IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-3-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.38054 and 38055 of 2003 W.P.M.P.Nos.46201, 46203 of 2003 P.S.James Arulraj ... Petitioner in W.P.No.38054/2003 BF.Asuntha Auxilia ... Petitioner in W.P.No.38055/2003 Vs. 1. The Government of Tamil Nadu, rep.by its Secretary, School Education Department, Fort St. George, Chennai - 600 009. 2. The Director of School Education, DPI Campus, College Road, Chennai - 600 006. 3. The Chief Educational Officer, Saidapet, Chennai - 15. 4. The District Educational Officer (North) Egmore, Chennai - 8. 5. The Correspondent, Annai Vailankanni High School, Sastri Nagar, Vyasarpady, Chennai - 600 039. ... RR-1 to 5 in both writ petitions 6. K. Gokila Veni ... R-6 in W.P.No.38054 of 2003 Hemalatha ... R-6 in W.P.No.38055 of 2003 Prayer: These writ petitions are filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the respondents https://hcservices.ecourts.gov.in/hcservices/ ending with 15.12.2003 in Na.Ka.No.8861/Aa3/2003, on the file of the third respondent and quash the same directing the respondents 1 to 4 to accord approval to the appointment of the petitioners w.e.f. 4.6.1997 and 17.6.1997 respectively as B.Ed. Teachers in the fifth respondent School with all monetary and other attendant benefits. For Petitioners : Mr.Fr.A.Xavier Arulraj For Respondents 1to4: Mrs.Dakshayani Reddy, Government Advocate For 5th Respondent : Mr.V.R.Appaswamee For 6th Respondent : No appearance COMMON ORDER By consent of both parties, the writ petitions are taken up for final disposal. 2. Prayer in both the writ petitions is to quash the proceedings of the third respondent dated 15.12.2003 and direct the respondents 1 to 4 to accord approval to the appointment of the petitioners w.e.f. 4.6.1997 and 17.6.1997 respectively as B.Ed. Teachers in the fifth respondent School with all monetary and other attendant benefits. 3. The learned counsel for the petitioners at the time of arguments submitted that the impugned order of deployment has not been implemented and the persons ordered to be deployed in the 5th respondent School, who are 6th respondent in these writ petitions, were given posting in other schools during pendency of the writ petitions and the petitioners will be satisfied if approval of the appointment of the petitioners made by the 5th respondent management is approved with effect from 1.6.2000. The said statement of the learned counsel for the petitioners is recorded. 4. The learned counsel appearing for the 5th respondent School submitted that there is no need to go into the merits of the deployment order as the two teachers ordered to be deployed in the 5th respondent school were given postings in other schools and the only issue to be decided in these writ petitions is as to whether the 5th respondent management is entitled to get sanction of additional posts and the consequential approval of the petitioners as teachers appointed in anticipation of sanction of posts from 1.6.2000. The said submission of the learned counsel is also recorded. https://hcservices.ecourts.gov.in/hcservices/ 5. The petitioner in W.P.No.38054 of 2003 was appointed as graduate Teacher in the 5th respondent School on 4.6.1997 and he is handling history subject for standard 8 and English subject for standards 9 and 10 and the petitioner in W.P.No.38055 of 2003 was appointed as graduate teacher in the 5th respondent School on 17.6.1997 and she is also handling 29 periods per week. According to the petitioners, they are fully qualified for being appointed in the 5th respondent School as B.T. Assistants. 6. The 5th respondent school is a minority school, granted recognition and aid by the Government of Tamil Nadu. The contention of the petitioners are that the eligibility to get sanction of posts in aided schools is governed under G.O.Ms.No.525, School Education Department, dated 29.11.1997 and for the 5th respondent School, the following teaching and non-teaching posts were sanctioned prior to G.O.Ms.No.525, dated 29.12.1997. Headmaster ... 1 B.T. Assistants ... 2 Tamil Pandit ... 1 Secondary Grade Teachers ... 3 Physical Education Teacher ... 1 Junior Assistant ... 1 Office Assistant ... 1 -- Total ... 