IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09/11/2004 Coram The Honourable Mrs. Justice PRABHA SRIDEVAN Writ Petition No.14386 of 1996 G. Selvamariappan .. Petitioner -vs- 1. The State of Tamil Nadu, rep. by the Secretary to Government, Education, Science and Technology Department, Fort St. George, Chennai-9. 2. Director of Elementary Education, Madras-6. 3. District Elementary Educational Officer, Koilpatti, VOC District. 4. Secretary, Sengunthar Middle School, Naduvirpatti, Ettayapuram, VOC District. .. Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus calling for the records pertaining to the order passed by the Government in G.O. (2D) No.230, Education, Science and Technology Department dated 19.9.1995 and quash the same insofar as it denies the scale of pay at Rs.1 640 from the date of appointment viz. 24.4.1991 to 23.4.1996, and direct the respondents to sanction the scale of pay at Rs.1640 from the date of appointment, i.e. 24.4.1991 to 23.4.1996 and accord corresponding annual increments. !For Petitioner : Mr. S. Mani for Mr. S. Kamadevan ^For Respondents : Mr. Suresh Viswanath, Govt. Advocate (R-1 to R-4). :O R D E R The writ petitioner is a teacher. The post of the Headmaster of Middle School-B.T. Grade in the fourth respondent school fell vacant on 11.7.1990 because the incumbent had suddenly died. As per the Rules framed under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, this post has to be filled up from among the B.T. qualified persons working in the school. Normally, the vacancy ought to have been filled up by suitable and eligible qualified candidates from among the teachers working in the school. But, since there were no such suitable and eligible persons, the fourth respondent directly recruited the petitioner on 24.4.1991. In the case of appointment by direct recruitment, the School Committee is bound to obtain the prior permission of the District Educational Officer. When the papers were forwarded for approval, the Department raised objection since the petitioner did not have five years' experience as Secondary Grade Teacher. Since other schools also faced a similar problem, the Government was addressed and necessary exemption/relaxation was sought for. 2. The Government issued G.O. Ms. No.832, Education dated 15.9.1992, relaxing the condition of five years' teaching experience in respect of appointment of Aided Primary/Middle School Headmasters subject to the condition that the incumbents will get their pay in Secondary Grade scale till they attain five years of teaching experience, including their service in the post of Headmaster and thereafter, they will be eligible for the salary of Headmasters, provided they are otherwise fully qualified to the post of Headmaster as per the Rules and further that the appointments are made through the Employment Exchange, if the school is a non-minority one. Since the implementation of the said G.O. involved relaxation of the earlier G.O. Ms. No.520, Education dated 12.5.1989, the Government ordered that the service of the teachers as Headmasters should be regularized with effect from the date of issuance of the order. Thereafter, again, there was representation from the teachers that they should get their pay as Middle School Headmasters from the date of G.O. Ms. No.832. 3. In partial modification of the orders issued in G.O. Ms. No.832, the Government issued G.O. (2D) No.230, Education, Science and Technology (B1) Department dated 19.9.1995, approving the 16 cases of appointment of Middle School Headmasters, relaxing the condition of five years' teaching experience subject to the condition that they will draw their pay in the B.T. Scale till they attain five years of teaching experience, including their services in the post of Middle School Headmasters and thereafter, they will be eligible to draw the salary in the scale of Headmasters. 4. The present writ petition is filed seeking to quash this G.O., viz., G.O. (2D) No.230 dated 19.9.1995 which partially modified the earlier G.O. Ms. No.832 dated 15.9.1992, as stated above. 5. According to the learned counsel appearing on behalf of the petitioner, the earlier G.O., viz., G.O. Ms. No.832 entitled the petitioner to the salary of a Headmaster from the date of the said G.O., i.e., 15.9.1992, whereas by the subsequent G.O., viz., G.O. (2D) No.230 dated 19.9.1995, the Government has postponed his entitlement to the pay in the scale of a Headmaster to 24.4.1996 (i.e., five years after the date of his appointment, viz., 24.4.1991) and thereby, they have deprived the benefit already conferred on the petitioner by the earlier G.O. It appears that the petitioner filed W.P. No.16073 of 1995 seeking to direct the respondents to grant exemption from the date of appointment, instead of granting it from the date of G.O. Ms. No.832. But, that writ petition was withdrawn because G.O. (2D) No.230 dated 19.9.1995 came into effect. It was further submitted by the learned counsel for the petitioner that by G.O. Ms. No.97, School Education Department dated 5.7.2001, the five years' experience as Teacher was totally relaxed and therefore, the petitioner was entitled to the benefit. The learned counsel also referred to the orders passed by this Court in W.P. No.2725 of 1998 and W.P. No.11439 of 2001, where the petitioners had challenged the order of recovery of the amount paid to them in excess of what they were entitled to. The writ petitions were allowed since, "equity requires that the amount of salary payable for the said post should be paid and since the amount was paid, the question of recovering the same is not permissible, irrespective of the fact whether the petitioner was eligible for higher salary or not." 6. Learned Government Advocate, on the other hand, would submit that when the appointment of the petitioner itself is subject to the relaxation and conditional relaxation is ordered, then he cannot challenge the conditions imposed in the said order. 