State of Tamilnadu Rep. by v. H.S.Sureshkumar

JUDGMENT (Judgment of the Court was delivered by R.SURESH KUMAR,J.) This appeal had been directed against the order passed by the Writ Court in W.P.No.34004 of 2012 dated 27.11.2017.

¶2The second respondent was an Aided Recognized Minority School. In the school, various courses upto +2 had been undertaken, where the school management seems to have got a permission from the authorities to start a vocational course in the year 1988. Though such a sanction was given to the second respondent school, it was a conditional sanction that, no aid would be given, therefore, no post would be sanctioned. Page No.2/27

¶3Therefore, for a computer instructor post, when the first respondent/writ petitioner was appointed sometime in 1998, it was an appointment by the school management on self-finance basis and not for an aid post.

¶4In that capacity, the first respondent was working for several years and ultimately, the Government had come forward to issue a Government Order viz., G.O.Ms.No.35, School Education Department, dated 09.02.2007, where 201 temporary part time vocational instructors, who were appointed through Parent Teacher Association had to be absorbed on permanent basis, for which 201 temporarily working part time vocational instructors can be absorbed in the 201 vacancies that has been created. In this regard, it was purely a policy decision taken by the Government as has been announced by the Hon'ble Chief Minister in the floor of the assembly at the time of debate.

¶5Accordingly, the G.O.Ms.No.35, School Education Department, dated 09.02.2007 was issued. Page No.3/27

¶6As per G.O.Ms.No.35, 200 plus vocational instructors, who were temporarily appointed and working in various schools without getting the Government salary but only a Parent Teacher Association salary or the school management salary had been regularized.

¶7In order to extent the said benefit, the writ petitioner also, who is the first respondent herein, had approached the Educational Department i.e., authority concerned seeking to extent such benefit to regularize his service in a Vocational Instructor post.

¶8The said request made by the first respondent as well as the second respondent having been considered was rejected by the appellant State i.e., Director of School Education Department by order dated

02.12.2009, where the Director has taken the following stand: @ghh;it 2y; Fwpj;j kDjhuhpd; nfhhpf;if kD cah;ePjpkd;w jPh;g;ghizf;fpz';f ghh;it 3y; Fwpj;j ehfh;nfhtpy; Kjd;ikf; fy;tp mYtyhpd; Fwpg;g[iu kw;Wk; gs;spj; jhshshpd; fojk; ,tw;wpd; mog;gilapy; fPnH xg;gkplg;gl;l mYtyuhy; ftdKld; ghprPypid bra;ag;gl;lJ/ ehfh;nfhtpy;

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¶9Aggrieved over the same, the first respondent filed the said writ petition, which was allowed by an order dated 27.11.2017 by the Writ Court, as against which, the present appeal has been directed. Page No.5/27

¶10Assailing the said order, the learned Government Pleader would contend that, insofar as the right of a teacher or a school to seek for sanctioning the post with an aid is concerned, that is governed by the provisions of the Tamil Nadu Recognised Private Schools Regulation Act, 1973 [in short, 'the Act'] and in the context of Section 14-A of the Act, it is not as a matter of right such a school or a teacher can seek for sanctioning of the post and to regularize the service of the teacher concerned, who appointed in a non-sanctioned post. Therefore, neither the teacher nor the school can have a right to seek for a mandamus from the Court of law to give a direction to the State authorities to sanction a post in an already aided school by giving aid also. If that mandamus is issued that will run contra to Section 14-A of the Act. Therefore, the learned Government Pleader would submit that, despite this legal position, the learned Judge had allowed the writ petition and given direction to the authorities to sanction the post and regularize the service of the first respondent Teacher as Vocational Instructor.

¶11In support of his contention, the learned Government Pleader has relied upon a Division Bench Judgment of this Court in a batch of writ appeal in W.A.No.730 of 2019 etc., batch dated 27.04.2021 in the Page No.6/27 matter of The Government of Tamil Nadu, rep. By its Secretary, School Education Department Vs. S.Vijaya Santhakumar and Anr.

