IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2010 CORAM : THE HONOURABLE Mrs. JUSTICE R.BANUMATHI and THE HONOURABLE Mr. JUSTICE B.RAJENDRAN Writ Appeal Nos. 1236, 1238, 1239 1337, 1906 and 1908 of 2001 W.A.No.1236 of 2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2.The Director of School Education, (Secondary), College Road, Madras-6. 3.The District Educational Officer, Periyakulam-626 501, Madurai District. ... Appellants Versus St. Aloysius Higher Secondary School, Royappanpatti-626 526, Madurai District, rep. by its Correspondent, Rev.Bro.S.Amalraj. ... Respondent W.A.No.1238/2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2. The Director of School Education, (Secondary), College Road, Madras-6. ... Appellant. Versus The Tamil Nadu Catholic Educational Association, Madras, rep. by its Secretary Rev. Fr. S.M.Charles Borromeo. ... Respondent https://hcservices.ecourts.gov.in/hcservices/ W.A.No.1239 of 2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2. The Director of School Education, (Secondary), College Road, Madras-6. 3. The District Educational Officer, Periyakulam-626 501, Madurai District. ... Appellants Versus St. Aloysius Higher Secondary School, Royappanpatti-626 526, Madurai District, rep. by its Correspondent, Rev.Bro.S.Amalraj. ... Respondent W.A.No.1337 of 2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2. The Director of School Education, (Elementary), College Road, Madras-6. ... Appellant Versus The Tamil Nadu Catholic Educational Association, Madras, rep. by its Secretary Rev. Fr. S.M.Charles Borromeo. ... Respondent W.A.No.1906 of 2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2. The Director of School Education, (Secondary), College Road, Madras-6. 3. The District Educational Officer, Periyakulam-626 501, Madurai District. ... Appellants Versus https://hcservices.ecourts.gov.in/hcservices/ St. Aloysius Higher Secondary School, Royappanpatti-626 526, Madurai District, rep. by its Correspondent, Rev.Bro.S.Amalraj ... Respondent W.A.No.1908 of 2001: 1. The Government of Tamilnadu, rep. by its Secretary, Education Department, Fort St. George, Madras-9. 2. The Director of School Education, (Secondary), College Road, Madras-6. 3. The District Educational Officer, Periyakulam-626 501, Madurai District. ... Appellants Versus St. Aloysius Higher Secondary School, Royappanpatti-626 526, Madurai District, rep. by its Correspondent, Rev.Bro.S.Amalraj. ... Respondent Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge made in W.P.Nos.16233 of 1995, 10890 of 1994, 16236 of 1995, 10889 of 1994; 16234 of 1995 and 16235 of 1995 dated 16.08.1999. filed under Article 226 of the constitution of India to issue a writ of Mandamus, calling for the records relating to the proceedings of the second respondent in Na.Ka.No.54568/D2/94 dated 25.4.1994 and the consequential proceedings of the third respondent in A.T.Mu.No.7612/A3/94 dated 12.7.1994 and quash the same and direct the respondents herein to approve the appointment of a qualified teacher, Mr.S.E.Emmanuel Maria Joseph, record clerk in the promoted vacancy in St.Aloysius Higher Secondary School, Royappanpatti, Madurai District with all salary and emoluments from 9.6.1994 onwards in so far as the petitioner school, St.Aloysius Higher Secondary School, Royapanpatti,Madurai District is concerned -WP No.16233/95 Order of the 2nd respondent passed in his proceedings Na.Ka.54568/D2/94 dt.25.4.94, and quash the same and direct the respondents to approve all the appointments of qualified teachers including Head Master and Head Mistress in the vacancies which arises in the petitioner's school mentioned in Annexure "A' Aided recognised High Schools), and Annexure 'B',(Aided recognised Higher Secondary Schools) in the academic year 1.6.1994, in so far as the petitioner's schools are concerned-WP No.10890/94. calling for the records relating to the proceedings of the 2nd respondent in Na.Ka.54568/D2/94 dated 25.4.1994 and the consequential https://hcservices.ecourts.gov.in/hcservices/ proceedings of the third respondent in A.T.Mu.No.15626/A3/94 dated 17.11.1994 and quash the same and direct the respondents herein to approve the appointment of a qualified teacher Rev.Bro.A.Charles, Tamil Pandit in the vacancy in St.Aloysius Higher Secondary School Royappanpatti, Madurai District, with all salary and emoluments from 3.6.1994 onwards in so far as the petitioner school, St. Aloysius Higher Secondary School, Royappanpatti, Madurai - WP No.16236/1994. Relating to the proceedings of the 2nd respondent in Na.Ka.No.7070/Tho Ka.J1/93, dated 20.5.1994 and quash the same and direct the respondents to approve all the appointments of qualified teachers including Headmasters and Headmistress in the vacancies which arises in the petitioner schools mentioned in Annexure 'A', (Aided Recognised Primary Schools), and Annexure'B' (Aided Recognised Middle Schools) in the academic year 1.6.1994, in so far as the petitioner's Schools are concerned-WP 10889/1994. Relating to the proceedings of the second respondent in Na.Ka.No.54568/D2/94 dated 25.4.1994 and the