education Teacher post, appointed the petitioner asPhysical Education Teacher from 9.11.1988. The petitioner claimsthat he is fully qualified to hold the said post as he had passedB.A. and D.P.Ed degrees. Before joining in the 5th respondentSchool, the petitioner served in Antonia Desoza High School, Bombay,from June, 1983 to November, 1988, and he resigned from the saidpost and joined in the 5th respondent school on 9.11.1988.3.The 5th respondent submitted representations to therespondents 1 to 4 for sanction of one Physical Education Teacherpost as per G.O.Ms.No.340 Education Department, dated 1.4.1982,which states that one post of Physical Education Teacher is allowedto High Schools, if the student strength exceeds 300. In the year2000, the respondents 3 and 4 recommended for sanction of PhysicalEducation Teacher post for the 5th respondent School. The Schoolmanagement thereafter having failed to take any further steps andthe petitioner having been appointed and working in the 5threspondent school from 9.11.1988 without salary and other benefits,he has chosen to file the above writ petition for sanction of thepost to the 5th respondent School and for consequential payment ofsalary and other benefits.4.According to the petitioner, the 4th respondent sent areport on 21.12.2001 and requested the third respondent for sanctionof the post. The second respondent through his proceedings dated20.4.2002 called for certain particulars from the 5th respondentSchool, which was also furnished by the 5th respondent. The https://hcservices.ecourts.gov.in/hcservices/ petitioner being the aggrieved person, submitted representations on27.1.1995, 21.9.1995, 7.10.1997, 19.7.1999, 9.12.1999 and 18.7.2002and requested to sanction the post.5.The writ petition was admitted by this Court on 20.8.2002,but no counter affidavit is filed by respondents 1 to 4. However,the learned Additional Government Pleader on the basis of theinstructions given by the 4th respondent argued the case.6.The learned counsel appearing for the petitioner arguedthat such of those schools which were opened/upgraded during theperiod 1988-89 and 1989-90, on condition that no amount will be paidfor the initial period of three years, were granted sanction of postby the Government through G.O.Ms.No.50 Education, Science andTechnology Department, dated 20.1.1995, with effect from 1.6.1994.The second respondent through his proceedings dated 27.1.1995sanctioned one post each of Headmaster, B.T.Assistant, Tamil Panditand Office Assistant, with effect from 1.6.1994. The said sanctionof post was ordered following the guidelines issued for the sanctionof posts in G.O.Ms.No.340 Education Department, dated 1.4.1992. Inthe said Government Order it is stated that if the strength of theSchool exceeds 300, the School is entitled to get sanction of onepost of Physical Education Teacher. The learned counsel for thepetitioner further submitted that the strength of the School wasmore than 300 at least from 1.6.1994. For the academic year 1994-1995 the strength of the School was 302; for the year 1995-96 thestrength was 332; for 1996-97 the strength was 333; for 1997-98 thestrength was 346; and for 1998-99 the strength was 321 for standards6 to 10. The management of the School also sent a representation tothe second respondent on 7.12.1999 and requested to sanctionPhysical Education Teacher post. The 4th respondent through hisproceedings dated 4.8.2000 requested the third respondent to allotone post of Physical Education Teacher if any post is found surplusin any other school. The second respondent through his proeedingsdated 20.4.2002 sent a communication to the third respondent to findout as to whether any post is found surplus in other school forallotment to the 5th respondent School for Physical Education Teacherpost.7.The learned counsel for the 5th respondent supported thecontentions of the learned counsel for the petitioner and submittedthat the 5th respondent School having been granted 4 posts viz.,Headmaster, B.T.Assistant, Tamil Pandit and Office Assistant and the5th respondent School having satisfied the norms for the sanction ofPhysical Education Teacher post, at least from 1.6.1994, as thestrength of the school exceeds 300, the respondents 1 to 4 are boundto sanction one post of Physical Education Teacher from 1.6.1994, sothat the petitioner may get his appointment approved from the saiddate and get salary. https://hcservices.ecourts.gov.in/hcservices/