10 -- The students' strength of the school according to the petitioner and 5th respondent management from 1.6.2000 was 662 and the total sections available in the 5th respondent school are 13. According to the petitioners and the 5th respondent management, by proceeding dated 5.1.2001, the department sanctioned three additional secondary Grade Teacher posts, however no additional B.T. Assistant post was sanctioned, even though 5th respondent school is entitled to have five B.T. Assistant posts as per the norms issued by the Government. Petitioners were appointed to handle classes in high school sections. The posts for the subjects English, Mathematics and Science in the middle sections were also upgraded as middle graduate teacher posts by the Government through G.O.Ms.NO.79 Education, dated 14.6.2002 followed with G.O.Ms.NO.100 Education dated 27.6.2003. According to the petitioners, even though, the 5th respondent School is eligible to get five B.T Assistant Posts in toto as stated supra, it was sanctioned with only 2 B.T. Assistant posts. Two B.T. Assistants, namely 6th respondent in these writ petitions were deployed from other schools to the 5th respondent school even though the petitioners are working in the school from June, 1997, in anticipation of sanction of posts and approval. The said orders of deployment of the respective 6th respondent in these writ petitions having affected the petitioners' right to continue as teachers and get approval after the sanction https://hcservices.ecourts.gov.in/hcservices/ of posts, petitioners have individually challenged the orders of deployment and obtained interim orders in their favour. 7. The respective 6th respondent in these writ petitions were subsequently posted in other needy schools and therefore the deployment orders have become infructuous and therefore the petitioners are continuously working in their respective posts in the 5th respondent school all these years and therefore the contention of the petitioners are that the respondents department may be directed to sanction two B.T. Assistant posts, at least from 1.6.2000 with consequential direction, to approve the appointment of the petitioners from 1.6.2000. 8. The learned counsel for the petitioners submits that even though G.O.Ms.No.525 Education, dated 29.11.1997 came into force from 1.6.1998, petitioners are restricting the prayer to sanction of post and consequential approval of their appointments from 1.6.2000 in view of the undisputed availability of strength from 1.6.2000, which are verified and countersigned by the third respondent. 9. The strength of the school as on 1.6.2000 was verified and countersigned by the third respondent according to which the school is having total strength of 691 with 17 divisions/sections and taking note of the same, the third respondent fixed the staff strength as 4 B.T. Assistants and ordered deployment of two teachers, who were found excess in other schools, to the 5th respondent school. In the staff fixation order issued for the year 2001-2002 on 8.12.2001 by the 4th respondent, it is found that though the school is eligible to have four B.T. Assistants, it was sanctioned with only two posts and additional requirement was noted as two B.T. Assistants. The said fixation order is found at page No.15 of the typed set of papers. For the year 2002-2003 also the 4th respondent fixed the staff strength on 1.10.2003 wherein it is stated that for standards 9 and 10, the school is entitled to have four B.T. Assistants and sanctioned posts are only two and two more B.T. Assistant posts are required to be sanctioned. 10. Relying on the said staff fixation order passed by the 4th respondent, after assessment of the strength of the 5th respondent School, the learned counsel for the petitioners submitted that the eligibility to have two additional posts of B.T. Assistants, at least from 1.6.2000 is not in dispute and the respondents are not justified in deploying 6th respondents to the 5th respondent School. The learned counsel also submitted that G.O.Ms.NO.525 dated 29.11.1997 was issued with effect from 1.6.1998 for the sole object of equally distributing posts to aided schools and there cannot be any discrimination in granting posts. The learned counsel also submitted that when the said Government Order https://hcservices.ecourts.gov.in/hcservices/ was challenged before this Court, the Government filed a counter affidavit stating that wherever the schools are in need of additional posts, the same will be sanctioned and wherever the posts are found surplus the same will be deployed or if deployment is not possible, the teachers will be allowed to work till their retirement in the said school and thus the respondents are not honouring the commitment made before this Court by sanctioning additional posts to the 5th respondent school in spite of eligibility to sanction two B.T. Assistant posts from 1.6.2000. 