The prayer in the writ petition is to issue a writ of mandamus directing the respondents 1 and 2 to sanction the post of Physical Education Teacher in the 5th respondent School and further direct the respondents to pay salary from 9.11.1988.
2. The case of the petitioner is that the 5th respondent School is a Private Minority Aided School. The 5th respondent School was originally established and administered as Elementary School, which was upgraded as Middle School from 1.8.1981 and further upgraded as High School from 1.6.1988. One post each of Headmaster, B.T.Assistant/Graduate Teacher, Tamil Pandit and Office Assistant were sanctioned to the High School setions with effect from 1.6.1994 and no Physical Education Teacher post and Junior Assistant post were sanctioned. Petitioner states, the strength of the school exceeded 300 from 1994-95; during the year 1988-89 the student strength was 203; and during the year 1989-90 the strength was 250. The 5th respondent management, in anticipation of the sanction of Physical Education Teacher post, appointed the petitioner as Physical Education Teacher from 9.11.1988. The petitioner claims that he is fully qualified to hold the said post as he had passed B.A. and D.P.Ed degrees. Before joining in the 5th respondent School, the petitioner served in Antonia Desoza High School, Bombay, from June, 1983 to November, 1988, and he resigned from the said post and joined in the 5th respondent school on 9.11.1988.
3. The 5th respondent submitted representations to the respondents 1 to 4 for sanction of one Physical Education Teacher post as per G.O.Ms.No.340 Education Department, dated 1.4.1982, which states that one post of Physical Education Teacher is allowed to High Schools, if the student strength exceeds 300. In the year 2000, the respondents 3 and 4 recommended for sanction of Physical Education Teacher post for the 5th respondent School. The School management thereafter having failed to take any further steps and the petitioner having been appointed and working in the 5th respondent school from 9.11.1988 without salary and other benefits, he has chosen to file the above writ petition for sanction of the post to the 5th respondent School and for consequential payment of salary and other benefits.
4. According to the petitioner, the 4th respondent sent a report on 21.12.2001 and requested the third respondent for sanction of the post. The second respondent through his proceedings dated 20.4.2002 called for certain particulars from the 5th respondent School, which was also furnished by the 5th respondent. The petitioner being the aggrieved person, submitted representations on 27.1.1995, 21.9.1995, 7.10.1997, 19.7.1999, 9.12.1999 and 18.7.2002 and 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 the instructions given by the 4th respondent argued the case.
6. The learned counsel appearing for the petitioner argued that such of those schools which were opened/upgraded during the period 1988-89 and 1989-90, on condition that no amount will be paid for the initial period of three years, were granted sanction of post by the Government through G.O.Ms.No.50 Education, Science and Technology Department, dated 20.1.1995, with effect from 1.6.1994. The second respondent through his proceedings dated 27.1.1995 sanctioned one post each of Headmaster, B.T.Assistant, Tamil Pandit and Office Assistant, with effect from 1.6.1994. The said sanction of post was ordered following the guidelines issued for the sanction of posts in G.O.Ms.No.340 Education Department, dated 1.4.1992. In the said Government Order it is stated that if the strength of the School exceeds 300, the School is entitled to get sanction of one post of Physical Education Teacher. The learned counsel for the petitioner further submitted that the strength of the School was more 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 the strength was 332; for 1996-97 the strength was 333; for 1997-98 the strength was 346; and for 1998-99 the strength was 321 for standards 6 to 10. The management of the School also sent a representation to the second respondent on 7.12.1999 and requested to sanction Physical Education Teacher post. The 4th respondent through his proceedings dated 4.8.2000 requested the third respondent to allot one post of Physical Education Teacher if any post is found surplus in any other school. The second respondent through his proeedings dated 20.4.2002 sent a communication to the third respondent to find out as to whether any post is found surplus in other school for allotment to the 5th respondent School for Physical Education Teacher post.