consequential proceedings of the third respondent in A.T.Mu.No.7613/A3/94 dated 12.7.1994 and quash the same and direct the respondents herein to approve the appointment of a qualified teacher's S.Jeyapaul, M.A.,B.Ed., Secondary grade teachers, in the transfer vacancy in St. Aloysius Higher Secondary School, Royappanpatti, Madurai District with all salary and emoluments from 7.6.1994 onwards in so far as the petitioner school, St.Aloysius Higher Secondary School, Royappanpatti, Madurai District is concerned -WP No.16234/1995. Relating to the proceedings of the second respondent in Na.Ka.54568/D2/94 dated 25.4.1994 and the consequential proceedings of the third respondent in A.T.Mu.No.7614/A3/94, dated 12.7.1994 and quash the same and direct the respondents herein to approve the appoint of a qualified teacher Mr.J.Joseph, M.A., B.Ed., Secondary Grade Teacher, in the retirement vacancy in St.Aloysius Higher Secondary School, Royappanpatti, Madurai District, with all salary and emoluments from 4.6.1994 onwards in so far as the petitioner school, St.Aloysius Higher Secondary School, Royappanpatti, Madurai District -WP No.16235/1995. For Appellants : Mr. P.Wilson, Addl. Advocate General assisted by Mr. G.Sankaran, Spl. Government Pleader (Edn) For Respondents : Mr. A.Xavier Arulraj COMMON JUDGMENT B. RAJENDRAN, J These Writ Appeals arise out of the order of learned single Judge dated 16.08.1999 quashing the Circular Na.Ka.No.54568/D2/94 dated 25.04.1994 and Circular Na.Ka.No.7070/Tho.ka. J1/93 dated 20.05.1994 https://hcservices.ecourts.gov.in/hcservices/ issued by the Appellants 2 and 3 restricting the appointments until the teacher pupil ratio is determined by the Government for the period from 01.06.1994 to 31.05.1995. Since, all the Appeals are arising out of common order and the point for consideration are one and the same, all the Appeals were taken up together and disposed of by this common Judgment. 2. We may briefly refer to the factual background which led to the issuance of the Circulars (i) Na.Ka.No.54568/D2/94 dated 25.04.1994 and (ii) Na.Ka.No.7070/Tho.ka.J1/93 dated 20.05.1994 are as follows:- (i) Since 1980 number of new schools were established which made it difficult for Government to support these schools with grants particularly with its financial and budgetary constrains. While giving recognition to opening new schools/upgradation of the schools, they were informed that no State aid would be extended. Most of these Managements, after accepting recognition without aid, started filing Writ Petitions before the High Court claiming sanction of teaching grant for all the posts in their schools. In view of the pressure from the institutions for sanction of grants and number of Writ Petitions filed, Government studied the entire issue in depth with reference to availability of resources. In order to provide teaching grant to the schools opened up to 1987-88 and also to formulate revised norms, orders were issued in G.O.Ms.No.340 Education dated 01.04.1992 which is superseded the earlier norms – teacher pupil ratio at 50:1. (ii) Not being satisfied with the new norms issued in G.O.Ms.No.340 Edn. dated 01.04.1992, certain institutions moved the High Court and obtained interim orders against the new norms. However, Government obtained interim stay from Supreme Court with the result that G.O.Ms.No.340 Edn. dated 01.04.1992 became applicable to all private aided schools. (iii) Fearing deployment of teachers who would be rendered surplus as per the new norms, Management of several aided schools represented to the Government to revise the norms issued in G.O.Ms.No.340 Edn. dated 01.04.1992. Government constituted a High Power Official Norms Committee in G.O.4(D) No.1, Education dated 16.08.1995 with the Secretary to Government, Education, Science and Technology Department and others to formulate and suggest the revised norms for sanction of teaching posts to aided schools. On the basis of the recommendations of High Power Official Norms Committee, G.O.Ms.No.525 School Education dated 29.12.1997 was issued fixing the staff strength that Elementary schools, High schools and Higher Secondary Schools with effect from 01.06.1998. (iv) After the constitution of High Power Official Norms Committee to suggest the norms for teacher pupil ratio for various kinds of educational institutions, the Director of School Education/Director of Elementary Education [Appellants 2 and 3] sent the impugned Circulars to all the Chief Educational Officers (CEO) and District Educational Officers (DEO) dated 25.04.1994 and 20.05.1994 respectively. The said Circulars requested the CEO/DEO and Inspector of Girls School to inform the Headmasters of the respective school not to fill up the vacancies arising out of resignation, death, voluntary resignation (both teaching and non-teaching vacancies) till the amended https://hcservices.ecourts.gov.in/hcservices/ regulations were framed by the Government relating to the teacher pupil ratio. The said Circulars were in force from 01.06.1994 to 31.05.1995 and those Circulars were impugned in the Writ Petitions. (v) The