¶12The learned Government Pleader has relied upon the following passages of the said judgment: " 4. Similarly, the Government of Tamil Nadu issued G.O.Ms. No.35, School Education (Vocational) Department, dated 09.02.2007, in and by which, 201 vocational teachers Grade II posts were directed to be filled up from among the list of Vocational Teachers based on seniority. The names of the first respondent in all these appeals, find place in the list of 201 vocational teachers, but except 34 vocational teachers, all others were appointed in the regular time scale of pay. The first respondent in these appeals, fall within 34 Vocational Teachers, whose service was not regularised. The reason assigned to deny the benefit of appointment in regular time scale of pay for those 34 teachers, is that, the posts in which they are working, are created after 01.04.1992 and as such, as per Section 14-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, those 34 vocational teachers cannot be regularised into service, since there is no grant for those posts. Hence, the writ petitions were filed before the learned Single Judge. Page No.7/27 ..........

¶13We have heard the submissions of the learned counsel on either side and perused the materials placed on record.

¶14It is to be stated that in the State of Tamil Nadu, from the year 1978, Vocational Instruction stream of education is imparted in Higher Secondary level. While so, the Government of Tamil Nadu issued GO Ms. No.991, Education Department in and by which 2956 Vocational Teachers, who were appointed prior to 16.07.1990, were brought into regular time scale of pay and regularised in service. By the very same Government Order, the Government prohibited the appointment of the individuals as Vocational Teachers stating that the employees working in Government Aided School should alone be appointed as part time Vocational Teachers, since none of the employees working in the Government and aided institution had come forward to work as part-time Vocational Teachers, individuals were appointed. On 20.09.1996, the Government issued G.O.680, from Education Department, bringing 235 fully qualified Vocational Instructors into regular time scale of pay as part time teachers and they were regularised in service by relaxing the condition stipulated in GO Ms. No.991, Education Department, dated

16.07.1990. On 13.06.2002, the Government of Tamil Nadu issued GO Ms.No.74, Education (Vocational) Department Page No.8/27 bringing those 235 regular part time vocational teachers and other 126 part time teachers into regular time scale of pay and regularised in the existing vacancy as Vocational Teachers Grade II in time scale of pay applicable to the post of Secondary Grade Teachers. However, on

09.02.2007, the Government issued GO.Ms.No.35, School Education (Vocational) Department, in and by which, 201 vocational instructors, GradeII were directed to be filled up among the vocational teachers based on seniority. The names of the first respondent (writ petitioners) in these appeals find place in the list of 201 vocational teachers, however, except 34 vocational teachers, all are appointed in the regular time scale of pay. The reason assigned to deny such benefit of regular time scale of pay for those 34 teachers, including the first respondent/writ petitioner in these appeals, is that the post was created after 01.04.1992 and as per Section 14-A of Tamil Nadu Recognised Private Schools (Regulation) Act, the 34 teachers cannot be regularised in service, since there is no grant for those posts.

¶15In view of the above submission, it is worthwhile to extract Section 14-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 which reads as follows:-"Section 14-A: Grant not payable to new private Page No.9/27 schools and new class and course of instructions:-Notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court or other authority, no grant shall be paid to:-

(a) any private school established and any class or course of instruction opened in such private school, on or after the date of commencement of the academic year 1991-1992

(b) any private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement

(c) any class or course of instruction in a private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement; and

(d) any class or course of instruction opened on or after the date of commencement of the academic year 1991-1992 in a private school in existence on the date of such commencement Explanation : - for the purpose of this section, private school includes a minority school."

¶16As per Section 14-A of the Tamil Nadu Page No.10/27 Recognised Private Schools (Regulation) Act, no further grant can be allowed to any post for new course from the academic year 1991-1992. All the first respondent (writ petitioners) in these appeals were appointed subsequent to the year 1992. In fact, the validity of Section 14-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, was challenged by the private schools Management before this Court in the case of Maria Grace Rural Middle School, Venkatarayapuram, Nanguneri Taluk, Tirunelveli, by its Correspondent Rev.Fr.A. Antony Raj vs. The Government of Tamil Nadu, rep. by its Secretary, Education, Science and Technology Department, Fort St. George, Chennai and others, reported in 2006 (5) CTC 193, where the Constitutional validity of Section 14-A was upheld. But it is the submission of the learned counsel appearing for the first respondent in these Writ Appeals/writ petitioners that, unlike other academic subjects, vocational subjects are distinct, since it is sponsored by the Central Government. Therefore, Section 14-A of the said Act is not applicable to the case on hand.

