P.S. James Arulraj v. The Government of Tamil Nadu

ending with 15.12.2003 in Na.Ka.No.8861/Aa3/2003, on the file ofthe third respondent and quash the same directing the respondents 1to 4 to accord approval to the appointment of the petitionersw.e.f. 4.6.1997 and 17.6.1997 respectively as B.Ed. Teachers in thefifth respondent School with all monetary and other attendantbenefits.For Petitioners:Mr.Fr.A.Xavier ArulrajFor Respondents 1to4:Mrs.Dakshayani Reddy,Government AdvocateFor 5th Respondent:Mr.V.R.AppaswameeFor 6th Respondent:No appearanceCOMMON ORDERBy consent of both parties, the writ petitions are taken upfor final disposal.2.Prayer in both the writ petitions is to quash theproceedings of the third respondent dated 15.12.2003 and direct therespondents 1 to 4 to accord approval to the appointment of thepetitioners w.e.f. 4.6.1997 and 17.6.1997 respectively as B.Ed.Teachers in the fifth respondent School with all monetary and otherattendant benefits. 3.The learned counsel for the petitioners at the time ofarguments submitted that the impugned order of deployment has notbeen implemented and the persons ordered to be deployed in the 5threspondent School, who are 6th respondent in these writ petitions,were given posting in other schools during pendency of the writpetitions and the petitioners will be satisfied if approval of theappointment of the petitioners made by the 5th respondentmanagement is approved with effect from 1.6.2000. The saidstatement of the learned counsel for the petitioners is recorded.4.The learned counsel appearing for the 5th respondentSchool submitted that there is no need to go into the merits of thedeployment order as the two teachers ordered to be deployed in the5th respondent school were given postings in other schools and theonly issue to be decided in these writ petitions is as to whetherthe 5th respondent management is entitled to get sanction ofadditional posts and the consequential approval of the petitionersas teachers appointed in anticipation of sanction of posts from1.6.2000. The said submission of the learned counsel is alsorecorded. https://hcservices.ecourts.gov.in/hcservices/

5.The petitioner in W.P.No.38054 of 2003 was appointed asgraduate Teacher in the 5th respondent School on 4.6.1997 and he ishandling history subject for standard 8 and English subject forstandards 9 and 10 and the petitioner in W.P.No.38055 of 2003 wasappointed as graduate teacher in the 5th respondent School on17.6.1997 and she is also handling 29 periods per week. Accordingto the petitioners, they are fully qualified for being appointed inthe 5th respondent School as B.T. Assistants. 6.The 5th respondent school is a minority school, grantedrecognition and aid by the Government of Tamil Nadu. Thecontention of the petitioners are that the eligibility to getsanction of posts in aided schools is governed under G.O.Ms.No.525,School Education Department, dated 29.11.1997 and for the 5threspondent School, the following teaching and non-teaching postswere sanctioned prior to G.O.Ms.No.525, dated 29.12.1997.Headmaster...1B.T. Assistants...2Tamil Pandit...1Secondary Grade Teachers...3Physical Education Teacher...1Junior Assistant...1Office Assistant...1 --Total... 10 --The students' strength of the school according to the petitionerand 5th respondent management from 1.6.2000 was 662 and the totalsections available in the 5th respondent school are 13. Accordingto the petitioners and the 5th respondent management, by proceedingdated 5.1.2001, the department sanctioned three additionalsecondary Grade Teacher posts, however no additional B.T. Assistantpost was sanctioned, even though 5th respondent school is entitledto have five B.T. Assistant posts as per the norms issued by theGovernment. Petitioners were appointed to handle classes in highschool sections. The posts for the subjects English, Mathematicsand Science in the middle sections were also upgraded as middlegraduate teacher posts by the Government through G.O.Ms.NO.79Education, dated 14.6.2002 followed with G.O.Ms.NO.100 Educationdated 27.6.2003. According to the petitioners, even though, the5th respondent School is eligible to get five B.T Assistant Postsin toto as stated supra, it was sanctioned with only 2 B.T.Assistant posts. Two B.T. Assistants, namely 6th respondent inthese writ petitions were deployed from other schools to the 5threspondent school even though the petitioners are working in theschool from June, 1997, in anticipation of sanction of posts andapproval. The said orders of deployment of the respective 6threspondent in these writ petitions having affected the petitioners'right to continue as teachers and get approval after the sanction https://hcservices.ecourts.gov.in/hcservices/ of posts, petitioners have individually challenged the orders ofdeployment and obtained interim orders in their favour.7.The respective 6th respondent in these writ petitionswere subsequently posted in other needy schools and therefore thedeployment orders have become infructuous and therefore thepetitioners are continuously working in their respective posts inthe 5th respondent school all these years and therefore thecontention of the petitioners are that the respondents