aided schools challenged the said Circulars on the ground that the Proceedings of the Appellants 2 and 3 in Na.Ka.No.54568/D2/94 dated 25.4.1994 and Na.Ka.No.7070/Tho.ka.J1/93 dated 20.05.1994 is arbitrary, illegal and void and violative of Article 41, 45 and Article 21 and 30(2) of Constitution of India. Most of the students studying in the schools are below 14 years of age who are having right to free education and the right to education directly flows from the right to lift guaranteed under Article 21 of Constitution of India. According to the Writ Petitioners – viz., The Tamil Nadu Catholic Educational Association, Madras and St. Aloysius Higher Secondary School, Royappanpatti, their educational institutions are non-fee levying schools giving free education to its children and all the schools are established and administered for the benefit of poor Christian children. Further case of Writ Petitioners is that the schools cater to these children who come from the economically and socially weaker sections of Society – Scheduled Caste, Scheduled Tribes, Most Backward and Backward Caste. According to the Writ Petitioners, Writ Petitioners challenged the Circulars Na.Ka.No.54568/D2/94 dated 25.04.1994 and Na.Ka.No.7070/ Tho.ka.J1/93 dated 20.05.1994 on the ground that the State is prevented from withholding the services of the teachers to the students and prayed for Certiorarified Mandamus to quash the Proceedings of the 2nd and 3rd Appellants in Na.Ka.No.54568/D2/94 dated 25.04.1994 and Na.Ka.No.7070/ Tho.ka.J1/93 dated 20.05.1994 and also prayed for a direction to the Appellants to approve the appointments of qualified teachers including Headmasters and Headmistress in the vacancies arisen in the schools. 3. The appellants resisted the Writ Petitions by filing counter contending that only after considering the then budgetary provisions and the then forced circumstances by exercising the delegation of powers vested with them issued orders banning the filling up of vacancies arising out of resignation, death, voluntary resignation till the amended regulations were framed by the Government relating to teacher pupil ratio. According to the Appellants, powers are conferred to the Director of School Education to issue instructions and therefore, it was well within the power of Director of School Education to issue such instructions. Further case of Appellants is that any law intended to regulate the appointments will not amount to interference with the over all administrative control of the Management. 4. In the batch of Writ Petitions, learned single Judge held that by the imposition of the ban on filling up of vacancies of teachers, the fundamental right of the pupils to get education is affected. Learned single Judge held that when statute confers right and Management to get grant from the Government, it is not open to the Director of School Education to place embargo on the appointment of teachers resulting in denial of statutory right to provide educational institutions, the learned single Judge quashed the impugned Circulars on the following grounds:- ●Orders was passed in violation of the provisions of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India providing free education up to middle class level. ●Orders are in violation of the provisions of Tamil Nadu Private Schools (Regulation) Act. ●Orders were issued by the Director of School Education, but the Government has not issued the said order ●When there are sanctioned posts of teachers, it is not open to the Director of School Education to issue a general instruction to the effect that even the sanctioned post should not be filled up till the Government takes the decision on the determination of teacher and pupil ratio. 5. Being aggrieved by the order of learned single Judge, Government has preferred batch of Writ Appeals. In G.O.4(D) No.1 Edn. dated 16.08.1995, Government appointed High Power Official Norms Committee to go into the issues relating to teacher pupil ratio in all kinds of aided schools and to submit a report to the Government. Subsequently, Government issued G.O.Ms.No.525 School Education dated 29.12.1997 fixing the ratio of Elementary schools, High schools and Higher Secondary Schools w.e.f. 01.06.1998. During the period of ban [01.06.1994 to 31.05.1995] some of the private aided schools obtained order/direction from the High Court and made appointments in the vacancies. Government also issued G.O.Ms.No.297 School Education dated 05.08.1998 sanctioning the amount of Rs.1,32,64,300/- in respect of 1109 appointments made in the vacancies during the period 01.06.1994 to 31.5.1995. Since the ban was also lifted and Government also issued the said G.O.Ms.No.297 dated 05.08.1998 sanctioning for payment of salary to the appointments made in the vacancies during the ban period, most of the Writ Appeals were disposed off. 6. But in these Writ Appeals, the grievance of the 1st Respondent particularly, Writ Petitioner – Tamil Nadu Catholic Educational Association, Madras is that inspite of issuance of G.O.Ms.No.297 Edn. dated 05.08.1998, as many as 504 appointments made in the vacancies during the ban period were not paid salary and that their appointments were neither approved nor salary was disbursed nor their services were regularised. Learned counsel for Respondent/Writ Petitioner [Tamil Nadu Catholic Educational Association, Madras] Mr.Xavier Arulraj insisted for hearing the batch of Writ Appeals on merits particularly on the question of authority of Director of School Education to issue such a Circulars banning the appointments in the sanctioned posts. 