In the High Court of Judicature at Madras Dated: 18.11.2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice V.Dhanapalan Writ Appeal No.1172 of 2008 & M.P.No.1 of 2008 1. The Secretary to the Government, School Education Department, Fort St.George, Chennai-600 006. 2. The Director of School Education, College Road, Chennai-600 006. 3. The District Educational Officer, Cheranmahadevi Educational (District), Tirunelveli District, Tirunelveli. .. Appellants vs. 1. P.Velusamy Holy Redeemers Higher Secondary School, Tisaiyanvilai, Tirunelveli District. 2. The Correspondent, Holy Redeemers Higher Secondary School, Tisaiyanvilai, Tirunelveli District. 3. The Manager of R.C. Schools, Tuticorin Diocese Bishop House, Tuticorin-2. .. Respondents Writ Appeal filed U/C.15 of Letters Patent against the order dated 14.7.2008 passed by the single Judge in Writ Petition No.13683 of 2008, on the file of this Court. This W.P. filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of the 2nd respondent issued in M.M.No.41188/W.5/E3/08 dated 30.5.2008 quash the same and https://hcservices.ecourts.gov.in/hcservices/ issue a consequential direction to the Respondents to extend the service of the petitioner beyond the period of super annuation as per the G.O.Ms.No.837 dated 4.5.76 and as per the memorandum issued by the Union of India in No.F 1-9/80-Sch.5 dated 30.6.1981. For appellants : Mr.G.Sankaran, Spl.G.P. For respondents: Mr.R.Thiagarajan, Senior Counsel for Mr.R.Saseetharan for R-1 (caveator) Judgment S.J.Mukhopadhaya,J The Writ Appeal has been preferred by the appellants-State (respondents 1 to 3 in W.P.No.13683 of 2008) against the order dated 14.7.2008 passed by the learned single Judge in Writ Petition No.13683 of 2008, whereby the learned single Judge, while setting aside the order of rejection, dated 30.5.2008, whereby the request of the first respondent-writ petitioner seeking extension of service on the ground of Best Teacher Awardee, was rejected by the second appellant-Director of School Education, Chennai, directed the second appellant-Director of School Education to pass fresh orders in the light of G.O.Ms.No.837, dated 4.5.1976, issued from the Education Department of the State. 2. The first respondent-writ petitioner was a Teacher in the second respondent-Holy Redeemers Higher Secondary School, Tisaiyanvilai, Tirunelveli District, a Government aided, private School. For the academic year 2004-2005, the first respondent-writ petitioner was awarded "Best Teacher Award", which Award was named after the then President of India Hon'ble Dr.Radhakrishnan. He earlier moved before this Court in Writ Petition (MD).No.4048 of 2008, praying for issuance of a Writ of Mandamus, to direct the first and second appellants herein to extend the service of the first respondent-writ petitioner beyond the period of superannuation, pursuant to the State Government's order contained in G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department and as per the Memorandum issued by the Union of India, in No.F.1-9/80-Sch.5, dated 30.6.1981. The said case having been remitted to the appellants-State for considering the representation of the first respondent-writ petitioner, dated 5.11.2007, in the light of G.O.Ms.No.837, dated 4.5.1976, the same was considered and rejected by the second appellant-Director of School Education in the proceedings in Rc.No.41188/W5/S3/2008, dated 30.5.2008. https://hcservices.ecourts.gov.in/hcservices/ 3. The main plea taken by the appellants-State was that G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department, was never given effect to. 4. The learned single Judge, by the impugned order dated 14.7.2008 in Writ Petition No.13683 of 2008, rejected such submission of the appellants-State and held that G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department, is still in force and thereby, the appellants-State are bound to consider the request of the first respondent-writ petitioner after satisfying that he is a National Awardee and is mentally and physically fit. 5. Before this Court, one of the grounds taken by the learned Special Government Pleader appearing for the appellants-State is that the decision contained in G.O.Ms.No.837, dated 4.5.1976, is not applicable to the Teachers of Government aided private Schools. In this connection, reply of the learned counsel appearing for the first respondent-writ petitioner is that G.O.Ms.No.837, dated 4.5.1976 would not make any distinction between the Government School and the Government aided private School and it takes in its fold all National Award Teachers of the State of Tamil Nadu. 6. The other stand taken on behalf of the appellants-State is that G.O.Ms.No.837, dated 4.5.1976 cannot be given effect to, for which, reply of the learned counsel appearing for the first respondent-writ petitioner is that the said decision as contained in G.O.Ms.No.837, dated 4.5.1976 is still in force. 7. The only question that arises for determination in the present Writ Appeal is whether the first respondent-writ petitioner is entitled for the advantage arising out of G.O.Ms.No.837, dated 4.5.1976, issued from the Education Department of the State. 8. We have heard the learned counsel appearing for the parties and noticed the rival contentions and also perused the relevant records. 