IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.08.2008 Coram THE HONOURABLE Mr. JUSTICE P.JYOTHIMANI Writ Petition Nos.23647 of 2004 and 1741 of 2006 and M.P.Nos.28645 of 2004 and 1996 of 2006 M.Sahul Hameed Correspondent, Madhanisa Muslim High School, Palani – 624 601, Dindugul (Dist) .... Petitioner in both the W.Ps. -Vs.- 1. The State Government of Tamil Nadu, Rep. by its Secretary, Education Department, Secretariat, Fort St. George, Chepauk, Chennai – 600 009 ... 1st respondent in W.P.No.1741 / 2006 2. The Director of School Education, (Secondary Education) College Road, Chennai – 600 006 ... 2nd respondent in W.P.No.1741 / 2006 & 1st respondent in W.P.No.23647 / 2004 3. The Chief Educational Officer, Dindugal District ... 3rd respondent in W.P.No.1741 / 2006 & 2nd respondent in W.P.No.23647/2004 4. The District Educational Officer, Palani, Dindugal District.... 4th respondent in W.P.No.1741/2006 & 3rd respondent in W.P.No.23647/2004 PRAYER IN W.P.No.23647 OF 2004.: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the first respondent proceedings dated 13.03.2004 bearing Mu.Mu.No.9997/D3 (4)/01, quash the same and further direct the first respondent to accord sanction for payment of salary for one Tamil Teacher and one Physical Education Teacher employed to the petitioner school, in conformity with guidelines set-out in G.O.Ms.No.525 dated 29.12.1997. PRAYER IN W.P.No.1761 OF 2006.: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus to direct the first respondent to accord sanction for https://hcservices.ecourts.gov.in/hcservices/ payment of salary for one Tamil Teacher and one Physical Education Teacher employed in the petitioner school in conformity with reference being made by State Minorities Commission bearing proceedings Lr.No.A1/399/2003, dated 19.12.2003 and as per the guidelines set out in G.O.Ms.No.525 dated 29.12.1997. For Petitioner in both the W.Ps. : Mr. A.Prabhakaran For Respondents in both the W.Ps. : Mr. K.H.Ravikumar, Govt. Advocate (Education) - - - C O M M O N O R D E R The writ petitioners-School which is a minority school was started in the year 1936 with Standards I to IV as Primary School, subsequently the school was upgraded in the year 1955 as Middle School and it was further upgraded as High School with effect from 01.06.1993. In the said school classes for VI to VIII standards are conducted with the Government Aid and classes for IX and X standards are conducted without grant and on self-financing pattern. The case of the petitioners is that in the year 1998 the petitioner’s-school has requested for grant of six teachers, four in the subjects and one for Tamil and one for Physical Education. Since the same was not considered the petitioner has approached this Court by filing W.P.No.9315 of 1998 and the said writ petition was disposed of on 09.07.1998 directing the Director of School Education, the first respondent therein, to consider the claim of the petitioners-Institution. After the said order it appears that the educational authorities have granted four secondary grade teachers posts to the petitioners-school, however, the claim of the petitioners to grant one Tamil Teacher and one Physical Education Teacher was not considered. The petitioners appears to have approached this Court onceagain by filing W.P.No.14214 of 2002 which was disposed of by this Court on 02.09.2003 directing the respondent therein to consider the claim of the petitioner. It was after the direction given by this Court on 02.09.2003 as stated above the Director of School Education has passed the order dated 13.03.2004 which is impugned in W.P.No.23647 of 2004. In the said impugned order it is stated that the post of Tamil Teacher as well as the Physical Education Teacher in the petitioners-school was not approved and therefore no Government Aid can be granted in respect of the said teacher posts. It is also stated in the impugned order that as and when the Government considers the increasing of the sanctioned strength of the teachers of the petitioners-school the claim of the petitioners will be considered preferentially. It is this order which has been challenged on the basis that the petitioner, being a Minority Institution, is entitled for grant in respect of the teachers up to High School Standard. https://hcservices.ecourts.gov.in/hcservices/ 2. It is also seen that subsequently based on some report of the State Minority Commission dated 19.12.2003 which appears to have given recommendation to the school educational authorities to increase the sanctioned strength of the petitioners-school and based on G.O.Ms.No.525 dated 29.12.1997 the petitioner has filed the other writ petition in W.P.No.1741 of 2006 for a direction against the Government of Tamil Nadu, Educational Department, to sanction for payment of salary for one Tamil Teacher and one Physical Education Teacher employed in the petitioners-school in confirmity with the directions of the State Minority Commission and also as per G.O.Ms.No.525 dated 29.12.1997. 