7. The appointment to the post of Headmaster is governed by Rule 15(4)(ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, which reads thus:- "4(i) ..... [(ii) Appointments to the various categories of teachers shall be made by the following methods : (i) Promotion from among the qualified teachers in that school. (ii) If no qualified and suitable candidate is available by method (i) above, - (a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers. (b) Appointment of teachers from any other school. (c) Direct recruitment. In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule.]" 8. The issue of five years' qualification came up for consideration in several decisions. Teachers challenged the rejection of approval for their appointments to the post of Headmasters citing the qualification fixed. This Court, in 1999 Writ L.R. 122 [Sundaram Aided Elementary School, Kodaikkadu vs. State of Tamil Nadu], refused to quash the impugned order and dismissed the writ petition. It was held as follows :- "The petitioner seeks issuance of a Writ of Certiorarified Mandamus or any other Writ or direction in the nature of a writ and quash the order O.Mu.No.2741/A6/98 dated 30.8.98 passed by the second respondent and to direct the respondents to approve the appointment of Head Master in the Petitioner School with effect from 16.2.1998 with all consequential benefits. 2. The post of Head Master in the Petitioner-School fell vacant from 1.2.1998. The Secondary Grade Teachers working in the school gave written letters stating that they are not willing to take work as the Head Master. Therefore, the petitioner applied to the authorities to fill up the post and the District Educational Officer also gave permission to the petitioner to appoint persons having five years experience. A request was also made to the District Employment Exchange to send candidates having 5 years experience and for that they also informed that no candidates are available to fill up the post of head master with 5 years experience. Therefore, Petitioner appointed one Neelamegam, B.Lit., DPT as Head Master of the School. The appointment has not been approved by the authorities stating that Neelamegam has not completed five years teaching experience and therefore his appointment cannot be approved. 3. It is the case of the petitioner that the impugned order is not legal in the sense that for the post of Head Master, five years experience is necessary in Primary Schools. But when graduate teacher is appointed no five years experience is required and that is the policy of the Government. 4. At the time of the admission, I directed the Government Pleader also to take notice. Government Pleader was also heard. After hearing the Government Pleader, I do not think that the petitioner is entitled to succeed. In a similar case, this Court has held that the experience prescribed by the School is not a matter which could be overlooked or given an exemption and only those candidates who were fully qualified at the time when vacancy arose could be considered for appointment. 5. It has been so held by Jayasimha Babu, J. in W.P. Nos.607 of 199 1 and 17963 and 18718 of 1992 (P. Singaram, etc. v. Government of Tamil Nadu). In that case, the learned Judge has held that neither the Act nor the Rules contain any provision conferring power on the Government or any of the authorities to relax any of the provisions of the Act or of the Rules. All regular appointees to the posts set out in the Rules must necessarily possess the prescribed qualifications. The learned Judge further said that it is not possible to take the view that the Government has unlimited power to grant relaxation to anyone who seeks relaxation from any of the requirements of the Act or Rule or the qualification prescribed in the Act and/or the Rules. The learned Judge further went on to say that in the absence of a specific Statutory Provision conferring the power to relax the qualification, such qualification cannot be relaxed. It is further said in that decision that even assuming that it was open to the Government to relax the rule, such power could only be exercised for promoting the objects of the Act and not to condemn the willful and deliberate flouting of the Statutory Rules. The object of prescribing the qualification is to ensure that only such persons who possess the requisite knowledge and experience are appointed to the post. The said legal position declared by the learned Judge was followed by P. Sathasivam, J. in W.P. Nos.11257 of 1995, 13099 of 1995, 15441 of 1995 and 3818 of 1997 - Order dated 30.8.1997 (J. Deivakadatcham v. The Joint Director of Elementary Education, DPI Compound, Madras - 6). The decision of P. Sathasivam, J. was taken on appeal in W.A. No.418 of 1998. But the writ appeal was dismissed by Judgment dated 26.3.1998. 