departmentmay be directed to sanction two B.T. Assistant posts, at least from1.6.2000 with consequential direction, to approve the appointmentof the petitioners from 1.6.2000.8.The learned counsel for the petitioners submits that eventhough G.O.Ms.No.525 Education, dated 29.11.1997 came into forcefrom 1.6.1998, petitioners are restricting the prayer to sanctionof post and consequential approval of their appointments from1.6.2000 in view of the undisputed availability of strength from1.6.2000, which are verified and countersigned by the thirdrespondent.9.The strength of the school as on 1.6.2000 was verifiedand countersigned by the third respondent according to which theschool is having total strength of 691 with 17 divisions/sectionsand taking note of the same, the third respondent fixed the staffstrength as 4 B.T. Assistants and ordered deployment of twoteachers, who were found excess in other schools, to the 5threspondent school. In the staff fixation order issued for the year2001-2002 on 8.12.2001 by the 4th respondent, it is found thatthough the school is eligible to have four B.T. Assistants, it wassanctioned with only two posts and additional requirement was notedas two B.T. Assistants. The said fixation order is found at pageNo.15 of the typed set of papers. For the year 2002-2003 also the4th respondent fixed the staff strength on 1.10.2003 wherein it isstated that for standards 9 and 10, the school is entitled to havefour B.T. Assistants and sanctioned posts are only two and two moreB.T. Assistant posts are required to be sanctioned.10.Relying on the said staff fixation order passed by the4th respondent, after assessment of the strength of the 5threspondent School, the learned counsel for the petitionerssubmitted that the eligibility to have two additional posts of B.T.Assistants, at least from 1.6.2000 is not in dispute and therespondents are not justified in deploying 6th respondents to the5th respondent School. The learned counsel also submitted thatG.O.Ms.NO.525 dated 29.11.1997 was issued with effect from 1.6.1998for the sole object of equally distributing posts to aided schoolsand there cannot be any discrimination in granting posts. Thelearned counsel also submitted that when the said Government Order https://hcservices.ecourts.gov.in/hcservices/ was challenged before this Court, the Government filed a counteraffidavit stating that wherever the schools are in need ofadditional posts, the same will be sanctioned and wherever theposts are found surplus the same will be deployed or if deploymentis not possible, the teachers will be allowed to work till theirretirement in the said school and thus the respondents are nothonouring the commitment made before this Court by sanctioningadditional posts to the 5th respondent school in spite ofeligibility to sanction two B.T. Assistant posts from 1.6.2000.11.The learned Government Advocate appearing for therespondents 1 to 4 on the other hand submitted that even thoughG.O.Ms.NO.525, dated 29.11.1997 was issued as norms for fixing thestaff strength for the aided schools from 1.6.1998, petitionerscannot claim sanction of posts as a matter of right and as and whenthe Government sanctions additional posts to the needy schoolsafter assessing the financial viability of the Government, claim ofthe 5th respondent school will also be considered and only aftersanction of posts, petitioners can claim approval and salary fromthe date of sanction of posts.12.I have considered the rival submissions made by thelearned counsel for the petitioners as well as the respondents.13.The point in issue is whether the petitioners have gotany right to seek sanction of posts from 1.6.2000 and whether theGovernment is bound to sanction posts to the 5th respondent schoolfrom 1.6.2000 and the petitioners are entitled to get consequentialapproval on their appointment as B.T. Assistants in the 5threspondent School.14.It is not in dispute that 5th respondent school is afully aided minority school having standards upto 10th standard.It is also not in dispute that the school is a non-fee levyingschool, imparting free education. It is also not in dispute thatstudents upto 14 years of age are to be given free and compulsoryeducation as per fundamental right guaranteed to them under Article21 of the Constitution of India.15.Similar issue as to whether a person appointed in anaided minority school is entitled to claim sanction of post withconsequential approval, was considered by me in the decisionreported in (2006) 3 MLJ 242 (C.Manonmony v. State of Tamil Nadu)and in paragraphs 11 to 17, I have held thus,"11.The validity of G.O.Ms.No.525 dated29.12.1997 was challenged before this Court.The Government justified the issuance ofGovernment Order and stated that only for equaldistribution of posts to all aided schools the https://hcservices.ecourts.gov.in/hcservices/ said Government Order was issued and anassurance was also given in the counteraffidavit that whenever a school is in need ofadditional post as per the students strength,necessary steps will be taken to sanctionadditional post. The said portion of thecounter affidavit was extracted in the judgmentreported in 1999 (1) MLJ 635 (North ArcotAmbedkar and Sambuvarayar