8.The learned Additional Government Pleader on instructionssubmitted that no physical education Teacher post is sanctioned tothe 5th respndent school from 1.6.1994. The petitioner having beenapointed in a non-sanctioned post by the 5th respondent management,he can get salary only from the 5th respondent.9.I have considered the rival submissions made by thelearned counsel for the petitioner, learned Additional GovernmentPleader for the respondents 1 to 4 and learned counsel for the 5threspondent School.10.The 5th respondent school is a Christian Religious MinoritySchool. Admittedly the High School sections were grantedrecognition without aid for a period of three years. It is theadmitted case of the petitioner as well as the respondents that theschools opened/upgraded during the year 1988-89 and 1989-90 oncondition that no grant will be paid for three years, have beengranted sanction of posts from 1.6.1994 through G.O.Ms.No.50Education Science and Technology Department, dated 20.1.1995, witheffect from 1.6.1994. The proceedings of the second respondentdated 27.1.1995 clearly demonstrates that the 5th respondent Schoolwas sanctioned four posts viz., Headmaster, B.T.Assistant, TamilPandit and Office Assistant from 1.6.1994, consequent to theissuance of G.O.Ms.No.340 Education Department, dated 1.4.1992 andG.O.Ms.NO.50 Education, Science and Technology Department, dated20.1.1995. For proper appreciation G.O.Ms.No.50 Education, Scienceand Technology Department, dated 20.1.1995 is extracted hereunder:"GOVERNMENT OF TAMIL NADUABSTRACTSchools – Recognised Private Schools –Elementary/Middle/High/Higher Secondary Schools –Opened/Upgraded during 1988-89 and 1989-90 –Assessment of grant from 1.6.1994 – Orders Issued.-----------------------------------------------------EDUCATION, SCIENCE & TECHNOLOGY (D1) DEPARTMENTG.O.Ms.No.50Dated:20-1-95READ:1.G.O.Ms.No.340 Education,dated 1-4-92.ORDER:The request for extending staff salary grantfrom State Government funds to recognised PrivateSchools (Minority as well as non-minority)opened/upgraded during the period 1988-89 and 1989-90 https://hcservices.ecourts.gov.in/hcservices/ on condition of non-payment of grant for the initialthree years has been under the consideration ofGovernment. Though in none of these cases, theGovernment have given any specific commitment thatthey will take over the grant liability after 3years, yet the matter has been carefully examined bythe Government on compassionate grounds having regardto the strength of students, number of standards ineach school and also the norms for sanction of postsprescribed in G.O.Ms.No.340 Education dated 1.4.92.The Government after careful consideration, sanctionteaching and non-teaching posts to the schools asindicated in the Annexures I, II and III to thisorder for assessment of salary grant with effect from1-6-1994. The Director of Elementary Education andDirector of School Education are authorised to permitassessment of salary grant for the posts in theschools under their administrative contract asindicated in the Annexure I, II and III to this orderon the regular scales of pay indicated therein witheffect from 1.6.1994 the minimum being allowed from1.6.94 with increments due in future. No arrearswill be payable for the periods prior to 1.6.1994.2.The expenditure on the staff unassessed forgrant over and above the posts for which assessmentof grant is now approved if any, will have to beborne by the Managements of Schools from their ownfunds if they want to continue those posts. Themanagements are also free to disband such posts intheir discretion.3.The expenditure on the posts now sanctionedfor Elementary Schools will be debited to thefollowing heads of accounts:-"2202 General Education – 01.ElementaryEducation – 102 Assistance to non-GovernmentPrimary Schools – I-Non-plan – NO-Grants to non-Government Elementary Schools – 09.Grants-in-aid" (DPC 2202-01-102-No-0901)4.The expenditure on the posts sanctioned forHigh and Higher Secondary Schools will be debited tothe following heads of accounts:-"2202-General Education – 02, SecondaryEducation-110 Assistane to non-Government https://hcservices.ecourts.gov.in/hcservices/ Secondary Schools-I. Non-plan-AA.General –09.Grants-in-aid" (D.P.C.Code 2202 02 110 AA0909)5.The expenditure sanctioned is on a "NewService" and the approval of the legislature shall beobtained in due course. Pending approval bylegislature, the expenditure will be initially met byan advance from contingency Fund, orders regardingwhich will be issued separately from Finance (B.G.I)Department. The Director of School Education andDirector of Elementary Education should apply to theGovernment in the Finance (BGI) Department in theprescribed proforma for the sanction of advance fromthe contingency fund.6.This orders issued with the concurrence ofFinance Department vide it's U.O.No.578/JS(IF)/94,dated 1.8.94.(By Order of the Governor)Sd/-xxxxxxxxxxx SECRETARY TO GOVERNMENT"The proceedings of the second respondent dated 27.1.1995 reads asfollows:"PROCEEDINGS OF THE DIRECTOR OF SCHOOL EDUCATION,CHENNAI.Rc.No.11338/G3/95Dated:27-1-95Sub:Schools – Recognised Private Schools Elementary/Middle/High/Higher Secondary Schools Opened/Upgraded during 1988-89 and1989-90 – assessment of grantfrom 1.6.94 – Government Order-Communicated.Ref:G.O.Ms.No.50, Education, Scienceand Technology/(D1)Department,dated 20-1-95.---Copy of the G.O. read above is communicated tothe undermentioned Officers for urgent necessaryaction. https://hcservices.ecourts.gov.in/hcservices/ They are requested to release the Staff grantfor the posts in the schools noted below under theiradministrative control as indicated in annexure IIand III in the G.O. in the regular scales of payindicated therein with effect from 1.6.94 the minimumbeing allowed from 1.6.94 with increments due infuture. No arrears will be payable for the periodprior to 1.6.94.The other instructions issued in the G.O.readabove should be scrupulously followed.----------------------------------------------------------Name of theName of theNo.of Scale ofSchoolpostspostsPay----------------------------------------------------------St.Joseph's 1)HeadmasterOne2000-60-2300-High School,75-3200Rajakkaman- 2)BT AssistantOne1400-40-1600-galamthurai,50-2300-Kanyakumari60-2600District 3)Tamil PanditOne -do- 4)Office Assistant One750-12-879- 15-945----------------------------------------------------------Sd/-xxxxxxxxDIRECTOR OF SCHOOL EDUATION"11.From the report submitted by the 4th respondent to thethird respondent dated 4.8.2000 it is evident that from the year1994-95, the 5th respondent School was having strength of 304 instandards 6 to 10 and as per G.O.Ms.No.340 if the students strengthexceeds 300, one Physical Education Teacher post is to besanctioned. The translated version of the said report is extractedhereunder:“SCHOOL EDUCATION DEPARTMENTFromToThiru.S.Ramaian, M.A.M.Ed.,The Chief EducationalDistrict Educational Officer, Officer,Thakkalai - 629 175 NagercoilR.O.C.NO.4991 A1/2000 dated 4.8.2000Sub: Secondary Education – Minority Aided - St. Joseph Higher Secondary School, https://hcservices.ecourts.gov.in/hcservices/ Rajakkamangalam Thurai – requesting to sanction the post of Physical Education Teacher – reg. Ref: R.O.C.No.3634 A4/2000 of the Chief Educational Officer, Nagercoil, dated 4.4.2000.Requesting to sanction the post of Physical Education Teacherfor St.Joseph Higher Secondary School, Rajakkamangalam Thurai,Thuckalai, I submit herewith the following details:-The details regarding the teachers working in the approved postof the SchoolHead Master-1Asst. Headmaster-2Tamil Teacher-1Secondary Grade Teachers-10Tailoring Teacher -1 (part time)Office Assistant-1Admission and attendance of students from 6 to 9 for the past 5academic years, as on 1st August.YearAdmissionAttendance1995-963223221996-973333331997-983263261998-993263191999-2000307307Admission of the students in the academic year 2000-2001(standard wise) https://hcservices.ecourts.gov.in/hcservices/ StandardMale FemaleTotal12321442271744333215443525605262450282642206272327508163652934255910291948271The Correspondent of St.Joseph's Higher Secondary School,Rajakkamangalam Thurai, having understood the importance of physicaleducation to the students of the School, appointed a qualifiedphysical education teacher during the academic year 1988-89 itself.There is adequate strength of students in this school to sanction apost of Physical Education Teacher.Out of the two posts of Physical Education Teacher sanctionedto Dr.Samuel High School, Santhapuram, Thuckalai