[Judgement of the Court was made by ABDUL QUDDHOSE, J.] The point for consideration in this Writ Appeal is whether Government Aided Minority Educational Institution is required to obtain prior approval from the concerned Educational Authorities for conversion of a Secondary Grade post to a B.T. Assistant post before making appointment of a teacher in the B.T. Assistant post.
2.The Learned Single Judge, by order dated 22.06.2017 in W.P.(MD)No.1853 of 2016, allowed the writ petition filed by the First Respondent challenging the rejection of the approval sought for by the management of the Second Respondent school for conversion of a Secondary Grade teacher post to that of a B.T. Assistant post. Aggrieved by the said order, the Appellants (State) have preferred this Appeal.
3.The brief facts leading to filing of this Writ Appeal are as follows: 3.1.The Second Respondent school is a Private Aided Minority Recognized School. One Felix Lorduraj, who was working as a Secondary Grade Teacher resigned the said post on 05.01.2010. In the said vacancy, the school has appointed the First Respondent as B.T. Assistant (Social Science) teacher on 12.01.2010. The proposals for approval of the said appointment was rejected by the Third and Fourth respondents vide proceedings dated 19.05.2014 and 21.09.2014 respectively, which were challenged by the First Respondent in W.P.(MD)No.1853 of 2016 and the said Writ Petition came to be allowed on 22.06.2017 in favour of the First Respondent and the said order of the learned Single Judge is the subject matter of challenge in this Appeal.
3.2.According to Mr.V.R.Shanmuganathan, Learned Special Government Pleader appearing on behalf of the Appellants, prior permission for conversion of the post of Secondary Grade Teacher to a B.T. Assistant post is required before making appointments to the said post. The Learned Special Government Pleader submitted that regulations are issued by the Appellants in the interest of 'Efficiency', 'Discipline', 'Health', 'Sanitation', 'Morality', 'Public order' and those regulations do not violate
Article 30 (1) of the Constitution of India, affecting the right of Minority Educational Institutions to establish and administer Educational Institutions of their choice.
4.The Learned Special Government Pleader drew our attention to various Government Orders and according to him, the Learned Single Judge did not properly consider and apply those Government Orders and if it was done, he would have come to the right conclusion that prior permission for conversion of post is required before making appointments even if the said Institution was a Minority Institution. The Learned Special Government Pleader, drew our attention to G.O.(Ms)No.79, School Education Department dated 14.06.2002, which ordered that from 2002-2003 academic year, whenever a vacancy arises in the post of Secondary Grade Teacher teaching classes 6 to 8, the post would be converted to that of Middle Grade Graduate Teacher in a phased manner and B.Ed., qualified teachers would be appointed in the Secondary Grade teacher scale but with one increment. Since there are two types of B.Ed., teachers, namely, one taking classes 9 and 10 and another taking classes 6 to 8, one with B.T. Scale and another with Secondary Grade scale, in order to avoid confusion, the Government passed G.O.(Ms).No.100, School Education dated 27.06.2003. It would state that B.Ed., graduates shall be appointed to teach classes 6 to 10 and that whenever vacancies arise in Secondary Grade post, it will be filled up with B.Ed., graduates in a phased manner and that they shall teach Maths, Science and English. Thus, the said Government Order envisaged three types of teachers, namely, Secondary Grade Teachers for classes 1 to 5, B.T. Assistant teachers for classes 6 to 8 and P.G. Assistant teachers for classes 11 and 12. They shall be appointed on consolidated pay with effect from 01.06.2003. The said Government Order created about twelve thousand posts and distributed it to various schools. Accordingly, vide G.O.(Ms).No.125, School Education dated 12.11.2003, Rules were issued. The candidates thereafter appointed on consolidated pay were brought to time scale of pay with effect from 01.06.2006. Thereafter, G.O.(Ms).No.244, School Education Department, dated 22.09.2007 was passed to the effect that B.T. Assistant (Tamil) posts are concerned, 2/3rd shall be promoted from the post of Secondary Grade Teacher and the rest 1/3rd shall be recruited by direct recruitment. Similarly, Secondary Grade teacher post teaching classes 6 to 8 converted to B.T. Assistant posts shall be filled up not only with Maths, Science and English subjects, but also other subjects. Thereafter, G.O.(Ms).No.144, School Education Department dated 04.07.2008 was passed extending G.O.(Ms).No.244 dated 22.09.2007 to aided schools also.