District recognisedPrivate Aided Primary and Middle SchoolsManagers and Teacher Managers Association v.The State of Tamil Nadu), which reads thus,"... In fact, there is an assurancein the counter itself (in para 23) thatwhen the school is found eligible foradditional post as per the revised norms,necessary steps will be taken to sanctionadditional posts."From the above stand it is made clear by theGovernment before this Court that wheneverSchool is in need of additional sanction ofpost, it will be sanctioned, if the normsissued in G.O.Ms.No.525 dated 29.12.1997 issatisfied.12.G.O.Ms.No.525 dated 29.12.1997 wasgiven effect from 1.6.1998. Hence the 5threspondent School is eligible to be sanctionedone additional post of B.T. Assistant at leastfrom 1.6.1998 and on such sanction of post bythe first respondent to the 5th respondentSchool, petitioner is entitled to get B.TAssistant salary, at least from 1.6.1998. Inthe impugned order, nowhere it is stated thatthe 5th respondent School is not entitled to getsanction of additional B.T. Assistant post.The impugned order only states that as and whenneed arises, request of the 5th respondentSchool will be considered.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 thedecision 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 decision https://hcservices.ecourts.gov.in/hcservices/ reported 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 boundenduty of the state administration. It is aconstitutional mandate that the Stateshall ensure proper education to thestudents on whom the future of the Societydepends. In line with this principle, theState has enacted Statute and framed Rulesand Regulations to control/regulateestablishment and running of privateschools at different levels. The StateGovernment provides grant-in-aid toprivate schools with a view to ensuresmooth running of the institution and toensure that the standard of teaching doesnot suffer on account of paucity of funds.It needs no emphasis that appointment ofqualified and efficient teachers is a sinequa non for maintaining high standard ofteaching in any educational institution.Keeping in mind these and other relevantfactors this Court in number of cases hasintervened for setting right anydiscriminatory treatment meted out toteaching and non-teaching staff of aparticular 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 theappellants that the ChandigarhAdministration will find it difficult tobear the additional financial burden if https://hcservices.ecourts.gov.in/hcservices/ the claim of the respondents 1 to 12 isaccepted, we need only say that such acontention raised in different cases ofsimilar nature has been rejected by thisCourt. The State Administration cannotshirk its responsibility of ensuringproper education in schools and collegeson the plea of lack of resources. It isfor the authorities running theAdministration to find out the ways andmeans of securing funds for the purpose.We do not deem it necessary to considerthis question in further detail. Thecontention raised by the appellants inthis regard is rejected. ..."(d)A constitution Bench of theHonourable Supreme Court in the decisionreported in AIR 1992 SC 1630 (St.Stephen'sCollege v. University of Delhi) considered theissue of aid to minority institutions. Inparagraph 89 the Supreme Court held thus,"The educational institutions are notbusiness houses. They do not generatewealth. They cannot survive without publicfunds or private aid. It is said thatthere is also restraint on collection ofstudents fees. With the restraint oncollection of fees, the minorities cannotbe saddled with the burden of maintainingeducational institutions without grant-in-aid. They do not have economic advantage overothers. It is not possible to haveeducational institutions without Stateaid. This was also the view expressed byDas, C.J., in Re: Kerala Education Billcase. 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 pleaof the 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 be https://hcservices.ecourts.gov.in/hcservices/ denied on the plea of want of funds. Inparagraph 6 the Court held thus,"... The citizens of the countryhave a fundamental right to education,which right flows from Article 21. Thisright is, however, not an absolute right.In other words, every child/citizen ofthis country has a right to freeeducation until he completes the age offourteen years. Thereafter, his right toeducation is subject to the limits ofeconomic capacity and development of theState. ..."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 AndhraPradesh, AIR 1993 SC 2178. The saidproposition of the law was also approved by theConstitutional Bench decision in TMA PaiFoundation and others V. 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 grantedwith aid to a private School, the sanction ofposts shall be made automatically if the normsfor the sanction of post is satisfied,otherwise the grant of recognition will berendered meaningless. The Division Benchupheld the order of the learned single Judgemade in W.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 tosanction additional posts, directed to sanctionposts based on student strength as perG.O.Ms.No.250 dated 29.2.1964 from 18.2.1991within three months. S.L.P.