Education district,one post was surplus due to the poor attendance of students. Ihumbly submit that since one Thiru.A.John Aruldoss Alexander who hadbeen working in the surplus post, retired from service onsuperannuation from the afternoon of 31.5.1989, the said post is notutilized till this day and further humbly submit that the post waswithdrawn vide the proceedings of the Chief Educational officer,Nagercoil in R.O.C.No.16565/E3/90 dated 4.3.91.I further humbly submit that in the aforesaid circumstances, ifthe surplus post which withdrawn, had not been allotted to any otherschool, which requires that, this post may be allotted to St.JosephHigher Secondary School, Rajakkamangalam Thurai and utilized.Sd/-xxxxxxxxxfor District Educational Officer,Thuckalai.”In spite of 5th respondent School having satisfied the norms for the https://hcservices.ecourts.gov.in/hcservices/ sanction of post, admittedly no post of Physical Education Teacherwas granted to the 5th respondent school and consequently thepetitioner is unable to get his appointment approved and get salary,at least from 1.6.1994.12.Similar issue was considered by this Court (HonourableMr.Justice M.Srinivasan, Acting Chief Justice, as he then was) inW.P.No.21020 of 1994 etc., batch dated 18.4.1996 insofar as the non-sanction of posts in spite of eligibility to get sanction of postsas per G.O.Ms.No.340 dated 1.4.1992. This Court allowed the writpetitions and issued mandamus to sanction teaching and non-teachingposts to the said schools on satisfaction of conditions enumeratedin G.O.Ms.No.340 dated 1.4.1992. The said order passed by thisCourt in the batch of cases were implemented by the respondents 1 to4 and sanctioned the required number of posts to the writ petitionerinstitutions therein. In fact, one Physical Education Teacher postwas sanctioned to St.Stephens High Schools, South Palavillai,Velayutha Nagar, Kollencode post, Kanyakumari District, as perorder passed in W.P.No.2124 of 1995 dated 18.4.1996.13.As rightly contended by the learned counsel for thepetitioner, the 5th respondent management has not filed any writpetition for the sanction of Physical Education Teacher post andconsequently no post was sanctioned to the 5th respondent School from1.6.1994.14.Whether the Government can discriminate with regard to thesanction of posts while sanctioning posts to other institutions,came up for consideration before the Division Bench of this Court inthe decision reported in (2008) 4 MLJ 289 (G.Sahadevan Nair v.Government of Tamil Nadu). In the said decision, the writ appealchallenging the order of the learned single Judge in dismissing thewrit petition and the batch of writ petitions seeking sanction ofadditional posts were allowed and in paragraph 29 it is held asfollows:"29. For the aforesaid reasons, we allowthe various writ petitions by giving thefollowing directions:(i) The State of Tamil Nadu and the otherauthorities concerned shall consider theapplication of each of the Institution forgrant-in-aid within a period of 16 weeks withoutbeing influenced by the fact that suchinstitutions had been established withoutobtaining any prior permission and also by thefact that such institutions had given letter inwriting indicating that after obtainingrecognition they will not claim any grant-in-aid. However, while considering such https://hcservices.ecourts.gov.in/hcservices/ application, the relevant facts such as theexistence of necessary infrastructure, teacher-student ratio and the eligibility of theconcerned teacher to hold the post should beconsidered.(ii) If it is found that any particularinstitution is entitled to receive any aid,decision should be taken with regard toeligibility within a period of four months andshould be communicated to the concernedinstitution.(iii) If any institution is found eligibleto receive such aid, necessary payment shall bemade within a further period of four months fromthe date of such sanction.(iv) The continued right of any institutionto receive any aid is to be considered keepingin view the relevant G.O., applicable from timeto time.(v) Similarly, in respect of minorityinstitutions, which were receiving aid inrespect of some of the posts and were seekingfor approval and payment of aid for anyadditional post, such question is required to beconsidered within a period of four months bykeeping in view the teacher-pupil ratioapplicable during any particular period.