5.After referring to the various Government Orders, the Learned Special Government Pleader submitted that none of the Government Orders or any rule or judgment says that a vacancy being created to a post of Secondary Grade teacher teaching classes 6 to 8 can automatically get converted to a B.T. Assistant post and can be filled up by B.Ed., graduates of any subject without prior permission from the department. The Learned Special Government Pleader, submitted that regulations have been issued by the department only in the interest of 'Efficiency', 'Discipline', 'Health', 'Sanitation', 'Morality', 'Public order' and those restrictions and regulations cannot be construed as violating the provisions of
Article 30 (1) of the Constitution of India, affecting the rights of Minority Institutions to establish and administer Educational Institutions of their choice.
6.The Learned Special Government Pleader, then referred to the decision of the Hon'ble Supreme Court reported in AIR 1974 SC 1389 (Ahamadabad St.Xavier College Society Vs. State of Gujarat), wherein it has been held that the right to administer does not refer to or include right to administer and prescribing the manner of administration were taken to be conceptually different.
7.According to the Learned Special Government Pleader, the Learned Single Judge, ought to have seen the development of Law on Minority Educational Institutions to meet the ground realities keeping in view the mandate of the Constitution. It has become axiomatic that Aided Institutions have to abide by the rules and regulations which are framed by the Government and/or by the affiliating authorities in the matter of recruitment of teachers, staff, their conditions of service, standard of teaching, which are the conditions for grant in aid or for recognition.
8.According to the Learned Special Government Pleader, it is well settled that minorities based on religion or language have fundamental freedom to establish and manage Educational Institutions of their own choice. But, the State has the right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities' fundamental rights of administering their Educational Institutions. Instead, they seek to ensure that such Institution is administered efficiently, and that students who come out of Minority Institutions after completion of studies are well equipped with knowledge and training so as to stand at far in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities right of administration of their Institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the Minority Institutions themselves.
9.According to the Learned Special Government Pleader, the Learned Single Judge ought to have seen that it is open to the State to prescribe conditions that granting recognition or disbursing aid, these conditions may require Minority Institutions to follow prescribed syllabus for examination, courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters. The learned Special Government Pleader then referred to the decision of the Hon'ble Supreme Court reported in (1992) 1 SCC 558, (St.Stephen's College Vs. University of Delhi), and submitted that with respect to the appointment of teachers employed in Minority Institutions, the State could very well regulate and the said regulations do not violate
Article 30 (1) of the Constitution of India. He further submitted that the Minority Institutions are bound by the law and therefore, cannot claim immunity from enforcement of law, in the garb of interference with the administration.
10.According to the Learned Special Government Pleader, the Learned Single Judge ought to have seen that the department cannot take the responsibility to approve the erroneous appointment of the First Respondent for the reason that she was appointed long time before. According to him, it was the duty of the Second Respondent school management to get the approval of the competent department authorities as per rules before making appointment in a particular subject. According to the Learned Special Government Pleader, the First Respondent cannot blame the department for the mistake committed by the Second Respondent school. According to him, in the absence of orders from the Competent Authorities, the action of the Second Respondent management in converting the Secondary Grade Teacher post to B.T. Assistant Teacher post without prior approval and appointing the first respondent in the converted post as B.T. Assistant (Social Science) is against the Government Orders and hence cannot be approved by the department. According to the Learned Special Government Pleader, the orders of the Third and Fourth Appellants dated 19.05.2014 and 21.09.2015, are in accordance with law and do not violate
Article 30 (1) of the Constitution of India and hence, they have to be sustained and not quashed as ordered by the Learned Single Judge in the impugned order.
11.The Learned Special Government Pleader referred to the decision of the Hon'ble Supreme Court in TMA Pai Foundation and others Vs. State of Karnataka and others reported in (2002) 8 SCC 481 to substantiate his argument that right of a Minority Educational Institution under
Article 30 (1) of the Constitution of India is not absolute and regulatory measures can be imposed for ensuring educational standards and maintaining excellence thereof. The State or Controlling Authority can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a Teacher or a Principal of any educational institution. He submitted that as per the judgment of the Supreme Court, regulations for a Minority Institution can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. The Learned Special Government Pleader relying on the said judgment, submitted that the impugned regulations apply to Minority Institutions like that of the Second Respondent and those regulations do not interfere with the overall administrative control of the management over the staff and teachers.