7. The learned counsel for the 5th respondent supported the contentions of the learned counsel for the petitioner and submitted that the 5th respondent School having been granted 4 posts viz., Headmaster, B.T.Assistant, Tamil Pandit and Office Assistant and the 5th respondent School having satisfied the norms for the sanction of Physical Education Teacher post, at least from 1.6.1994, as the strength of the school exceeds 300, the respondents 1 to 4 are bound to sanction one post of Physical Education Teacher from 1.6.1994, so that the petitioner may get his appointment approved from the said date and get salary.
8. The learned Additional Government Pleader on instructions submitted that no physical education Teacher post is sanctioned to the 5th respndent school from 1.6.1994. The petitioner having been apointed 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 the learned counsel for the petitioner, learned Additional Government Pleader for the respondents 1 to 4 and learned counsel for the 5th respondent School.
10. The 5th respondent school is a Christian Religious Minority School. Admittedly the High School sections were granted recognition without aid for a period of three years. It is the admitted case of the petitioner as well as the respondents that the schools opened/upgraded during the year 1988-89 and 1989-90 on condition that no grant will be paid for three years, have been granted sanction of posts from 1.6.1994 through G.O.Ms.No.50 Education Science and Technology Department, dated 20.1.1995, with effect from 1.6.1994. The proceedings of the second respondent dated 27.1.1995 clearly demonstrates that the 5th respondent School was sanctioned four posts viz., Headmaster, B.T.Assistant, Tamil Pandit and Office Assistant from 1.6.1994, consequent to the issuance of G.O.Ms.No.340 Education Department, dated 1.4.1992 and G.O.Ms.NO.50 Education, Science and Technology Department, dated 20.1.1995. For proper appreciation G.O.Ms.No.50 Education, Science and Technology Department, dated 20.1.1995 is extracted hereunder:
"GOVERNMENT OF TAMIL NADU ABSTRACT Schools 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.
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The request for extending staff salary grant from State Government funds to recognised Private Schools (Minority as well as non-minority) opened/upgraded during the period 1988-89 and 1989-90 on condition of non-payment of grant for the initial three years has been under the consideration of Government. Though in none of these cases, the Government have given any specific commitment that they will take over the grant liability after 3 years, yet the matter has been carefully examined by the Government on compassionate grounds having regard to the strength of students, number of standards in each school and also the norms for sanction of posts prescribed in G.O.Ms.No.340 Education dated 1.4.92. The Government after careful consideration, sanction teaching and non-teaching posts to the schools as indicated in the Annexures I, II and III to this order for assessment of salary grant with effect from 1-6-1994. The Director of Elementary Education and Director of School Education are authorised to permit assessment of salary grant for the posts in the schools under their administrative contract as indicated in the Annexure I, II and III to this order on the regular scales of pay indicated therein with effect from 1.6.1994 the minimum being allowed from 1.6.94 with increments due in future. No arrears will be payable for the periods prior to 1.6.1994.
2. The expenditure on the staff unassessed for grant over and above the posts for which assessment of grant is now approved if any, will have to be borne by the Managements of Schools from their own funds if they want to continue those posts. The managements are also free to disband such posts in their discretion.
3. The expenditure on the posts now sanctioned for Elementary Schools will be debited to the following heads of accounts:-
"2202 General Education 01.Elementary Education 102 Assistance to non-Government Primary 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 for High and Higher Secondary Schools will be debited to the following heads of accounts:-
"2202-General Education 02, Secondary Education-110 Assistane to non-Government Secondary Schools-I. Non-plan-AA.General 09.Grants-in-aid" (D.P.C.Code 2202 02 110 AA 0909)
5. The expenditure sanctioned is on a "New Service" and the approval of the legislature shall be obtained in due course. Pending approval by legislature, the expenditure will be initially met by an advance from contingency Fund, orders regarding which will be issued separately from Finance (B.G.I) Department. The Director of School Education and Director of Elementary Education should apply to the Government in the Finance (BGI) Department in the prescribed proforma for the sanction of advance from the contingency fund.
6. This orders issued with the concurrence of Finance 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 as follows:
"PROCEEDINGS OF THE DIRECTOR OF SCHOOL EDUCATION, CHENNAI.