11. The learned Government Advocate appearing for the respondents 1 to 4 on the other hand submitted that even though G.O.Ms.NO.525, dated 29.11.1997 was issued as norms for fixing the staff strength for the aided schools from 1.6.1998, petitioners cannot claim sanction of posts as a matter of right and as and when the Government sanctions additional posts to the needy schools after assessing the financial viability of the Government, claim of the 5th respondent school will also be considered and only after sanction of posts, petitioners can claim approval and salary from the date of sanction of posts. 12. I have considered the rival submissions made by the learned counsel for the petitioners as well as the respondents. 13. The point in issue is whether the petitioners have got any right to seek sanction of posts from 1.6.2000 and whether the Government is bound to sanction posts to the 5th respondent school from 1.6.2000 and the petitioners are entitled to get consequential approval on their appointment as B.T. Assistants in the 5th respondent School. 14. It is not in dispute that 5th respondent school is a fully aided minority school having standards upto 10th standard. It is also not in dispute that the school is a non-fee levying school, imparting free education. It is also not in dispute that students upto 14 years of age are to be given free and compulsory education as per fundamental right guaranteed to them under Article 21 of the Constitution of India. 15. Similar issue as to whether a person appointed in an aided minority school is entitled to claim sanction of post with consequential approval, was considered by me in the decision reported in (2006) 3 MLJ 242 (C.Manonmony v. State of Tamil Nadu) and in paragraphs 11 to 17, I have held thus, "11. The validity of G.O.Ms.No.525 dated 29.12.1997 was challenged before this Court. The Government justified the issuance of Government Order and stated that only for equal distribution of posts to all aided schools the https://hcservices.ecourts.gov.in/hcservices/ said Government Order was issued and an assurance was also given in the counter affidavit that whenever a school is in need of additional post as per the students strength, necessary steps will be taken to sanction additional post. The said portion of the counter affidavit was extracted in the judgment reported in 1999 (1) MLJ 635 (North Arcot Ambedkar and Sambuvarayar District recognised Private Aided Primary and Middle Schools Managers and Teacher Managers Association v. The State of Tamil Nadu), which reads thus, "... In fact, there is an assurance in the counter itself (in para 23) that when the school is found eligible for additional post as per the revised norms, necessary steps will be taken to sanction additional posts." From the above stand it is made clear by the Government before this Court that whenever School is in need of additional sanction of post, it will be sanctioned, if the norms issued in G.O.Ms.No.525 dated 29.12.1997 is satisfied. 12. G.O.Ms.No.525 dated 29.12.1997 was given effect from 1.6.1998. Hence the 5th respondent School is eligible to be sanctioned one additional post of B.T. Assistant at least from 1.6.1998 and on such sanction of post by the first respondent to the 5th respondent School, petitioner is entitled to get B.T Assistant salary, at least from 1.6.1998. In the impugned order, nowhere it is stated that the 5th respondent School is not entitled to get sanction of additional B.T. Assistant post. The impugned order only states that as and when need arises, request of the 5th respondent School will be considered. 13. The submission of the learned counsel for the petitioner that want of finance cannot be a ground to deny sanction of the post to an Aided School is also well founded. (a) A Division Bench of this Court in the decision reported in 1988 WLR 130 (Church of South India v. The Government of Tamil Nadu) held that want of finance is not a ground to deny teaching post to an aided school. (b) Similar issue arose before the Honourable Supreme Court in the decision https://hcservices.ecourts.gov.in/hcservices/ reported in AIR 1996 SC 1 (State of Maharashtra v. Manubhai Pragaji Vashi). In the said judgment, non-extension of grant in aid to a private law college was considered by the Honourable Supreme Court. The Honourable Supreme Court held that a duty is cast on the State to extend the grant in aid and the same cannot be whittled down either by pleading paucity of funds or otherwise and ultimately directed the Government to extend the grant in aid scheme to all Government Recognised Private Law Colleges. (c) In AIR 2000 SC 634 (Chanigarh Administration v. Rajni Vali) in paragraph 