9. It appears that the Government of India, Ministry of Education, New Delhi, by their letter dated 26.3.1968, suggested that the age of retirement of National Awardee Teachers may be extended by five years. The State of Tamil Nadu, after careful consideration, accepted the suggestion and took the following decision as contained in G.O.Ms.No.837, dated 4.5.1976: "The Government of India in their letter read above, suggested that the age of retirement of National Awardee teachers may be extended by 5 years. https://hcservices.ecourts.gov.in/hcservices/ 2. The Government after careful consideration accept their suggestion and accordingly direct that the date of retirement of National Awardee teachers of this State be extended by five years, subject to the condition that they are physically and mentally fit." 10. Subsequently, on deliberation, the Government of India was of the opinion that the Award winners and other Teachers could not be treated differently in the matter of extension of service and that the special treatment in favour of the former, would be violative of Article 14 of the Constitution of India. This was communicated to the State Government, vide Government of India's proceedings issued from the Ministry of Education and Culture, Department of Education, in No.F-1-9/80-Sch.5, dated 30.6.1981, as quoted hereunder: "I am directed to refer to this Ministry's letter No.F.1-51/77-Sch.5 dated 14.11.1977. This letter was issued on the basis of the legal opinion tendered to this Ministry that award winners and other teachers could not be treated differently in the matter of extension of service and that special treatment in favour of the former would be violative of Article 14 of the Constitution. 2. Ever since this concession was withdrawn, there have been numerous representations requesting that the National Awardee teachers should continue to get the benefit of extension of service. The matter was examined again in consultation with the Ministry of Law, Justice and Company Affairs whose views are given in the Annexure. These views may be kept in mind while considering the cases of National Awardee teachers for granting extension in service beyond the age of superannuation." Annexure: "Views of the Ministry of Law, Justice and Company Affairs on the question of granting Extension of service to National Awardee Teachers: While dealing with the question of giving extension in the age of retirement to National Awardee teachers, it was suggested to the State Governments and Union Territory Administrations that the age of retirement of National Awardee https://hcservices.ecourts.gov.in/hcservices/ teachers may be extended for five years subject to their being round physically and mentally fit. The question is whether this is legally feasible. 2. It is presumed that the age of retirement of teachers is extendable by two years if the teacher is meritorious and is mentally and physically fit for the same. This is equally applicable to both the national awardee and non- awardees. At the time the question of extension of service is considered, a teacher may have become mentally and physically inappropriate or may have lost interest in teaching for various reasons, even though he may have been a teacher of exceptional merit with or without a national award. In this case he should not get an extension. 3. The extension in the age of superannuation to a National awardee could also be granted in the interest of procuring his services in the public interest in the field of education and for no extraneous reasons. Therefore, it will be but necessary to see that even a teacher with a National Award is mentally and physically fit and qualified to be of exceptional merit at the time of grant of extension of service. 4. There may be cases in which a teacher who has not been awarded National Award may acquire exceptional merit and all the qualities of an outstanding teacher by the time he is to be considered for extension even though they have no National Award to their credit. 5. There can be no legal objection to the extension of the age of superannuation beyond 60 years to a teacher of outstanding merit who is mentally and physically fit. National Awardee will of course deserve consideration in that category. It is purely an administrative decision if the State Education Department wants to make provisions for extensions beyond 60 years. 6. The above observations may kindly be kept in view while dealing with requests for extension of service of teachers irrespective of whether they are national Awardee or not." https://hcservices.ecourts.gov.in/hcservices/ 11. It is not in dispute that the Teachers of Government aided private Schools, like the first respondent-writ petitioner, are guided by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (for short, 'the Private Schools Act') and the Rules framed thereunder, namely the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (for short, 'the Private Schools Rules'). 12. Section 19 of the Private Schools Act relates to "Qualifications, conditions of service, etc., of teachers and other persons employed in private schools", which reads as follows: "Section 19: Qualifications, conditions of service, etc., of teachers and other persons employed in private schools: The Government may make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of the teachers and other persons employed in any private school." 