(vi) If, on the other hand, any school orany post is found ineligible for sanction ofgrant, such decision should be communicated tothe concerned institution by giving briefreasons within a period of three weeks from thedate of order of refusal." (Emphasis Supplied)15.The issue as to whether a teacher appointed in an AidedSchool, which has got eligibility to get sanction of post, who isworking in the School in anticipation of sanction of posts, can filea writ petition and pray for sanction of posts and consequentialpayment of salary, and whether the department has got defence todeny the post on the ground of want of finance was considered by mein the decision reported in (2006) 3 MLJ 242 (C.Manonmony v. Stateof Tamil Nadu). Paragraphs 13 to 16 reads as follows:13.The submission of the learned counselfor the petitioner that want of finance cannotbe a ground to deny sanction of the post to anAided School is also well founded.(a)A Division Bench of this Court in the https://hcservices.ecourts.gov.in/hcservices/ decision reported in 1988 WLR 130 (Church ofSouth India v. The Government of Tamil Nadu)held that want of finance is not a ground todeny teaching post to an aided school.(b)Similar issue arose before theHonourable Supreme Court in the decisionreported in AIR 1996 SC 1 (State of Maharashtrav. Manubhai Pragaji Vashi). In the saidjudgment, non-extension of grant in aid to aprivate law college was considered by theHonourable Supreme Court. The HonourableSupreme Court held that a duty is cast on theState to extend the grant in aid and the samecannot be whittled down either by pleadingpaucity of funds or otherwise and ultimatelydirected the Government to extend the grant inaid scheme to all Government Recognised PrivateLaw Colleges.(c)In AIR 2000 SC 634 (ChanigarhAdministration v. Rajni Vali) in paragraph 6the Honourable Supreme Court held as follows:"... imparting primary and secondaryeducation to the students is the bounden duty ofthe state administration. It is aconstitutional mandate that the State shallensure proper education to the students on whomthe future of the Society depends. In line withthis principle, the State has enacted Statuteand framed Rules and Regulations tocontrol/regulate establishment and running ofprivate schools at different levels. The StateGovernment provides grant-in-aid to privateschools with a view to ensure smooth running ofthe institution and to ensure that the standardof teaching does not suffer on account ofpaucity of funds. It needs no emphasis thatappointment of qualified and efficient teachersis a sine qua non for maintaining high standardof teaching in any educational institution.Keeping in mind these and other relevant factorsthis Court in number of cases has intervenedfor setting right any discriminatory treatmentmeted out to teaching and non-teaching staff ofa particular institution or a class ofinstitutions."In paragraph 10, the Supreme Court consideredthe contention of want of fund in the followingmanner,"Coming to the contention of the appellants https://hcservices.ecourts.gov.in/hcservices/ that the Chandigarh Administration will find itdifficult to bear the additional financialburden if the claim of the respondents 1 to 12is accepted, we need only say that such acontention raised in different cases of similarnature has been rejected by this Court. TheState Administration cannot shirk itsresponsibility of ensuring proper education inschools and colleges on the plea of lack ofresources. It is for the authorities runningthe Administration to find out the ways andmeans of securing funds for the purpose. We donot deem it necessary to consider this questionin further detail. The contention raised by theappellants in this regard is rejected. ..."(d)A constitution Bench of the HonourableSupreme Court in the decision reported in AIR1992 SC 1630 (St.Stephen's College v. Universityof Delhi) considered the issue of aid tominority institutions. In paragraph 89 theSupreme Court held thus,"The educational institutions are notbusiness houses. They do not generate wealth.They cannot survive without public funds orprivate aid. It is said that there is alsorestraint on collection of students fees. Withthe restraint on collection of fees, theminorities cannot be saddled with the burden ofmaintaining educational institutions withoutgrant-in-aid. They do not have economic advantage over others.It is not possible to have educationalinstitutions without State aid. This was alsothe view expressed by Das, C.J., in Re: KeralaEducation Bill case. The minorities cannot,therefore, be asked to maintain educationalinstitutions on their own."