Rc.No.11338/G3/95 Dated:27-1-95 Sub: Schools Recognised Private Schools Elementary/Middle/High/ Higher Secondary Schools Opened/ Upgraded during 1988-89 and 1989-90 assessment of grant from 1.6.94 Government Order-
Communicated.
Ref: G.O.Ms.No.50, Education, Science and Technology/(D1)Department, dated 20-1-95.
---
Copy of the G.O. read above is communicated to the undermentioned Officers for urgent necessary action.
They are requested to release the Staff grant for the posts in the schools noted below under their administrative control as indicated in annexure II and III in the G.O. in the regular scales of pay indicated therein with effect from 1.6.94 the minimum being allowed from 1.6.94 with increments due in future. No arrears will be payable for the period prior to 1.6.94.
The other instructions issued in the G.O.read above should be scrupulously followed.
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Name of the Name of the No.of Scale of School posts posts Pay
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St.Joseph's 1)Headmaster One 2000-60-2300-
High School, 75-3200 Rajakkaman- 2)BT Assistant One 1400-40-1600- galamthurai, 50-2300- Kanyakumari 60-2600 District 3)Tamil Pandit One -do- 4)Office Assistant One 750-12-879- 15-945 --------------------------------------------------------------------- Sd/-xxxxxxxx DIRECTOR OF SCHOOL EDUATION"
SCHOOL EDUCATION DEPARTMENT From To Thiru.S.Ramaian, M.A.M.Ed., The Chief Educational District Educational Officer, Officer, Thakkalai - 629 175 Nagercoil R.O.C.NO.4991 A1/2000 dated 4.8.2000 Sub: Secondary Education Minority Aided - St. Joseph Higher Secondary School, 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.
The details regarding the teachers working in the approved post of the School Head Master - 1 Asst. Headmaster - 2 Tamil Teacher - 1 Secondary Grade Teachers - 10 Tailoring Teacher - 1 (part time) Office Assistant - 1 Admission and attendance of students from 6 to 9 for the past 5 academic years, as on 1st August. Year Admission Attendance 1995-96 322 322 1996-97 333 333 1997-98 326 326 1998-99 326 319 1999-2000 307 307 Admission of the students in the academic year 2000-2001 (standard wise) Standard Male Female Total 1 23 21 44 2 27 17 44 3 33 21 54 4 35 25 60 5 26 24 50 282 6 42 20 62 7 23 27 50 8 16 36 52 9 34 25 59 10 29 19 48 271
The Correspondent of St.Joseph's Higher Secondary School, Rajakkamangalam Thurai, having understood the importance of physical education to the students of the School, appointed a qualified physical education teacher during the academic year 1988-89 itself. There is adequate strength of students in this school to sanction a post of Physical Education Teacher.
Out of the two posts of Physical Education Teacher sanctioned to Dr.Samuel High School, Santhapuram, Thuckalai Education district, one post was surplus due to the poor attendance of students. I humbly submit that since one Thiru.A.John Aruldoss Alexander who had been working in the surplus post, retired from service on superannuation from the afternoon of 31.5.1989, the said post is not utilized till this day and further humbly submit that the post was withdrawn 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, if the surplus post which withdrawn, had not been allotted to any other school, which requires that, this post may be allotted to St.Joseph Higher Secondary School, Rajakkamangalam Thurai and utilized.
Sd/-xxxxxxxxx for District Educational Officer, Thuckalai. In spite of 5th respondent School having satisfied the norms for the sanction of post, admittedly no post of Physical Education Teacher was granted to the 5th respondent school and consequently the petitioner is unable to get his appointment approved and get salary, at least from 1.6.1994.
12. Similar issue was considered by this Court (Honourable Mr.Justice M.Srinivasan, Acting Chief Justice, as he then was) in W.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 posts as per G.O.Ms.No.340 dated 1.4.1992. This Court allowed the writ petitions and issued mandamus to sanction teaching and non-teaching posts to the said schools on satisfaction of conditions enumerated in G.O.Ms.No.340 dated 1.4.1992. The said order passed by this Court in the batch of cases were implemented by the respondents 1 to 4 and sanctioned the required number of posts to the writ petitioner institutions therein. In fact, one Physical Education Teacher post was sanctioned to St.Stephens High Schools, South Palavillai, Velayutha Nagar, Kollencode post, Kanyakumari District, as per order passed in W.P.No.2124 of 1995 dated 18.4.1996.