3. On a reading of the pleadings it is seen that the petitioners-Institution which has not been granted approval for the two post of teachers in Tamil as well as Physical Education has appointed some teachers from 1997 onwards and based on the recommendations of the Minority Commission though claimed the to release the salary, the said two teachers have been appointed without any sanctioned strength. 4. The fourth respondent-District Educational Officer, Panani, has filed a counter affidavit. In the counter affidavit the fourth respondent has admitted that the petitioners-school was started in the year 1936 as a Primary School which was subsequently up-grated as Middle School in 1995 and further the school was upgraded as High School with effect from 01.06.1993. It is also admitted that Standards VI to VIII in the petitioners- school is conducted with the Teaching Grant by the Government and in respect of Standards IX and X the same are conducted on self- financing pattern without teaching grant. It is also stated in the counter affidavit that the petitioner has given a written undertaking that the petitioner would not claim any grant to run Standards IX and X and the petitioner will continue to run the said standards on the self financing basis. It is also the case of the fourth respondent in the counter affidavit that the strength of the petitioners-school as on 01.08.2004 is as follows:- Standard Total Strength No. of Section VI 134 3 VII 118 3 VIII 92 3 that apart in respect of IX and X standards there are 88 and 58 students admitted in the petitioners-school on self-financing pattern and totally there are 490 students studying in the petitioners-school. https://hcservices.ecourts.gov.in/hcservices/ 5. It is seen that G.O.Ms.No.525, School Education (D1) Department, dated 29.12.1997 imposes the revised norms for assessment of grant for teaching post in the private school, wherein in paragraph 7 it is held as follows:- “7. The above norms will be in supersession of Rule 17 and 18 of Madras Educational Rules and G.O.Ms.No.250, Education, dated 29.2.1964, G.O.Ms.572, Education, dated 20.3.78 and G.O.Ms.No.340, Education, Science and Technology, dated 1.4.92. These norms for assessment for grant will be applicable to the schools opened and recognised upto 1990-91 Schools opened and recognised after 1990-91 will not be eligible for any grant (including minority schools) and they will be only on self-financing basis”. 6. It is made clear that the assessment of grant will be applicable to the schools opened and recognised up to 1990-1991 and as far as the classes up to VIII Standard the grants are released to all the schools since the same is a fundamental right to impart education to children up to 14 years. The Government Order also states that in respect of the appointment of teachers after the said period, including Minority Schools, there will not be any grant and they have to run on self financing pattern. The said Government Order itself has been passed as per the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as “the Act”), particularly as per Sections 14 and 14-A of the Act. Section 14-A of the Act which restricts the appointment of grant of new private schools and new class and course of instructions restrict that no grant would be paid to any private school established on or after the commencement of the academic year 1991-1992 or any private school in existence as on the year 1991-1992 to run without Government Aid. Section 14-A of the Act reads as follows:- “14-A. Grant not payable to new private schools and new class and course of instruction. - Notwithstanding anything contained in this Act or in any other law for the time being in force 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; https://hcservices.ecourts.gov.in/hcservices/ (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.” The validity of the said provision was questioned before this Court by many of the Minority Schools on the basis that the said Section 14-A which imposes a ban on the claim of any grant in respect of the schools started after 1991-1992 is in violation of the fundamental rights guaranteed under Article 21 and 21-A of the Constitution of India apart from the provisions under Article 39, 41, 45 and 46 of the Constitution of India. A Division Bench of this Court in a batch of writ appeals decided in the case of Maria Grace Rural Middle School v. The Government of Tamil Nadu (DB) reported in 2006 (5) CTC 193 presided over by The Hon ‘ble Mr. Justice P.Sathasivam, as he then was, has upheld the validity of the said provision holding that the grant in aid is neither a fundamental right nor a statutory right and it depends upon the economic capacity of the State and further observing that there is no allegation or dispute as to the fact that the Government is providing