12.The Learned Special Government Pleader also referred to another decision of the Hon'ble Supreme Court reported in (2010) 1 SCC 133 (Kolawana Gram Vikas Kendra Vs. State of Gujarat and others) and submitted that as per the said decision, prior approval of State Government or Competent Authority is required as per Government Circular with a view to verify whether there was vacancy as per work load and whether the candidate possessed minimum prescribed qualification. The Hon'ble Supreme Court has also held that such a requirement does not amount to unconstitutional interference with internal working of the Minority Institution. The Learned Special Government Pleader, therefore submitted that the Learned Single Judge has erroneously rejected the Government Orders and allowed the writ petition in favour of the First Respondent.
13.The Learned Special Government Pleader also drew our attention to the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, and referred to Rule 6 (2), which relates to payment of grant for Minority Schools. Rule 6 (2) reads as follows:
?Payment of monthly staff grant shall be made only in respect of qualified and admissible Teachers actually employed in Minority schools whose appointments have been approved by the concerned authorities according to the number of posts sanctioned to the Institutions concerned.?
14.The Learned Special Government Pleader, relying upon the above said rule, contended that the Second Respondent Institution ought to have obtained prior approval before making appointment of the First Respondent in the converted post of B.T. Assistant.
15.Per contra, M.Joseph Thatheus Jerome, Learned Counsel for the First Respondent submits that for a Minority Educational Institution like that of the Second Respondent, there is no necessity to obtain prior permission from the concerned Statutory Authorities for conversion of the Secondary Grade post to B.T. Assistant post before making appointments to the B.T. Assistant post. According to the Learned Counsel, the First Respondent is well qualified to obtain appointment as B.T. Assistant (Social Science) with the Second Respondent Institution. The Learned Counsel further submits that the Appellants have not disputed the qualification and eligibility of the First Respondent to hold the said post in the Second Respondent Institution. The Appellants have rejected the proposal of the Second Respondent school to regularize the appointment of the First Respondent only on the ground that prior permission is required for conversion of the post prior to the appointment of the First Respondent in the Second Respondent Institution. Being a Minority Institution, and the First Respondent being otherwise well qualified and eligible to hold the post, the Appellant's rejection of the proposal submitted by the Second Respondent violates
Article 30 (1) of the Constitution of India, as the impugned proceedings dated 19.05.2014 and the consequential proceedings dated 21.09.2014 interferes with the smooth functioning of the Second Respondent Minority Institution.
16.The Learned counsel for the First Respondent also submitted that the present issue which is under challenge is covered by the judgment dated 21.03.2012 rendered in a Writ Petition filed by the Second Respondent school, for the same issue in W.P.(MD)No.18044 of 2011, (R.C.Susai Higher Secondary School Vs. The Secretary to Government), seeking grant of approval from the concerned authorities for the appointment of a Teacher with effect from the date of appointment. The Learned Counsel for the First Respondent submitted that all the Government Orders relied upon by the Appellants in this Appeal were duly considered by the Learned Single Judge of this Court, in that Writ Petition and after due consideration, the Learned Single Judge directed the Authorities to grant approval in favour of the Second Respondent school for regularizing the appointment of the concerned teacher with effect from the date of appointment and quashed the impugned order.
17.The Learned counsel for the First Respondent, then drew our attention to the observations recorded by the Learned Single Judge in W.P.(MD)No.18044 of 2011, filed by the Second Respondent, wherein the Government Orders namely, G.O.(Ms).Nos.244, 125 and 144, which the Appellants have relied upon in this Appeal have been duly considered in the impugned judgment, which is the subject matter of challenge in this Appeal. The Learned Single Judge, has held that G.O.(Ms).No.244 and G.O.(Ms).No.144 are not applicable to the Government Aided Schools for want of jurisdiction of the Government to issue any such instructions.
18.According to the Learned Counsel for the First Respondent, the judgment dated 21.03.2012 passed in W.P.(MD)No.18044 of 2011 has become final as no Appeal has been filed against the said judgment. According to the Learned Counsel, applying the Principle of Law laid down in the judgment dated 21.03.2012 passed in W.P.(MD)No.18044 of 2011, there is no merit in the Appeal preferred by the Appellants against the order dated 22.06.2017 passed by the Learned Single Judge.