13. As rightly contended by the learned counsel for the petitioner, the 5th respondent management has not filed any writ petition for the sanction of Physical Education Teacher post and consequently no post was sanctioned to the 5th respondent School from 1.6.1994.
14. Whether the Government can discriminate with regard to the sanction of posts while sanctioning posts to other institutions, came up for consideration before the Division Bench of this Court in the decision reported in (2008) 4 MLJ 289 (G.Sahadevan Nair v. Government of Tamil Nadu). In the said decision, the writ appeal challenging the order of the learned single Judge in dismissing the writ petition and the batch of writ petitions seeking sanction of additional posts were allowed and in paragraph 29 it is held as follows:
"29. For the aforesaid reasons, we allow the various writ petitions by giving the following directions:
(i) The State of Tamil Nadu and the other authorities concerned shall consider the application of each of the Institution for grant-in-aid within a period of 16 weeks without being influenced by the fact that such institutions had been established without obtaining any prior permission and also by the fact that such institutions had given letter in writing indicating that after obtaining recognition they will not claim any grant-in-aid. However, while considering such application, the relevant facts such as the existence of necessary infrastructure, teacher-student ratio and the eligibility of the concerned teacher to hold the post should be considered.
(ii) If it is found that any particular institution is entitled to receive any aid, decision should be taken with regard to eligibility within a period of four months and should be communicated to the concerned institution.
(iii) If any institution is found eligible to receive such aid, necessary payment shall be made within a further period of four months from the date of such sanction.
(iv) The continued right of any institution to receive any aid is to be considered keeping in view the relevant G.O., applicable from time to time.
(v) Similarly, in respect of minority institutions, which were receiving aid in respect of some of the posts and were seeking for approval and payment of aid for any additional post, such question is required to be considered within a period of four months by keeping in view the teacher-pupil ratio applicable during any particular period.
(vi) If, on the other hand, any school or any post is found ineligible for sanction of grant, such decision should be communicated to the concerned institution by giving brief reasons within a period of three weeks from the date of order of refusal."
(Emphasis Supplied)
15. The issue as to whether a teacher appointed in an Aided School, which has got eligibility to get sanction of post, who is working in the School in anticipation of sanction of posts, can file a writ petition and pray for sanction of posts and consequential payment of salary, and whether the department has got defence to deny the post on the ground of want of finance was considered by me in the decision reported in (2006) 3 MLJ 242 (C.Manonmony v. State of Tamil Nadu). Paragraphs 13 to 16 reads as follows:
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 21.12.1993 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 17.8.1998 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 Court on 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 more particularly 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."
In fact the judgment in (2006) 3 MLJ 242 (cited supra) was approved by the Division Bench in the decision reported in (2008) 4 MLJ 289 (cited supra) in paragraph 20. The learned counsel for the 5th respondent submitted that the department implemented the decision of mine reported in (2006) 3 MLJ 242 (cited supra) subject to the result of review to be filed against the order passed by the Division Bench on 28.8.2008 in M.P.No.1 of 2008 in W.A.SR.No.92492/2008, vide proceedings of the Director of School Education in Na.Ka.No.87009/D(E5)/08, dated 29.8.2008.
16. The 5th respondent school being a fully Aided Minority High School and the students admitted in the school being mostly within the age group of 6 to 14, the respondents are bound to sanction the required number of posts as it is the fundamental right of the said students to get free education in terms of Article 21A of the Constitution of India. The said fundamental right will have full meaning only if the teaching posts are sanctioned to the said School by the Government.