(Civil) No.19141and 19142 of 1998 filed against the order of https://hcservices.ecourts.gov.in/hcservices/ the Division Bench was dismissed by theHonourable Supreme Court by order dated16.12.1999. The respondents 1 to 4 hereinimplemented the said order by sanctioningadditional posts retrospectively to C.S.I.Primary School Venkanji, Kanyakumari District.(h)Insofar as the aided schools areconcerned, the Hon'ble Mr.JusticeK.Venkataswamy (as he then was) in W.P.No.15966of 1990 dated 21.12.1993 allowed the writpetition filed by the management and directedsanction of one Botany P.G. Assistant post.Earlier, a Division Bench of this Court inW.A.No.28 of 1990 by Judgment dated 10.1.1990(Dr.A.S.Anand,J. (as he then was) & NainarSundaram,J.) took a similar view following thedecision reported in 1988 WLR 130 (citedsupra). The same view was taken by this Courtin the following unreported decisions insofaras the sanction of posts to aided colleges areconcerned.(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 ofdecisions. A learned single Judge of thiscourt in W.P.No.6592 of 1993 (Arokia AnnaiMiddle School, Palayam, Kanyakumari Districtand another v. The State of Tamil Nadu and twoothers) dated 11.10.1993 (K.S.Bakthavatchalam,J.) held that even if the management has givenan undertaking that it will not claim aid fromthe Government that undertaking has no valueand a direction was issued to sanction post tothe said school. The respondents filed https://hcservices.ecourts.gov.in/hcservices/ W.A.No.1040 of 1997 against the said order ofthe learned single Judge and the same wasdismissed by a Division Bench of this Court on11.8.1997. The SLP filed against the saiddecision of the Division Bench was alsodismissed 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 dated11.6.1998 (K.Sampath, J.). Writ Appeal filedagainst the said order in W.A.No.228 of 1999was also 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 itwill be sanctioned and the said undertaking isrecorded in the judgment reported in 1999 (1)MLJ 635 (cited supra). In view of thesettled position of the law with regard to thesanction of post to the aided schools as andwhen the school is eligible to get additionalpost, the respondents 1 to 4 are not justifiedin not sanctioning one additional B.T.Assistant post to the 5th respondent school, atleast from 1.6.1998.17.G.O.Ms.No.525 dated 29.12.1997 havingcame into force from 1.6.1998, the firstrespondent is directed to sanction oneadditional B.T. Assistant post to the 5threspondent school in favour of the petitionerfrom 1.6.1998 and the 4th respondent is directedto sanction salary of B.T. Assistant to thepetitioner 1.6.1998 to 31.5.2002. Since thepetitioner has not worked from 1.6.2002, she isnot entitled to get salary from 1.6.2002 to31.5.2006. The 5th respondent is directed torestore the services of the petitioner as B.T. https://hcservices.ecourts.gov.in/hcservices/ Assistant from the beginning of the academicyear 2006-2007. It is made clear that thepetitioner shall not be entitled to claim anysalary from the management funds prior to1.6.1998 as she was appointed in anunsanctioned post."16.The very same Government order was considered by a FullBench of this Court in the decision reported in 2006 (5) CTC 385(Director of Elementary Education v. S.Vijila). In the said case,the contention raised by the Government that due to want offinance, post could not be given to each standards of the aidedschools was considered and the said contention was rejected.17.Thus, it is well settled as of now that want of financecannot be a ground to deny posts to aided schools.18.In the light of the solemn assurance given by theGovernment before this Court while challenging the validity ofG.O.Ms.No.525 dated 29.11.1997, and in the light of the decision ofmine following several judgments of the Supreme Court and of thisCourt, as well as the Full Bench decision above referred, I am ofthe view that the 5th respondent School is entitled to get sanctionof two B.T.Assistant posts from 1.6.2000 and the petitioners areentitled to get their appointment as B.T. Assistant approved witheffect from 1.6.2000 with salary and other benefits.19.The first respondent is directed to sanction two B.T.Assistant posts in favour of the 5th respondent School with effectfrom 1.6.2000 within a period of six weeks from the date of receiptof copy of this order and on sanction of the said posts, 4threspondent is directed to approve the appointment of thepetitioners as B.T. Assistants from 1.6.2000 with salary and otherbenefits, within four weeks from the date of sanction of posts.The writ petitions are ordered with the above directions. Nocosts. Connected miscellaneous petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vr https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary,School Education Department,Fort St. George, Chennai - 600 009.2.The Director of School Education,DPI Campus, College Road, Chennai - 600 006.3.The Chief Educational Officer,Saidapet,Chennai - 15.4.The District Educational Officer (North)Egmore, Chennai - 8.1 cc to Government Pleader, Sr. 168202 ccs to Fr.A. Xavier Arulraj, SR. 16898 W.P.No.38054 & 38055/2003 CMP (CO)kk 27/3