¶17It is pertinent to note that, though it is claimed by the first respondent that, since the vocational subjects are sponsored by the Central Government, the aid was granted only by the State Government. When the aid was granted by the State Government, it cannot be said that Section 14-A of the said Act will not be applicable to the case on hand. Page No.11/27 Moreover, the appellants/State had not chosen to add the Central Government as a partyrespondent in these appeals. Further, from a reading of the above said decision of the Division Bench of this Court, it is seen that the "grant" is not a "fundamental right". When that be so, this Court cannot issue a Mandamus when the first respondent in these appeals were appointed contrary to Section 14-A of the said Act. The Private Schools cannot appoint the first respondent in these appeals (writ petitioners) as against Section 14-A according to their whims and fancies and thereafter, ask the state Government to grant aid.

¶18It is the submission of the learned counsel appearing for the respective first respondent/writ petitioners that the first respondent's name was included in G.O.Ms.No.35 along with 201 teachers and except the 34 teachers all others were appointed and their service was regularised. But it is the reply of the learned Additional Advocate General that the first respondent/writ petitioners' name was wrongly included in the Government Order along with those who have already been appointed prior to

01.04.1992, and therefore, the Government refused to grant the benefit. The wrong inclusion of the name of first respondent was subsequently rectified by Government issuing Government Letter No.245/School Education Department dated 08.12.2008.

¶19On a perusal of the records, we find that the Page No.12/27 persons, whom the first respondent compared as having been regularised in service, were accommodated in the superannuated post in the Government School, whereas, the first respondent in these appeals were appointed by the private school without the approval of the competent authorities as per their whims and fancies and thereafter, the Private Schools are compelling the Government to grant aid. Therefore, the wrong inclusion of their name will not give any right to them to seek regularisation. In fact, by a Government letter dated 08.12.2008, the wrong inclusion of the name of the first respondent/writ petitioner(s) was rectified by the Government. Further, the first respondent (writ petitioner(s)) herein did not challenge the Government letter, dated 08.12.2008 excluding their names from the list of persons.

¶20The learned Additional Advocate General appearing for the appellants placed reliance on the decision of the Supreme Court in the case of State of Rajasthan and others vs. Daya Lal and others reported in

(2011) 2 Supreme Court Cases 429, wherein it was held as follows:- "12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for Page No.13/27 regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. Page No.14/27

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."

¶21Thus, it is evident that a Mandamus cannot be normally issued to regularise the service of an employee or to absorb an employee or to continue the service of an employee. A refusal to issue such a relief of Mandamus will Page No.15/27 not offend the constitutional guarantee contained under Articles 14 and 16 of The Constitution of India. In the present case, the appellants herein have rightly refused to regularise the service of the first respondent in these appeals. While so, we are inclined to interfere with the order passed by the learned single Judge in the writ petitions filed by the first respondent in these writ appeals.

¶22In the light of the above, the Order dated

17.04.2018 passed by the learned Single Judge in Writ Petition Nos. 31021 to 31027 of 2015 etc., is hereby set aside. The writ appeals are allowed. No costs. Connected Miscellaneous Petitions are closed."

¶13Per contra, Mr.B.Goapalakrishnan, learned counsel appearing for the first respondent and Mr.P.Godson Swaminathan, learned counsel appearing for the second respondent would contend that, insofar as the second respondent school is concerned, it is not in dispute that it is a recognized private aided minority institution. In a minority running recognized private aided institution, whenever a new course or an additional staff is required and if it is sanctioned that should be only on the basis of the aid, as without which, no aided school can survive. Page No.16/27

¶14Insofar as the course that was sanctioned in the year 1988 to the second respondent school is concerned, it was based on the need such a course was sanctioned and when a course was sanctioned initially, the aid was not given, that does not mean for ever such aid can be denied to the school.

¶15In this context, the learned counsel appearing for the second respondent would contend that, there were 5 posts that were required to be pressed into service, out of 5 posts 4 were sanctioned and aid was given subsequently by the very same authorities. When that being so, this Computer Instructor post alone has been singled out, where the sanction was denied for the reason best known to them.

¶16If a course is sanctioned, where there were 5 course subjects are provided, for which, four course subjects, sanction is given with aid and denying sanction with aid to one course subject, which is part and parcel of the curriculum concerned is a denial of such subject to the students to get them imparted in the training and teaching and therefore, it is also violative of Article 14 of the Constitution of India. Hence, the Page No.17/27 learned counsel would contend that non sanctioning of the Computer Instructor post at the second respondent school, where the first respondent was appointed long back in the year 1998 is a discrimination.