13. With regard to such conditions of service, like pay and allowances of teachers and other persons employed in private schools, the relevant Rule is Rule 19 of the Private Schools Rules, which was relied upon by the learned counsel appearing for the first respondent-writ petitioner to suggest that all Government instructions are also applicable for Teachers of Government aided Private Schools. In fact, learned counsel appearing for the first respondent-writ petitioner placed reliance on the so-called amended Rule 19 of the Private Schools Rules, which reads as follows: "19. Pay and allowances of teachers and other persons employed in private schools to be paid in the prescribed manner. The procedure for payment of pay and allowances to teachers and other persons employed in private schools shall be as in annexure III. The Fundamental Rules, the Tamil Nadu Leave Rules, and the Tamil Nadu Pension Code, and the Govt. orders issued from time to time regulating various allowances, concessions etc., unless otherwise specifically ordered, shall apply mutatis-mutandis to the teachers and other persons employed in posts approved by the Department and admitted to aid." 14. Learned counsel appearing on behalf of the appellants-State, on instructions, opposed such submission of the learned counsel appearing on behalf of the first respondent-writ petitioner and submitted that the above said Draft Rules of the Private Schools https://hcservices.ecourts.gov.in/hcservices/ Rules cannot be relied upon, as no amendment having been made in the existing Rule 19 of the Private Schools Rules, which reads as follows: "19. Pay and allowances of teachers and other persons employed in private schools to be paid in the prescribed manner: The procedure for payment of pay and allowances to teachers and other persons employed in private schools shall be as in Annexure III." 15. Learned counsel appearing on behalf of the first respondent- writ petitioner could not lay hand on any Gazette Notification or the amended Rule to show that the existing Rule 19 of the Private Schools Rules, was amended, as highlighted by the learned counsel for the first respondent-writ petitioner. In the absence of such authenticity, we are not inclined to accept the Draft Rules of Rule 19 of the Private Schools Rules (quoted above) relied on by the learned counsel appearing for the first respondent-writ petitioner. 16. So far as existing Rule 19 of the Private Schools Rules, is concerned, it does not stipulate that all Government Orders would also be made applicable to the Teachers of the Government aided Private Schools. Annexure-III of the Private Schools Rules, is also silent on the same. 17. Under Section 19 of the Private Schools Act, the Government may make "Rules" regulating the number, qualifications and conditions of service, including the age of retirement. Such "Rules" can be framed only under Section 56 of the Private Schools Act. 18. It will be evident from G.O.Ms.No.837, dated 4.5.1976 that it is not a "Rule" framed under Section 56 of the Private Schools Act, and therefore, it cannot be presumed that the said G.O.Ms.No.837, dated 4.5.1976 amounts to amendment of the Private Schools Rules. 19. A Government Order made for its employees is not automatically applicable to the employees of all Government aided Private Schools, till the instructions so suggest. It cannot be presumed that G.O.Ms.No.837, dated 4.5.1976 is applicable to the Teachers of the Government aided Private Schools. 20. Learned counsel appearing for the appellants-State also brought to our notice G.O.Ms.No.100, dated 27.6.2003, issued from School Education (Budget) Department, wherein certain decision has been taken in regard to Schools, particularly, Secondary Grade Teachers of the State. In the said G.O.Ms.No.100, dated 27.6.2003, the following stipulation has been made in regard to the applicability of the same to the Government Aided Schools: https://hcservices.ecourts.gov.in/hcservices/ "5. Teachers posts in Government Aided Schools shall be filled up with reference to instructions issued in para 1 & 2 after the issue of necessary amendments to Tamil Nadu, Recognised Private School (Regulation) Act, 1974 for which, instructions will be issued separately." 21. Similarly, vide G.O.Ms.No.125, dated 12.11.2003, issued from School Education (X2) Department, while certain decisions were taken with regard to the Junior Grade Teacher Posts, who were allowed only consolidated pay, Notification was issued by the State under Section 56 of the Private Schools Act, making amendment to Rule 15 of the Private Schools Rules. 22. In view of the aforesaid facts, we hold that G.O.Ms.No.837, dated 4.5.1976 issued from Education Department of the State, is not applicable to the Teachers of the Government Aided Private Schools and thereby, the first respondent-writ petitioner was not entitled to get the benefit out of the said G.O.Ms.No.837, dated 4.5.1976. 23. So far as the aforesaid G.O.Ms.No.837, dated 4.5.1976 is concerned, as it was pointed out by the Government of India in the letter dated 30.6.1981 that the same is violative of Article 14 of the Constitution of India, the State Government has recently issued G.O.Ms.No.199, dated 17.9.2008 from School Education (Q.2) Department, whereby the benefit granted by G.O.Ms.No.837, dated 4.5.1976, was withdrawn and the said G.O.Ms.No.837 was cancelled. 24. In view of the fact that G.O.Ms.No.837, dated 4.5.1976 was declared to be violative of Article 14 of the Constitution of India by the Government of India, it was not open for the learned single Judge to direct the appellants-State to give effect to such illegal G.O. in favour of one or other person. 25. We accordingly set aside the impugned order dated 14.7.2008 passed by the learned single Judge in Writ Petition No.13683 of 2008, and allow the Writ Appeal, but in the facts and circumstances of the case, there shall be no order as to costs. The Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to the Government, School Education Department, Fort St.George, Chennai-600 009. 2. The Director of School Education, College Road, Chennai-600 006. 3. The District Educational Officer, Cheranmahadevi Educational (District), Tirunelveli District, Tirunelveli. 4. The Correspondent, Holy Redeemers Higher Secondary School, Tisaiyanvilai, Tirunelveli District. 5. The Manager of R.C. Schools, Tuticorin Diocese Bishop House, Tuticorin-2. 1 CC to the Government Pleader, SR NO.64147 Writ Appeal No.1172 of 2008 CK(CO) PMK/24.11.2008. https://hcservices.ecourts.gov.in/hcservices/