(e)A Division Bench of this Court in ajudgment reported in 1997 WLR 619 (State ofTamil Nadu and 4 others v. Melapalayam MuslimMagalir Kalvi Sangam)(DB) considered the plea ofthe Government as to the non-availability offunds and held that the Government havinggranted temporary recognition of approval ofstandards 6 to 8 with aid, the same cannot bedenied on the plea of want of funds. Inparagraph 6 the Court held thus,"... The citizens of the country have afundamental right to education, which right https://hcservices.ecourts.gov.in/hcservices/ flows from Article 21. This right is, however,not an absolute right. In other words, everychild/citizen of this country has a right tofree education until he completes the age offourteen years. Thereafter, his right toeducation is subject to the limits of economiccapacity and development of the State. ..."In fact, the Division Bench followed theJudgment of the Supreme Court reported in AIR1958 SC 956 (In re The Kerala Education Bill,1957) wherein it is held that the minoritiescannot be asked to maintain the educationalinstitutions of their own funds.(f)The said right to education underArticle 21 was considered by the Supreme courtin Unnikrishnan J.P. v. State of Andhra Pradesh,AIR 1993 SC 2178. The said proposition of thelaw was also approved by the ConstitutionalBench decision in TMA Pai Foundation and othersV. State of Karnataka, (2002) 8 SCC 481.(g)By Judgment dated 23.8.1990 inW.A.No.24 of 1990, a Division Bench of thisCourt held that once recognition is granted withaid to a private School, the sanction of postsshall be made automatically if the norms for thesanction of post is satisfied, otherwise thegrant of recognition will be renderedmeaningless. The Division Bench upheld theorder of the learned single Judge made inW.P.No.4570 of 1987 dated 27.9.1989(T.Sekarapillai and 5 others v. The State ofTamil Nadu and 2 others) with slightmodification. In the decision reported in 1999WLR 555 (The C.S.I. Kanyakumari Diocese v.Government of Tamil Nadu and others) anotherDivision Bench of this Court while dealing withthe request of a minority management to sanctionadditional posts, directed to sanction postsbased on student strength as per G.O.Ms.No.250dated 29.2.1964 from 18.2.1991 within threemonths. S.L.P.(Civil) No.19141 and 19142 of1998 filed against the order of the DivisionBench was dismissed by the Honourable SupremeCourt by order dated 16.12.1999. Therespondents 1 to 4 herein implemented the saidorder by sanctioning additional postsretrospectively to C.S.I. Primary SchoolVenkanji, Kanyakumari District.(h)Insofar as the aided schools are https://hcservices.ecourts.gov.in/hcservices/ concerned, the Hon'ble Mr.Justice K.Venkataswamy(as he then was) in W.P.No.15966 of 1990 dated21.12.1993 allowed the writ petition filed bythe management and directed sanction of oneBotany P.G. Assistant post. Earlier, a DivisionBench of this Court in W.A.No.28 of 1990 byJudgment dated 10.1.1990 (Dr.A.S.Anand,J. (as hethen was) & Nainar Sundaram,J.) took a similarview following the decision reported in 1988 WLR130 (cited supra). The same view was taken bythis Court in the following unreported decisionsinsofar as the sanction of posts to aidedcolleges 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 hethen was)). The said order was confirmed bythe Division Bench in W.A.No.682 of 1996 dated26.7.1996 (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 minoritymanagements which were forced to give anundertaking while getting recognition that theschools will not claim aid forever was alsoconsidered by this Court in series of decisions.A learned single Judge of this court inW.P.No.6592 of 1993 (Arokia Annai Middle School,Palayam, Kanyakumari District and another v. TheState of Tamil Nadu and two others) dated11.10.1993 (K.S.Bakthavatchalam, J.) held thateven if the management has given an undertakingthat it will not claim aid from the Governmentthat undertaking has no value and a directionwas issued to sanction post to the said school.The respondents filed W.A.No.1040 of 1997against the said order of the learned singleJudge and the same was dismissed by a DivisionBench of this Court on 11.8.1997. The SLP filedagainst the said decision of the Division Benchwas also dismissed on 17.8.1998 and finally theGovernment sanctioned posts to the said School.15.The said judgment of the DivisionBench was followed by another single Judge inthe decision in W.P.No.5831 of 1997 dated https://hcservices.ecourts.gov.in/hcservices/