6 the Honourable Supreme Court held as follows: "... imparting primary and secondary education to the students is the bounden duty of the state administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the Society depends. In line with this principle, the State has enacted Statute and framed Rules and Regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions." In paragraph 10, the Supreme Court considered the contention of want of fund in the following manner, "Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if https://hcservices.ecourts.gov.in/hcservices/ the claim of the respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail. The contention raised by the appellants in this regard is rejected. ..." (d) A constitution Bench of the Honourable Supreme Court in the decision reported in AIR 1992 SC 1630 (St.Stephen's College v. University of Delhi) considered the issue of aid to minority institutions. In paragraph 89 the Supreme Court held thus, "The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said that there is also restraint on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in- aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. This was also the view expressed by Das, C.J., in Re: Kerala Education Bill case. The minorities cannot, therefore, be asked to maintain educational institutions on their own." (e) A Division Bench of this Court in a judgment reported in 1997 WLR 619 (State of Tamil Nadu and 4 others v. Melapalayam Muslim Magalir Kalvi Sangam)(DB) considered the plea of the Government as to the non-availability of funds and held that the Government having granted temporary recognition of approval of standards 6 to 8 with aid, the same cannot be https://hcservices.ecourts.gov.in/hcservices/ denied on the plea of want of funds. In paragraph 6 the Court held thus, "... The citizens of the country have a fundamental right to education, which right flows from Article 21. This right is, however, not an absolute right. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to the limits of economic capacity and development of the State. ..." In fact, the Division Bench followed the Judgment of the Supreme Court reported in AIR 1958 SC 956 (In re The Kerala Education Bill, 1957) wherein it is held that the minorities cannot be asked to maintain the educational institutions of their own funds. (f) The said right to education under Article 21 was considered by the Supreme court in Unnikrishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. The said proposition of the law was also approved by the Constitutional Bench decision in TMA Pai Foundation and others V. State of Karnataka, (2002) 8 SCC 481. (g) By Judgment dated 23.8.1990 in W.A.No.24 of 1990, a Division Bench of this Court held that once recognition is granted with aid to a private School, the sanction of posts shall be made automatically if the norms for the sanction of post is satisfied, otherwise the grant of recognition will be rendered meaningless. The Division Bench upheld the order of the learned single Judge made in W.P.No.4570 of 1987 dated 27.9.1989 (T.Sekarapillai and 5 others v. The State of Tamil Nadu and 2 others) with slight modification. In the decision reported in 1999 WLR 555 (The C.S.I. Kanyakumari Diocese v. Government of Tamil Nadu and others) another Division Bench of this Court while dealing with the request of a minority management to sanction additional posts, directed to sanction posts based on student strength as per G.O.Ms.No.250 dated 29.2.1964 from 18.2.1991 within three months. S.L.P.(Civil) No.19141 and 19142 of 1998 filed against the order of https://hcservices.ecourts.gov.in/hcservices/ the Division Bench was dismissed by the Honourable Supreme Court by order dated 16.12.1999. The respondents 1 to 4 herein implemented the said order by sanctioning additional posts retrospectively to C.S.I. Primary School Venkanji, Kanyakumari District. (h) Insofar as the aided schools are concerned, the Hon'ble Mr.Justice K.Venkataswamy (as he then was) in W.P.No.15966 of 1990 dated 21.12.1993 allowed the writ petition filed by the management and directed sanction of one Botany P.G. Assistant post. Earlier, a Division Bench of this Court in W.A.No.28 of 1990 by Judgment dated 10.1.1990 (Dr.A.S.Anand,J. (as he then was) & Nainar Sundaram,J.) took a similar view following the decision reported in 1988 WLR 130 (cited supra). The same view was taken by this Court in the following unreported decisions insofar as the sanction of posts to aided colleges are concerned. (i) W.P.No.2093 of 1994 dated 10.4.1995 (R.Jayasimha Babu, J.) (ii) W.P.No.1048 