19.The Learned Counsel for the First Respondent further submitted that the power to make rules under the Tamil Nadu Recognized Private Schools Regulation Act, 1973, [hereinafter referred to as ?the Act?], can only be done by following the law laid down under Section 56 of the said Act. The Rules so framed are required to be published in the Government Gazette so as to be enforceable in law. Since the Appellants have not followed the procedure for framing the rules as prescribed under the Act, the Government Orders relied upon by the Appellants cannot be applied for the instant case.
20.The Learned Counsel for the First Respondent also relied upon the judgment of the Division Bench of this Court in W.A.(MD)No.828 of 2014, and 129 to 132 of 2015 (The Director of School Education Vs. S.Vanitha and others) dated 22.04.2016, and submitted that as per the said judgment, the approval for appointment as a teacher in a private school has to be granted from the date of his appointment and not from the date on which permission for conversion of post was granted and the Division Bench has also held that the aggrieved teachers have also got the right to challenge the written proposals eventhough the management had not challenged the same. Paragraph 11 and 12 are the operative portions of the said judgment, which is re-produced hereinbelow:
?11.In view of the above consistent decision of this Court on the issue, we are of the view that the issue is no more res integra. As rightly contended by the learned counsel for the 1st respondents/teachers, approval has to be granted only from the date of appointment and not from a later date, namely, from the date on which permission for post conversion was granted.
12.Contention by the appellants that the returned proposals were not challenged by the management and hence it has to be treated as accepted and hence the teachers have no right to question the same cannot be accepted. It has to be seen that ultimately, it is the teachers who are affected. Therefore, even if the management has not taken up the cause, the aggrieved teacher has every reason to question the retuned proposals. The educational authorities ought to have considered that the very object of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules made thereunder are to protect the interests of the teachers and students. Therefore, right of the teacher cannot be said to be extinguished. Power of the educational authorities to issue directions to fill-up the posts on conversion cannot be questioned. At the same time, the schools should be given latitude to fill-up the required posts. If Maths and other subject teachers are already working in a school, the management should have the right to fill up the posts with other subjects, if there is a need for filling up the posts with the required subjects.?
21.The Learned Counsel for the First Respondent also relied upon the judgment dated 29.01.2014 in W.P.(MD)No.17562 of 2012, (S.Anthuvan Christi Raj Vs. The State of Tamil Nadu), rendered by one of us (M.VENUGOPAL, J.), to highlight the point that the date of approval of the conversion of post by the Appellants relates back to the date of appointment of the First Respondent in the Second Respondent Institution.
22.Admittedly, the Second Respondent Institution is a Recognized Minority Institution and therefore,
Article 30 of the Constitution of India applies and they have a right to establish and administer Educational Institutions of their choice. The Appellants have also not disputed the eligibility of the First Respondent to hold the B.T. Assistant (Social Science) post in the Second Respondent Institution. The only bone of contention raised by the Appellants is that without prior permission for conversion of post from the Appellants, the Second Respondent Institution cannot make appointment of the First Respondent as B.T. Assistant (Social Science) in the Second Respondent Institution.
23.TMA Pai Foundation case reported in (2002) 8 SCC 481 relied upon by the Learned Counsel for the Appellants is not applicable to the facts of the instant case as admittedly, the First Respondent is duly qualified and eligible to hold the post of B.T. Assistant (Social Science) in the Second Respondent Institution. The relevant portion of the said judgment which the Learned Special Government Pleader relied upon in support of the stand taken by the Appellants is extracted hereunder:
?The State or controlling authority can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution?.
?Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff?.
24.In the case on hand, admittedly, the First Respondent has satisfied the educational requirements and the eligibility criteria stipulated by the Appellants for holding the post of B.T. Assistant (Social Science) and there is also a vacancy in the said post with the Second Respondent Institution. Therefore, the Appellant's interference in the appointments made by the Second Respondent Minority Institution, is un-sustainable. Therefore, according to us, the judgment relied upon by the Appellants reported in (2002) 8 SCC 481, (TMA Pai Foundation case) is not applicable to the facts of the instant case.
