Mr.R.Manoharan, learned Government Advocate has taken notice for the respondents 1 to 3. Mrs.P.Krishnaveni, learned counsel has taken notice for the fourth respondent.
2.The petitioner has come forward with this Petition seeking for the relief of Writ of Certiorarified Mandamus to quash the impugned order passed by the third respondent in O.Mu.No.955/A2/06 dated 29.08.2006 and consequential order in O.Mu.No.1419/a2/06 dated 16.11.2006 and direct the respondents 2 and 3 to approve the appointment of the petitioner as B.T. Assistant with effect from 06.07.2006 with all consequential benefits, as per G.O.Ms.No.99 School Education Finance-2, dated 27.06.2006.
3.The case of the petitioner is that she passed B.A., and B.Ed. degree in the year 1999 and 2003 respectively and eligible for the post of BT Graduate Teacher. The fourth respondent being a linguistic minority aided middle School appointed the petitioner as Junior Grade BT Assistant on 06.07.2006 and the petitioner joined on the same day. Thereafter the fourth respondent School submitted a proposal for approval of the appointment of the petitioner to the second respondent on 27.07.2006 through the third respondent. By a letter dated 29.08.2006, the third respondent in his proceedings in O.Mu.No.955/A2/06 dated 29.08.2006 returned the proposal on the ground that the subject roaster has not been followed as per G.O.Ms.No.100 dated 27.06.2003 as only the persons obtained graduation in Maths, Science and English are eligible for appointed in the middle school and the petitioner is having only a degree in History. Being aggrieved against the said order, the petitioner has come forward with this petition seeking the above said relief.
4.Mr.S.N.Ravichandran, learned counsel for the petitioner contended that the petitioner was appointed as a Junior Grade BT Assistant in the fourth respondent School which is a linguistic minority aided middle school. It is contended that G.O.Ms.No.100 is not applicable to the aided school as held by this Court in a number of decisions. The learned counsel for the petitioner would place reliance of one such order passed by this Court in W.P.No.24694 of 2008 dated 03.11.2008 and in the said decision, earlier decisions were followed and ultimately held that the subject roaster is not applicable to the aided schools. Therefore, it is contended that the impugned order passed by the third respondent is liable to be quashed.
5.Per contra, the learned Special Government Pleader contended that there is no illegality in the impugned order passed by the third respondent. It is submitted that the third respondent by following the G.O.Ms.No.100, Education Department, dated 27.06.2003 issued the impugned order holding that only those persons, who are holding degree in Maths, Science and English alone are eligible for such appointment.
6.I have carefully considered the rival contentions put forward by either side and perused the impugned order.
7.The fact remains that the petitioner is possessing qualification of BA(History) and B.Ed., and she has been appointed by the fourth respondent School as per the appointment order dated 06.07.2006 and joined on the same date. A perusal of the impugned order reveals that the third respondent proceeded to pass the impugned order rejecting the proposal for approval of the appointment of the petitioner only on the ground that persons, who are holding degree in Maths, Science and English alone are eligible for the post of Junior Grade BT Assistant and as far as the petitioner is concerned, she is holding B.A. Degree in History. It is pertinent to note that in the impugned order, a reference was made to the Government order in G.O.Ms.No.100, Education Department, dated 27.06.2003. It is seen that this Court in a number of similar matters consistently taken a view that the said G.O. is not applicable to an aided School. One such order relied by the petitioner is dated 03.11.2008 passed in W.P.No.24694 of 2008 in which the learned Single Judge of this Court by following the earlier Division Bench decision and others decisions held as hereunder:
4.I had an occasion to consider a similar issue in W.P.No.26295 of 2007 dated 30.10.2008 wherein I have followed the order of the Division Bench made in W.A.No.1198 of 2007 and the judgment of the learned Single Judge, reported in (2007) 2 MLJ 760- Correspondent, Britannia Higher Secondary School, Chennai vs. State of Tamil Nadu, represented by its Secretary, Department of School Education, Chennai and others and has held that the school authorities cannot be directed to maintain the subject roaster. Paragraph 8 and 9 can be usefully extracted hereunder:
"8.As regards the other ground of rejection viz., the petitioner school had not followed the subject roaster, the then First Bench of this Court, by an order dated 20.09.2007, while considering the said issue in W.A.No.1198 of 2007, has held as follows:
"In fact the legal implication of the said proceedings dated 26.10.2004, was considered by this Court in the light of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (in short T.N.Act 29 of 1974) in the Correspondent, Brittannia Higher Secondary School, Chennai vs. Sate of Tamil Nadu, represented by its Secretary, Department of School Education, Chennai and others 2007(2) MLJ 760), and held that the said Act 29/74 does not contemplate any subject roaster to be followed regarding the appointment of Middle Grade Graduate teachers. That was also the decision taken earlier by the Madurai Bench of Madras High court in the Corporate Manager, CSI Corporate Schools vs. State of Tamil Nadu (2006(5) CTC 504). It was also considered in the above said cases that the executive instruction cannot supersede the statutory provision, by relying upon the decision of the Supreme Court in B.N.Nagarajan vs. State of Karnataka (1979 II ILJ 209(SC), which was subsequently reiterated by the Supreme Court in V.Sreenivass Reddy vs. Government of A.P. (AIR 1995 SC 586). Therefore, by virtue of the above said judgments, it is the categoric decision of this Court that the proceedings of the second appellant dated 26.10.2004 by imposing subject roaster in making appointment is not valid and is in violation of the provisions of the Act 29/74. In view of the same, there is absolutely no reason to interfere with the order of the learned Single Judge. Consequently, the writ appeal fails and the same is dismissed with direction to the appellants to approve the appointment of V.J.Titus Prabhakar (Mathematics) with effect from the of his appointment with salary and other benefits within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently,connected miscellaneous petition is closed."
9.The decision of the then First Bench of this Court has been followed by the learned Single Judge of this Court in W.P.No.21885 of 2008 dated 17.09.2008. In yet another decision reported in (2007) 2 MLJ 760- Correspondent, Brittania Higher Secondary School, Chennai vs. State of Tamil Nadu, represented by its Secretary, Department of School Education, Chennai and others, the same view had been taken by the learned Single Judge of this Court."
6.The above said decisions makes it crystal clear that the subject roaster is not applicable to an aided school and as such on the sole ground, the impugned order is liable to be quashed. Accordingly, the Writ Petition is allowed and the impugned order passed by the third respondent in O.Mu.No.955/A2/06 dated 29.08.2006 is set aside. The second respondent herein is directed to accord approval to the appointment of the petitioner as a Junior Grade BT Assistant with effect from 06.07.2006 on the basis of proposal already submitted by the fourth respondent school. It is made clear that the said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petition is closed.
RR To
1.The Director of Elementary Education, College Road, Chennai-6.
2.The District Elementary Education Officer, Theni, Theni District.
3.The Assistant Elementary Education Officer, Bodinayakanur.