of 1994 dated 17.4.1996 (M.Srinivasan, J, Acting Chief Justice (as he then was)). The said order was confirmed by the Division Bench in W.A.No.682 of 1996 dated 26.7.1996 (K.A.Swamy, J., Chief Justice & AR.Lakshman, J. (as he then was)). (iii) W.P.No.6758 of 1993 dated 13.9.1996 (Shivraj patil, J. (as he then was)). (iv) W.P.No.5602 of 1996 dated 20.8.1997 (P.Sathasivam,J.) 14. The right to get aid by minority managements which were forced to give an undertaking while getting recognition that the schools will not claim aid forever was also considered by this Court in series of decisions. A learned single Judge of this court in W.P.No.6592 of 1993 (Arokia Annai Middle School, Palayam, Kanyakumari District and another v. The State of Tamil Nadu and two others) dated 11.10.1993 (K.S.Bakthavatchalam, J.) held that even if the management has given an undertaking that it will not claim aid from the Government that undertaking has no value and a direction was issued to sanction post to the said school. The respondents filed https://hcservices.ecourts.gov.in/hcservices/ W.A.No.1040 of 1997 against the said order of the learned single Judge and the same was dismissed by a Division Bench of this Court on 11.8.1997. The SLP filed against the said decision of the Division Bench was also dismissed on 17.8.1998 and finally the Government sanctioned posts to the said School. 15. The said judgment of the Division Bench was followed by another single Judge in the decision in W.P.No.5831 of 1997 dated 11.6.1998 (K.Sampath, J.). Writ Appeal filed against the said order in W.A.No.228 of 1999 was also dismissed by this Court on 29.1.2005. 16. Here the 5th respondent school is granted recognition with aid. Thus the matter in issue is already settled with regard to the plea of want of finance by the Government, pursuant to which, post cannot be denied to the recognised schools and more particularly to the aided schools. As rightly contended by the learned counsel for the petitioner a solemn undertaking was given before this Court by the first respondent to the effect that as and when the School is in need of additional post it will be sanctioned and the said undertaking is recorded in the judgment reported in 1999 (1) MLJ 635 (cited supra). In view of the settled position of the law with regard to the sanction of post to the aided schools as and when the school is eligible to get additional post, the respondents 1 to 4 are not justified in not sanctioning one additional B.T. Assistant post to the 5th respondent school, at least from 1.6.1998. 17. G.O.Ms.No.525 dated 29.12.1997 having came into force from 1.6.1998, the first respondent is directed to sanction one additional B.T. Assistant post to the 5th respondent school in favour of the petitioner from 1.6.1998 and the 4th respondent is directed to sanction salary of B.T. Assistant to the petitioner 1.6.1998 to 31.5.2002. Since the petitioner has not worked from 1.6.2002, she is not entitled to get salary from 1.6.2002 to 31.5.2006. The 5th respondent is directed to restore the services of the petitioner as B.T. https://hcservices.ecourts.gov.in/hcservices/ Assistant from the beginning of the academic year 2006-2007. It is made clear that the petitioner shall not be entitled to claim any salary from the management funds prior to 1.6.1998 as she was appointed in an unsanctioned post." 16. The very same Government order was considered by a Full Bench of this Court in the decision reported in 2006 (5) CTC 385 (Director of Elementary Education v. S.Vijila). In the said case, the contention raised by the Government that due to want of finance, post could not be given to each standards of the aided schools was considered and the said contention was rejected. 17. Thus, it is well settled as of now that want of finance cannot be a ground to deny posts to aided schools. 18. In the light of the solemn assurance given by the Government before this Court while challenging the validity of G.O.Ms.No.525 dated 29.11.1997, and in the light of the decision of mine following several judgments of the Supreme Court and of this Court, as well as the Full Bench decision above referred, I am of the view that the 5th respondent School is entitled to get sanction of two B.T.Assistant posts from 1.6.2000 and the petitioners are entitled to get their appointment as B.T. Assistant approved with effect from 1.6.2000 with salary and other benefits. 19. The first respondent is directed to sanction two B.T. Assistant posts in favour of the 5th respondent School with effect from 1.6.2000 within a period of six weeks from the date of receipt of