25.The next judgment relied upon by the Learned Counsel for the Appellant reported in (2010) 1 SCC 133 (Kolawana Gram Vikas Kendra Vs. State of Gujarat and others), is also not applicable to the facts of the instant case since, in the said case the Government issued a circular to verify as to whether there was a vacancy as per workload and whether the candidate possessed minimum prescribed qualification and that circular was challenged. The Hon'ble Supreme Court upheld the said Government circular. But, the judgment is distinguishable from the facts of the instant case as admittedly in the case on hand, there is no dispute as regards the qualification and the eligibility of the First Respondent to hold the post of B.T. Assistant (Social Science) in the Second Respondent Institution and furthermore, there is also a vacancy for the First Respondent to hold the post as B.T. Assistant (Social Science) in the Second Respondent Institution. Therefore, the facts of the instant case are different from the facts of Kolawana Gram Vikas Kendra case reported in (2010) 1 SCC 133 and therefore, that judgment of the Hon'ble Supreme Court is not applicable for the instant case.
26.
Article 30 (1) of the Constitution of India gives linguistic and religious minorities a fundamental right to establish and administer Educational Institutions of their choice. These rights are protected by a prohibition against their violation. The prohibition is contained in
Article 13 of Constitution which declares that any law in breach of the fundamental rights would be void to the extent of such violation. It is well settled that
Article 30 (1) cannot be read in a narrow and pedantic sense and being a fundamental right, it should be given its widest amplitude. The width of
Article 30 (1) cannot be cut down by introducing in it considerations which are destructive to the substance of the right enshrined therein.
27.Furthermore, it is not the contention of the Appellants that the First Respondent is not qualified and eligible to hold the B.T. Assistant (Social Science) post. It is also not the contention of the Appellants that there is no vacancy in the Second Respondent Institution for a B.T. Assistant (Social Science) post. In fact, Rule 6 (2) of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, does not stipulate that appointments can be made only after getting prior approval from the concerned authorities. It only says that for the eligibility of grant to a Minority Institution, all appointments made by the Minority Iinstitution will have to be approved by the concerned authorities. In the case on hand, the appointment of the First Respondent was made by the Second Respondent Institution and after the appointment, the Second Respondent Institution sought for approval from the concerned authorities, which is in agreement with Rule 6 (2). Further, it is not the case of the Appellants that they have stopped giving grant to the Second Respondent Institution due to the breach of Rule 6 (2) of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977. Therefore, the submission of the Learned Special Government Pleader that the Second Respondent Institution has not followed Rule 6 (2) of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, cannot be accepted by this Court.
28.In a recent judgment in the case of IVY. DA CONCEICAO Vs. State of Goa and others, reported in (2017) 3 SCC 619, the Hon'ble Supreme Court has discussed the scope of judicial review in the case of appointments made by Minority Institutions, which reads as follows:
?A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency.
*However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.*?
29.After considering the various decisions, the Hon'ble Supreme Court in paragraph 15 of the judgment cited supra has held as follows:
?15.The above decisions clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.?
30.In the case on hand, it is not the case of the Appellants that the appointment procedure as regards the First Respondent was not fair, discriminatory and irrational. Therefore, applying the ratio held in the judgment reported in (2017) 3 SCC 619, cited supra, it is held by this Court that the grounds raised by the Appellants for sustaining the impugned proceedings dated 19.05.2014 and 21.09.2015, does not deserve any merit.
31.This Court opines that eventhough the State has the power to regulate Minority Educational Institutions in the interest of 'Efficiency', 'Discipline', 'Health', 'Sanitation', 'Morality', 'Public Order', the impugned proceedings dated 19.05.2014 in O.Mu.No.1143/83/2014, on the file of the Third Appellant and the consequential proceedings dated 21.09.2015 in O.Mu.No.4309/AA1/2015, on the file of the Fourth Appellant, do not come within those parameters and therefore, the said impugned proceedings interferes with an overall administrative control of the Second Respondent Minority Institution over its staff and abridges/dilutes their right to establish and administer their Educational Institution.
32.Having considered the rival submissions and the order passed by the Learned Single Judge, this Court is of the considered view that there is no infirmity in the order passed by the Learned Single Judge and therefore, the Writ Appeal shall stand dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Secretary to Government, Government of Tamil Nadu, Department of School Education, Fort St. George, Madras ? 600 009.
2.The Director of School Education, DPI Campus, College Road, Chennai ? 600 006.
3.The Chief Educational Officer, The Office of the Chief Educational Officer, Thoothukudi District.
4.The District Educational Officer, The office of the District Educational Officer, Kovilpatty, Thoothukudi District.
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