6. I also had occasion to consider the above decisions in W.P. Nos.13090 of 1997 and 2406 of 1998 - Order dated 20.7.1998 (Tamil Nadu Anglo Indian Schools Teachers and Staff Association etc. v. The Government of Tamil Nadu). I have also followed those decisions and held that the qualifications fixed for the Head Master regarding experience is one of the essential qualification taking into consideration the responsibilities which he has to take in managing the institution. It is not liable to be relaxed. 7. On the basis of the above decisions and taking into consideration the qualifications fixed under the Act, I do not think that the impugned order is liable to be interfered with. The Respondents had rightly interpreted the Rules and came to the correct conclusion, that the appointment cannot be approved." Therefore, the petitioner's appointment as Headmaster by direct recruitment could not have been regularized unless the condition prescribing five years' teaching experience was relaxed. This Court has held that this qualification is an essential one and only a person possessing such qualification can be appointed. This Court has even frowned upon the relaxation of the rules relating to essential qualification. 9. The grievance of the petitioner that the subsequent G.O. withdrew a benefit that was granted to him in the earlier G.O. cannot be accepted. G.O. (2D) 230 dated 19.9.1995, which is impugned herein, extracted insofar as it relates to G.O. Ms. No.832 dated 15.9.1992 :- "Orders were issued in G.O. Ms. No.832, Education dated 15.9.92 approving the appointment of 29 cases of Headmasters in Aided Primary/ Middle Schools (16 Middle School Headmasters and 13 Elementary School Headmasters) in relaxation of the condition of 5 years teaching experience in respect of appointment as Aided Primary/Middle School Headmasters, subject to the conditions that the incumbents will get their pay in Secondary Grade scale of pay till they attain 5 years of teaching experience including the service in the post of Headmasters and thereafter they will be eligible for the Headmaster's salary and that the incumbents are otherwise fully qualified to the post of Headmasters as per the rules and further that the appointments have been made through Employment Exchange if the School is a non-minority one. Since the appointments involve relaxation of orders issued in G.O. Ms. No.5 20, Education dated 12.5.89, the services of the teachers as Headmasters should be regularized with effect from the date of issue of the order. Certain teachers of the above School have represented to the Government to allow them to get their pay in the Middle School Headmaster. The Government have examined their request carefully in consultation with the Director of Elementary Education." Therefore, even as per the earlier G.O., the condition prescribing five years' teaching experience was relaxed subject to the incumbents getting their pay in Secondary Grade scale till they attain five years of teaching experience. In partial modification of the above G.O., the following is what the Government did was as follows :- "In partial modification of the orders issued in G.O. Ms. No.832, Education dated 15.9.92, the Government approve the 16 cases of appointment of Middle School Headmasters mentioned in the Annexure from the date of their first appointment in relaxation of the condition of 5 years teaching experience in respect of appointment of Middle School Headmasters, subject to the conditions, that they will draw their pay in B.T. Scale of pay, i.e., Rs.1400-2600 till they attain 5 years of teaching experience including the service in the post of Middle School Headmasters and thereafter, they will be eligible to draw the Headmaster's scale of pay of Rs.1640-2900." Therefore, until they get the 5 years teaching experience, as indicated above after their appointment as Headmasters, they would have got Secondary Grade scale of pay, but now, they will get B.T. scale of pay. A B.T. Assistant is above a Secondary Grade Teacher. 10. Therefore, the petitioner's grievance is imaginary. His appointment itself was not proper, as seen from the judgment extracted above and it was regularized only by relaxation of the Rules. For such relaxation of the Rules, it was open to the Government to impose such conditions as they deemed fit. The decisions cited by the learned counsel for the petitioner cannot come to his aid. As seen from the paragraph extracted above, the learned Judges left the question of eligibility specifically open and the relief was granted only because amounts had been paid in excess of what the teachers were entitled to as per the conditional orders of relaxation, and directions were given not to recover the same. The case on hand is different, where the petitioner seeks to quash the G.O. 11. G.O. Ms. No.97 also cannot help the petitioner since it appears to be prospective, as the words ",d;tUk; fhy';fspy;" are used. 12. In these circumstances, the prayer of the writ petitioner cannot be granted. The writ petition is accordingly dismissed. However, there will be no order as to costs. Consequently, W.M.P. No.19675 of 1996 is closed. ab Index : Yes Website : Yes To 1. The Secretary to Government, Education, Science and Technology Department, Govt. of Tamil Nadu, Fort St. George, Chennai-9. 2. Director of Elementary Education, Madras-6. 3. District Elementary Educational Officer, Koilpatti, VOC District. 