7. Mr. P.Wilson, learned Additional Advocate General contended that any law intended to regulate the service conditions of the employees of educational institutions and any law regulating the grants do not amount to interference with over all administrative control of the Management over the staff and it was well within the powers of the Director of School Education to issue such instructions. It was further contended that the finding of the learned single Judge that Director of School Education has no power is without proper appreciation of various powers conferred under the Act and Rules. The order of learned single Judge was challenged contending that when https://hcservices.ecourts.gov.in/hcservices/ fixing the teacher pupil ratio, the vacancies arising due to retirement, death or other wise could not have been filled up and the learned single did not keep in view the financial burden on the State exchequer. 8. As pointed out earlier, in G.O.Ms.No.495 Edn. dated 29.04.1991, Government constituted High Power Official Norms Committee. The said committee analyzed the data collected by the Inspection Committee constituted by the Director of School Education and examined the claims of the schools given recognition and permitted up to 1987-88 for payment of teaching grant. Accepting the recommendations of the Committee, Government issued G.O.Ms.No.340 Edn. dated 01.04.1992 and accepted the norms of teacher pupil ratio for Elementary schools, High schools and Higher Secondary schools. The recommendation of the Committee was accepted for sanction of posts in private aided Primary/Middle/Secondary/Higher Secondary Schools opened in the year 1987-88 and earlier. 9. The Government again constituted High Power Official Norms Committee vide G.O.Ms.No.809 Edn. dated 27.08.1992 to review the norms relating to staff fixation stipulated in G.O.Ms.No.340 Edn. dated 01.04.1992 so as to find out the possibilities to minimise the release of teaching grant depending upon the forced circumstances and limited budgetary provisions existed then. The Director of School Education and Director of Elementary Education expecting the revised norms from the Government within a short period, exercising delegation of power vested with them issued Proceedings in Na.Ka.No.54568/D2/94 dated 25.04.1994 and Na.Ka.No.7070/Tho.ka.J1/93 dated 20.05.1994 respectively banning the appointment for the vacant posts arising out of retirement, death and voluntary resignation w.e.f. 01.06.1994. 10. The learned single Judge observed so long as the teacher posts remain sanctioned posts, it is not open to the Director of School Education to issue a Circular to the effect that sanctioned posts will not be filled up and it is not open to the Director of School Education to impose a ban of appointment of teachers. Learned single Judge further held that it is not open to the Director of School Education to issue general instructions to the effect that even the sanctioned posts should not be filled up till Government takes decision on the determination of teacher pupil ratio. 11. The Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 provides qualifications, conditions of service of teachers. Rule 6 deals with payment of grant. Rule 6(2) states that payment of monthly 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. Rule 8 deals with qualification for appointment of teachers in minority schools as specified in Annexure III appended to these rules. As per Explanation (3) to Annexure III, the Director of School Education shall be the authority competent to evaluate and accept other qualification for the purpose of appointments. Since grant paid to the minority institutions and private schools, the schools have to get https://hcservices.ecourts.gov.in/hcservices/ prior permission for filling up vacancies as contemplated in Rule 15 of Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 which states that payment of 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. 12. The Power of authorities has been clearly set out in Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 and Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Rule 6 of Tamil Nadu Minority Schools (Recognition and Payment of Grant), 1977 contemplates that approval for appointment of teachers is mandatory before receiving any grant and therefore, minority institutions cannot say merely some teachers have been appointed in regular vacancies, release of grant is automatic even before the approval of appointment of teachers made by the competent authorities. Granting approval to the appointments of staff in minority educational institutions by the Government was upheld by the Supreme Court in [Kolawana Gram Vikas Kendra v. State of Gujarat and others] (2010) 1 SCC 133. 