free education to the children below 14 years, thereby indicating that up to 14 years the free education is a fundamental right under Article 14-A of the Constitution of India and consequently the Government is duty bound to confer grants to all schools whether minority or otherwise. The operative portion of the judgment of the Division Bench is as follows:- “48. As rightly pointed out, the recognition cannot be linked with aid and the recognition is not a pre- condition for aid, nor is aid a precondition for recognition. The State has all powers to enforce norms and impose conditions as a pre-requisite for recognition. As discussed earlier, aid is not automatic and cannot be claimed as a matter of right. The facts and figures furnished in the Annexures which we have already referred to in the earlier part of our order clearly show that the State has been fulfilling its obligation under Article 45 of the constitution safeguarding the fundamental right to education and the management cannot claim that in order to help the State to fulfill its Constitutional obligation, aid must be granted to their schools. Under these circumstances, we hold that the impugned provision, viz., Section 14-A of the Tamil Nadu Recognised Private Schools (Regulation) Act does not violate any of the provisions of the Constitution and https://hcservices.ecourts.gov.in/hcservices/ the same is constitutionally valid. Grant-in-aid is neither a fundamental right, nor a statutory right and it depends upon the economic capacity of the State. There is no allegation or dispute as to the fact that the Government is providing free education to the children below 14 years. The particulars furnished show that no Government School or Aided School is denied the right of imparting free education to the children. The State Government, taking note of various aspects including the fact that it has achieved Gross Access Rate in the year 2003-2004 itself in fulfilling the constitutional mandate of providing free education to all children and that it is not in need of any more Private Schools in its efforts to achieve the goal of providing free education, has taken a policy decision not to grant aid to private schools established on or after the academic year 1991-92. Inasmuch as the policy decisions are exclusively within the executive domain and in the light of the facts and figures furnished in the Annexures which we have referred to in the earlier paragraphs, we are satisfied that there is no merit in the claim made by the petitioners. Consequently, the writ appeals as well as writ petitions filed by the Educational Institutions and others fail and they are, accordingly, dismissed. No costs. Connected WP.M.Ps. are closed.” 7. In view of the legal position as stands today, the bar imposed on the private schools to claim aid from the Government stands valid. Further as it is seen in the counter affidavit filed by the fourth respondent, it is realising the legal position that the petitioners-Institution itself has given an undertaking that it would not claim grant in respect of Standards IX and X conducting in their school. Therefore, there is absolutely no illegality in the impugned order dated 13.03.2004 passed by the first respondent in W.P.No.23647 of 2004. 8. Further the impugned order only rejects the claim of the petitioners-school on the basis that the teaching grant cannot be released in respect of two posts which are not even sanctioned. In fact the impugned order further states that as and when the Government decides to increase the sanctioned strength, the claim of the petitioner would be considered on a preferential basis. Therefore the petitioner is not entitled for the relief claimed in these writ petitions. The writ petitions fail and the same are dismissed. However the dismissal of the writ petitions does not preclude the Government to consider the claim of the petition for the purpose of increasing the sanctioned strength of the teachers in the petitioners-school which may include the post of Tamil https://hcservices.ecourts.gov.in/hcservices/ Teacher as well as the Physical Education Teacher and such claim if any made by the petitioners-school has to be considered on merits and in accordance with law as early as possible. Consequently the connected MPs are closed. Srk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary, State Government of Tamil Nadu, Education Department, Secretariat, Fort St. George, Chepauk, Chennai – 600 009 2. The Director of School Education, (Secondary Education) College Road, Chennai – 600 006 3. The Chief Educational Officer, Dindugal District 4. The District Educational Officer, Palani, Dindugal District + 1 cc to Mr. A. Prabhakaran, Advocate SR No. 43963 + 1 cc to the Government Pleader, SR No.43812 W.P.Nos.23647 of 2004 and 1741 of 2006 & M.P.Nos.28645 of 2004 and 1996 of 2006 PA(CO) SR/19.8.2008 https://hcservices.ecourts.gov.in/hcservices/