11.6.1998 (K.Sampath, J.). Writ Appeal filedagainst the said order in W.A.No.228 of 1999 wasalso dismissed by this Court on 29.1.2005.16.Here the 5th respondent school isgranted recognition with aid. Thus the matterin issue is already settled with regard to theplea of want of finance by the Government,pursuant to which, post cannot be denied to therecognised schools and more particularly to theaided schools. As rightly contended by thelearned counsel for the petitioner a solemnundertaking was given before this Court by thefirst respondent to the effect that as and whenthe School is in need of additional post it willbe sanctioned and the said undertaking isrecorded in the judgment reported in 1999 (1)MLJ 635 (cited supra). In view of the settledposition of the law with regard to the sanctionof post to the aided schools as and when theschool is eligible to get additional post, therespondents 1 to 4 are not justified in notsanctioning one additional B.T. Assistant postto the 5th respondent school, at least from1.6.1998."In fact the judgment in (2006) 3 MLJ 242 (cited supra) was approvedby the Division Bench in the decision reported in (2008) 4 MLJ 289(cited supra) in paragraph 20. The learned counsel for the 5threspondent submitted that the department implemented the decision ofmine reported in (2006) 3 MLJ 242 (cited supra) subject to theresult of review to be filed against the order passed by theDivision Bench on 28.8.2008 in M.P.No.1 of 2008 inW.A.SR.No.92492/2008, vide proceedings of the Director of SchoolEducation in Na.Ka.No.87009/D(E5)/08, dated 29.8.2008.16.The 5th respondent school being a fully Aided MinorityHigh School and the students admitted in the school being mostlywithin the age group of 6 to 14, the respondents are bound tosanction the required number of posts as it is the fundamental rightof the said students to get free education in terms of Article 21Aof the Constitution of India. The said fundamental right will havefull meaning only if the teaching posts are sanctioned to the saidSchool by the Government.17.In the decision reported in (2008) 3 SCC 315 (SuperstarEducation Society v. State of Maharashtra) in paragraph 11 theSupreme Court considered the role of private schools in impartingeducation to fulfil the obligation of the State to provide free andcompulsory education as guaranteed under Article 21A of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India. Paragraph 11 reads thus,"11. It is the duty of the State Governmentto provide access to education. Unless newschools in the private sector are permitted itwill not be possible for the State to dischargeits constitutional obligation. Permission hasbeen granted to 1495 new schools under the Orderdated 16-5-2006 on permanent no-grant basiswithout any financial commitment or liability onthe part of the State Government, even infuture, and at the same time ensuring that theschools follow the parameters and conditionsprescribed by the Education Code, reservingliberty to the authorities to take appropriateaction, should there be any violation. The saidOrder does not contravene any provision of law.It was not even the case of the writ petitionerthat the schools permitted did not fulfil theconditions and requirements relating to suchschools."In 2009 (3) Supreme 142 (Avinash Mehrotra v. Union of India &Others) the Supreme Court considered the very same issue and inparagraphs 25 to 27 it is held thus,"25.Education today remains liberation – atool for the betterment of our civilinstitutions, the protection of our civilliberties, and the path to an informed andquestioning citizenry.26.Then as now, we recognize education's"transcendental importance" in the lives ofindividuals and in the very survival of ourConstitution and Republic. In the years sincethe inclusion of Article 21A, we have clarifiedthat