13. Observing that Circular dated 06.10.1988 issued by the State of Gujarat provides that Government aided educational institutions of the State such as Primary schools, Middle Schools, Higher Secondary Schools, Colleges, Sanskrit Pathshalas, Sangeet Vidhyalayas will not give effect to any appointment in teaching and non-teaching posts without prior approval from the State Government or the competent authority. Holding that the said Circular dated 06.10.1988 would not amount to any unconstitutional interference in the internal administration of minority institution and dismissing the appeals, in (2010) 1 SCC 133 [Kolawana Gram Vikas Kendra v. State of Gujarat and others], the Supreme Court held as follows:- "7. In our considered view, we do not view this to be interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there were actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter-affidavit. 8. ................. From the reading of aforementioned Para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the Rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the https://hcservices.ecourts.gov.in/hcservices/ said teachers were appointed. The same applies to the non-teaching staff also. 9. In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned Circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals." 14. In the light of the above facts, when we analyse the impugned circulars dated 25.04.1994 and 20.05.1994, in the first circular, it was clearly stated that the Government had proposed to issue revised norms for teachers; pupil ratio and the matter is now under the active consideration of the Government. Hence, the vacancies existed due to death, retirement, voluntary retirement, resignation etc., in the aided High School and Higher Secondary Schools should not be filled up with effect from 01.06.1994 till the revised norms are issued. Further, it was stated that the Chief Educational Officer, District Educational Officer and Inspectors of Girls Schools were requested to give suitable instruction to the management and heads of the aided school (both minority and non-minority) under their control not to fill up vacancies which existed due to the above reasons and keep them vacant from 01.06.1994 until further orders. This circular was issued by the Director of School Education. Subsequently, in the second Circular dated 20.05.1994 issued by the Director of Elementary Education, it was stated that all the District Educational Officers are informed that granting permission to fill up teachers post which fell vacant due to retirement, resignation, death or voluntary retirement in aided primary/middle school from 01.06.1994 has to be stopped temporarily. Further it was stated that they are requested to inform this to all the Assistant Educational Officer who in turn shall inform the matter to all the management of the school and to keep an acknowledgment from them. It was further stated that the District Educational Officers are requested to send a report on the action taken by them. Thus, by virtue of these two circulars dated 25.04.1994 and 20.05.1994, the Government has given a direction that the appointments arising out of vacancies, including on the death or retirement of a teacher, even in respect of the aided schools, should be stopped temporarily. Though these instructions came with effect from 01.06.1994, subsequently, it was stated that this ban was for a period of one year. This ban was intended for the ostensible purpose to regulate the appointments to suit the convenience in the matter of appointment of teachers by taking note of the relevant teacher;pupil ratio. Therefore, the Government thought it fit to regulate, to upgrade and to maintain high standards in respect of the teacher;pupil ratio and for this purpose the circulars were issued. Therefore, merely because the ban was in force prohibiting appointment of teachers, it cannot be said that it had infringed the rights of the respondents school. 15. In this connection, we will have to take into consideration the changes in the teaching methodology, improved availability of teaching and learning materials To ascertain this, the teacher;pupil ratio has to be made. In fact, the Government issued G.O. 4(D) No.1, https://hcservices.ecourts.gov.in/hcservices/ Education dated 16.08.1995 constituting high powered official norms committee to formulate and suggest revised norms for sanctioning of teaching post to aided schools. Therefore, until such time, the Director of School Education as well as the Director of Elementary Education have issued the impugned circulars to all the subordinate officers directing to issue suitable instructions to all the schools not to fill up the vacancies till the amended regulations were framed by the Government after ascertaining the teacher;pupil ratio. Subsequently, based on the various representations received from the schools, the Government issued