¶17The learned counsel also would contend that, insofar as the denial of sanction by citing Section 14-A of the Act is concerned, an earlier Division Bench in the matter of G.Sahadevan Nair Vs. Government of Tamil Nadu, rep. By its Secretary, Education Department & Ors. reported in 2008 4 MLJ, has considered those aspects, where the learned Judge has relied upon the following passage: "11. The validity of Section 14-A of the Act, inserted by Amending Act 11 of 1999, was under challenge and ultimately the Division Bench in the decision in Maria Grace Rural Middle School, rep. By its Correspondent Vs. Government of Tamil Nadu, rep. By its Secretary Education, Science and Technology Department and Others, 2006 (5) CTC 193: (2007) 2 MLJ 497 (Mad) upheld such provision. The ratio of the said Division Bench decision is to the effect that no private school, whether minority or non-minority, established after 1991-92, or those in existence during the academic year 1991-92, but not receiving aid before 1991-92, would be entitled to claim any aid from the State Government. So far as the Page No.18/27 schools which were established before the said date and were in receipt of the aid (in our opinion, this should also include those schools which were entitled to receive aid in accordance with the Government Orders/ Instructions issued from time to time laying down the norms relating to teacher -pupil ratio. The last such G.O is G.O.Ms.No.525 dated 29.12.1997. The controversy relating to the Teacher – Pupil ratio, which was persisting for considerable length of time, has ultimately been resolved in the Full Bench decision in Director of Elementary Education, Chennai and Others Vs. Tmt. S.Vigila, Thoothukudi District and Another

(2007) 1 MLJ 199."

¶18Relying upon this observation made by the Division Bench, learned counsel would contend that insofar as the school established before the said date i.e., before Section 14-A of the Act has come into effect and were in receipt of the aid shall however, continue to receive the aid in accordance with the Government orders/instructions from time to time laying down the norms relating to Teacher -pupil ratio. In this context, it was the opinion rendered by the Division Bench that this position should also be included to those schools, which were entitled to receive aid and were illegally denied by the Government. Page No.19/27

¶19Therefore, the learned counsel would contend that, insofar as the second respondent school is concerned, though it is entitled to receive the aid, that was denied by the Government without any plausible reasons, therefore, such kind of schools would be entitled to continue to get aid despite Section 14-A of the Act having been inserted or brought into the statute.

¶20Hence, the learned counsel appearing for the respondents would contend that, the denial made by the authorities to sanction the post of Computer Instructor in the second respondent school and as a sequel to approve the appointment of the first respondent in the said post from 1998 is not only discriminating, but also against the judgment of the Division Bench cited supra and even in the teeth of Section 14-A of the Act. Hence, the order passed by the learned Judge has to be sustained, they contended.

¶21We have considered the said rival submissions made by the learned counsel appearing for the parties and have perused the materials placed before this Court. Page No.20/27

¶22No doubt true, that there was a need of starting a course with vocational instructors in the second respondent school earlier in the year 1988 itself. However, cautiously the Government while giving such permission to start the course had stated that no aid will be given and no post will be sanctioned and that position still continues and that denial of post or sanction of the post has never been questioned by the school even till date.

¶23In the meanwhile, in the year 1992 Section 14-A of the Act has been brought in in the Tamil Nadu Private Schools Regulation Act, whereby the aid has been stopped for new school or new course to be started even in the existing old aided schools. Though the said provision has been challenged before this Court in the case of Maria Grace Rural Middle School, Venkatarayapura, Nanguneri Taluk, Tirunelveli, rep by its Correspondent Rev.Fr.A.Antony Raj Vs.The Government of Tamil Nadu, rep. By its Secretary, Education, Science and Technology Department, Fort St.George, Chennai and Ors. reported in 2006 (5) CTC 193, the validity of the said Section has been upheld. Page No.21/27

¶24Therefore, as per Section 14-A, since it is a non-obstante clause, it says that, "notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court or other authority, no grant shall be paid to any private school established and any class or course of instruction opened in such private school, on or after the date of commencement of the academic year 1991-1992".

¶25Therefore, in this case, even though the course was started prior to 1992, the condition imposed by the authority not to give the aid was accepted by the school and they acted upon by appointing Teacher in various subjects for the said course sanctioned in 1988 on self-finance basis and they never challenged such denial of sanction of post or aid by the State Government.