the right to education attaches to theindividual as an inalienable human right. Wehave traced the broad scope of this right inR.D.Upadhyay v. State of A.P. & Others, AIR 2006SC 1946, holding that the State must provideeducation to all children in all places, even inprisons, to the children of prisoners. We havealso affirmed the inviolability of the right toeducation. In Election Commission of India v.St.Mary's School & Others, (2008) 2 SCC 390, werefused to allow the State to take teachers fromthe class room to work in polling places. Whilethe democratic State has a mandate to conduct https://hcservices.ecourts.gov.in/hcservices/ elections, the mundane demands of instructionsuperseded the State's need to staff pollingplaces. Indeed, the democratic State may neverreach its greatest potential without a citizenrysufficiently educated to understand civil rightsand social duties, Bandhua Mukti Morcha v. Unionof India & Others, (1997) 10 SCC 549. Theseconclusions all follow from our opinion in UnniKrishnan. Education remains essential to thelife of the individual, as much as health anddignity, and the State must provide it,comprehensively and completely, in order tosatisfy its highest duty to citizens.27.Unlike other fundamental rights, theright to education places a burden not only onthe State, but also on the parent or guardian ofevery child, and on the child herself. Article21A, which reads as follows, places oneobligation primarily on the State:"The State shall provide free andcompulsory education to all children of theage of six to fourteen years in such manneras the State may, by law, determine.""18.The respondents 1 to 4 having admittedly sanctionedPhysical Education Teacher posts to similarly placed Schools from1.6.1994, the non-sanctioning of the post to the 5th respondentSchool is discriminatory and violative of Article 14 and 30(2) ofthe Constitution of India. Article 30(2) of the Constitution ofIndia reads as follows:"Article 30(2) The State shall not, ingranting aid to educational institutions,discriminate against any educational institutionon the ground that it is under the management ofa minority, whether based on religion orlanguage."19.I am aware of the fact that normally Courts are notentitled to issue mandamus to sanction/create post and it is theprerogative of the Government to sanction the post. In this case,having regard to the facts of this case as well as therecommendations made by the respondents 4, 3 and 2, the eligibilityto get sanction of the post is not in dispute. Physical educationto the students is in the curriculam as per the syllabus of theSchool Education in standards 6 to 10. Thus, the respondents 1 to 4are bound to sanction the post of Physical Education Teacher to the5th respondent school. The 5th respondent School is alsodiscriminated and the earlier order of this Court made in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.21020 of 1994 etc., dated 18.4.1996, ordering to sanctionposts is also implemented. Consequently, the petitioner is entitledto succeed in this writ petition and a writ of mandamus is issued tothe respondents 1 to 4 to sanction one Physical Education Teacherpost to the 5th respondent School with effect from 1.6.1994 andapprove the appointment of the petitioner as Physical EducationTeacher with salary and other benefits after satisfying with thequalification possessed by the petitioner for the said post. Thefirst respondent is directed to pass the post sanction order asordered above on or before 30.10.2009 and the 4th respondent isdirected to grant approval of the appointment of the petitioner asPhysical Education Teacher, if the petitioner is found qualified andpay arrears of salary and other benefits from 1.6.1994, within aperiod of two weeks from the date of receipt of order from theGovernment.The writ petition is partly allowed with the above directions.No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary to Government,Higher Education Department,Fort St.George, Chennai – 600 009.2.The Director of Secondary Education,Chennai – 6.3.The Chief Educational Officer,Kanyakumar District at Nagercoil,Kanyakumari District. https://hcservices.ecourts.gov.in/hcservices/

4.The District Educational Officer,Thackalay, Kanyakumari District.+1cc to M/s. Isaac Mohanlal, Advocate Sr 42411AKR(CO)km/9.9.W.P.No.33431 of 2002