17. In the decision reported in (2008) 3 SCC 315 (Superstar Education Society v. State of Maharashtra) in paragraph 11 the Supreme Court considered the role of private schools in imparting education to fulfil the obligation of the State to provide free and compulsory education as guaranteed under Article 21A of the Constitution of India. Paragraph 11 reads thus, "11. It is the duty of the State Government to provide access to education. Unless new schools in the private sector are permitted it will not be possible for the State to discharge its constitutional obligation. Permission has been granted to 1495 new schools under the Order dated 16-5-2006 on permanent no-grant basis without any financial commitment or liability on the part of the State Government, even in future, and at the same time ensuring that the schools follow the parameters and conditions prescribed by the Education Code, reserving liberty to the authorities to take appropriate action, should there be any violation. The said Order does not contravene any provision of law. It was not even the case of the writ petitioner that the schools permitted did not fulfil the conditions and requirements relating to such schools."
In 2009 (3) Supreme 142 (Avinash Mehrotra v. Union of India & Others) the Supreme Court considered the very same issue and in paragraphs 25 to 27 it is held thus, "25. Education today remains liberation a tool for the betterment of our civil institutions, the protection of our civil liberties, and the path to an informed and questioning citizenry.
26. Then as now, we recognize education's "transcendental importance" in the lives of individuals and in the very survival of our Constitution and Republic. In the years since the inclusion of Article 21A, we have clarified that the right to education attaches to the individual as an inalienable human right. We have traced the broad scope of this right in R.D.Upadhyay v. State of A.P. & Others, AIR 2006 SC 1946, holding that the State must provide education to all children in all places, even in prisons, to the children of prisoners. We have also affirmed the inviolability of the right to education. In Election Commission of India v. St.Mary's School & Others, (2008) 2 SCC 390, we refused to allow the State to take teachers from the class room to work in polling places. While the democratic State has a mandate to conduct elections, the mundane demands of instruction superseded the State's need to staff polling places. Indeed, the democratic State may never reach its greatest potential without a citizenry sufficiently educated to understand civil rights and social duties, Bandhua Mukti Morcha v. Union of India & Others, (1997) 10 SCC 549. These conclusions all follow from our opinion in Unni Krishnan. Education remains essential to the life of the individual, as much as health and dignity, and the State must provide it, comprehensively and completely, in order to satisfy its highest duty to citizens.
27. Unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent or guardian of every child, and on the child herself. Article 21A, which reads as follows, places one obligation primarily on the State:
"The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.""
18. The respondents 1 to 4 having admittedly sanctioned Physical Education Teacher posts to similarly placed Schools from 1.6.1994, the non-sanctioning of the post to the 5th respondent School is discriminatory and violative of
Article 14 and 30(2) of the Constitution of India.
Article 30(2) of the Constitution of India reads as follows:
"
Article 30(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."
19. I am aware of the fact that normally Courts are not entitled to issue mandamus to sanction/create post and it is the prerogative of the Government to sanction the post. In this case, having regard to the facts of this case as well as the recommendations made by the respondents 4, 3 and 2, the eligibility to get sanction of the post is not in dispute. Physical education to the students is in the curriculam as per the syllabus of the School Education in standards 6 to 10. Thus, the respondents 1 to 4 are bound to sanction the post of Physical Education Teacher to the 5th respondent school. The 5th respondent School is also discriminated and the earlier order of this Court made in W.P.No.21020 of 1994 etc., dated 18.4.1996, ordering to sanction posts is also implemented. Consequently, the petitioner is entitled to succeed in this writ petition and a writ of mandamus is issued to the respondents 1 to 4 to sanction one Physical Education Teacher post to the 5th respondent School with effect from 1.6.1994 and approve the appointment of the petitioner as Physical Education Teacher with salary and other benefits after satisfying with the qualification possessed by the petitioner for the said post. The first respondent is directed to pass the post sanction order as ordered above on or before 30.10.2009 and the 4th respondent is directed to grant approval of the appointment of the petitioner as Physical Education Teacher, if the petitioner is found qualified and pay arrears of salary and other benefits from 1.6.1994, within a period of two weeks from the date of receipt of order from the Government.
The writ petition is partly allowed with the above directions. No costs.
vr To
1. 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.
4. The District Educational Officer, Thackalay, Kanyakumari District