¶26When that position was continued, Section 14-A of the Act has come into effect from 1992 and therefore, by virtue of Section 14-A now it is a right of the Authority to deny such sanction of post or aid, against which, as a matter of right no one can seek for a mandamus to be issued Page No.22/27 by this Court either by the Teacher or by the School. This legal position in fact has been reiterated by the Division Bench in the said judgment cited supra i.e., in Vijayasanthakumar's case.

¶27Even though it was cited by the learned counsel appearing for the respondents that in the case of G.Sahadevan Nair reported in (2008) 4 MLJ 289, the opinion rendered by the Division Bench that those schools, which were entitled to receive the aid and were illegally denied by the Government also would be included for getting such aid or continued to get aid is concerned, the fact remains that the school has not agitated the issue at any point of time either before the authorities concerned or before a Court of law. Therefore, after 1992, even that right has been diminished in view of the validity of Section 14-A of the Act having been considered was upheld.

¶28When that being the position, whether a mandamus can be issued to the authorities i.e., the appellant herein to sanction a post of Computer Instructor in order to accommodate the first respondent Teacher in the second respondent school at this juncture i.e., at the time when he files the writ petition before this Court ? Page No.23/27

¶29In order to delve into this question, what has been held by the Division Bench (Vijayasanthakumar's case (cited supra)) in this context can very well be pressed into service.

¶30Even though G.O.Ms.No.35 has been issued, which has been taken as an aid by the Teacher to seek for such benefit on par with the Teachers, who have been regularized under G.O.Ms.No.35, it must be reminded that such a gesture has been shown voluntarily by the Government by taking a policy decision not based on any mandamus issued by this Court.

¶31Even now, it is open to the appellant authorities to come forward to give rescue to so many teachers like the present first respondent to sanction the post, where they have been appointed earlier and the aid also can be sanctioned to them for the purpose of salary, but not as a matter of right neither the school nor the teacher can seek for such gesture from the Government, for which, no such mandamus can be issued by this Court. This legal position has been made very clear in the said judgment of Vijayasanthakumar's case cited supra. Page No.24/27

¶32If we applies the said proposition in the present facts and circumstances of the case, the order passed by the learned single Judge allowing the said writ petition by giving a mandamus to the authorities to sanction the post and regularize the service of the writ petitioner in such a non-sanctioned post is concerned, it is against the settled law especially in the context, where Section 14-A of the Act has been upheld by the Division Bench judgment. Therefore, we are in agreement with the said order passed by the Co-ordinate Bench in the Vijayasanthakumar's case, therefore, this writ appeal deserves to be allowed.

¶33In the result, the writ appeal stands allowed and the impugned order passed by the learned single Judge, which is impugned herein is set aside. Connected miscellaneous petition is closed. No costs.

¶34However, allowing of this writ appeal and dismissing the writ petition filed by the first respondent would not preclude either the first respondent or the second respondent school to make a plea before the appellant authorities to sanction the post of Computer Instructor at the second respondent school, where the first respondent has already been Page No.25/27 appointed and has been working for all these years. If any such request is made either by the first respondent or by the second respondent that can be considered by the appellant Authority in accordance with law at their discretion. (R.S.K.,J.) (K.B., J.)

31.07.2023 Index: Yes Speaking Order mp Page No.26/27

R.SURESH KUMAR., J. and K.KUMARESH BABU.,J. mp Writ Appeal No.1813 of 2018

31.07.2023 Page No.27/27

2024:MHC:5857 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 31.07.2023 CORAM THE HONOURABLE MR. JUSTICE R.SURESH KUMAR AND THE HONOURABLE MR. JUSTICE K.KUMARESH BABU Writ Appeal No.1813 of 2018 and C.M.P.No.14610 of 2018 1.State of Tamil Nadu represented by its Secretary to Government, School Education Department, Secretariat, Chennai – 600 009. 2. The Director of School Education, DPI Complex, College Road, Chennai – 600 009. 3. The Joint Director of School Education, (Vocational), DPI Complex, College Road, Chennai – 600 009. ... Appellants Vs 1. H.S.Suresh Kumar 2. The Correspondent, Scott Christian Higher Secondary School, Joshuva Street, Nagercoil, Kanyakumari. ... Respondents Page No.1/27 PRAYER : Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order dated 27.11.2017 made in W.P.No.34004 of 2012 and allow this writ appeal. For Appellants : Mr.M.Murali Government Advocate For Respondent : Mr. B.Gopalakrishnan [R1] Mr.P.Godson Swaminathan for M/s.Isaac Chambers [R2]