IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.9.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.7814 of 2009 1. A.Mary Angelis 2. P.S.Sheela .. Petitioners Vs. 1. The Government of Tamilnadu rep. by its Secretary to Government School Education Department Fort St.George, Chennai – 9. 2. The Director of School Education College Road, Chennai – 6. 3. St.Joseph's Convent Higher Secondary School rep. by its Correspondent Nagercoil, Kanyakumari District. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Declaration to declare the non-approval of the appointment of the petitioners made in sanctioned and permanent posts as Secondary Grade Teachers with effect from 2.6.1997 and 17.2.1998 respectively on a par with others of similar nature of appointments made prior to 1995 and after 2003 pursuant to G.O.Ms.No.100, School Education Department, dated 27.6.2003 is illegal, arbitrary and in violation of the petitioners fundamental rights as guaranteed under Articles 14, 15 and 16 of the Constitution of India and consequently to direct respondents 1 and 2 to approve the appointment of the petitioners as Secondary Grade Teachers with effect from 2.6.1997 and 17.2.1998 respectively with monetary and service benefits. For Petitioners : Mr.A.Amalraj For Respondents : Ms.N.Roofus Abraham Government Advocate (Edn.) for respondents 1 and 2 Dr.Fr.A.Xavier Arulraj for 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER The two petitioners are employed by the third respondent/School at Nagercoil. Admittedly, the third respondent/School is a minority school having protection under Article 30(1) of the Constitution of India. The two petitioners were appointed as Secondary Grade Teachers in the third respondent/School by order dated 2.6.2003. The orders, which are enclosed in pages 13 and 15 of the typed set filed by the petitioners, show that their appointment was only against the post of Secondary Grade Teacher and that it was from 2.6.2003. In the order itself it is indicated that their appointment is subject to the approval by the Department of Education and also subject to the economic strength of students in the school. 2. The petitioners, having accepted the said appointment, also gave undertaking to the school management on 13.6.2003, which is produced by the third respondent/School in the form of an additional typed set and found at pages 13 and 14, agreeing that though they were qualified as Graduate Teachers, they were appointed as Secondary Grade Teachers and there was a ban by the State Government from appointing such Graduate Teachers against Secondary Graduate Teachers and they were not paid salary. Subsequently, taking advantage of the order passed by a Division Bench of this Court in Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School v. The State of Tamil Nadu, 2002 WLR 173, the petitioners underwent Child Psychology training for one month and got themselves qualified to be appointed as Secondary Grade Teachers and therefore, the third respondent/School also appointed them against the post of Secondary Grade Teacher. The two teachers, in their undertaking, also stated that they are agreeing to work as Secondary Grade Teachers and claim salary only for the said post and they will not claim any salary as Graduate Teachers and they also said that they will not claim any advance increments for having any higher qualification. 3. Notwithstanding the same, the petitioners have come forward to file the present writ petition seeking a direction to the respondents to sanction permanent posts of Secondary Grade Teachers with effect from 2.6.1997 and 17.2.1998 respectively on a par with the appointments made before 1995 and after 2003 pursuant to the order of the State Government in G.O.Ms.No.100, School Education Department, dated 27.6.2003 and to declare the non approval of their appointment as violative of the fundamental rights guaranteed under Articles 14, 15 and 16 of the Constitution of India and for a consequential direction to respondents 1 and 2 to approve their appointment as Secondary Grade Teachers with effect from 2.6.1997 and 17.2.1998 respectively with all consequential monetary benefits. https://hcservices.ecourts.gov.in/hcservices/ 4. The writ petition was admitted on 27.4.2009. On notice from this Court, the third respondent/School has filed a counter affidavit dated 19.9.2011 together with supporting typed set of papers. 5. It is seen from the records that the petitioners though were qualified Graduate Teachers were not eligible to be appointed as Secondary Grade Teachers. 6. The Division Bench of this Court in Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School case, supra, held that Graduate Teachers are not eligible to be appointed as Secondary Grade Teachers and the issue of violation of the fundamental rights cannot be raised by them for their non appointment, but as a one time measure, on the basis of the undertaking given by the then Advocate General, held that if such of the teachers who are qualified to be Graduate Teachers are given training in Child Psychology for one month, their post can be regularised and they will be considered as having minimum qualification for holding the post of Secondary Grade Teachers. 7. In the present case, after the order passed by the Division Bench in Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School, supra, the petitioners have completed one month Child Psychology training and informed the management that they have completed the Child Psychology training by communication dated 2.6.2003. It is pursuant to the completion of the Child Psychology training, they were given formal appointment orders on 2.6.2003, which has also made clear that it was subject to the approval of the Department of Education. Having obtained such a posting, the petitioners cannot institute a writ petition seeking retrospective regularisation of their posts from the date of their initial entry into the unapproved post. 8. The inspiration for the petitioners is based upon the subsequent government order in G.O.Ms.No.100, School Education Department, dated 27.6.2003. In that order, the State Government revised its policy and on finding that the Middle School sections need higher qualified teachers to teach English, Maths and Science, permitted the Middle School sections to be handled by Graduate Teachers, but at the same time made it clear that no extra posts will be sanctioned for those sections and the existing Secondary Grade Teachers will have to be converted for the purpose of appointing Graduate Teachers. 9. It is not clear as to how the revised policy of the State Government can benefit the petitioners, because they were appointed pursuant to the one time amnesty given by the Division Bench vide judgment in Secretary and Correspondent Uswathun Hasana Oriental https://hcservices.ecourts.gov.in/hcservices/ (Arabic) Girls Higher Secondary School case, supra. Merely because the State Government has changed its policy and permitted filling up of those sections with Graduate Teachers, the petitioners will not get automatic retrospective regularisation. On the contrary, the third respondent/School has stated that they are in the process of getting sanction for appointment of Graduate Teachers for teaching standards VI to VIII and as and when such posts are sanctioned, the petitioners will be accommodated against the post of Graduate Teachers and will be paid due salary. 10. It must be noted that the present claim of the petitioners cannot be countenanced for more than one reason. The third respondent/school is a grant-in-aid school and subject to the grant given by the State Government. On the basis of the conditions imposed by the Government under Rule 15(1) of the Tamil Nadu Recognised Private School (Regulation) Rules, 1974, it has been made clear that a school shall not exceed the number of posts sanctioned by the Director of School Education from time to time with reference to the academic requirements, teacher-pupil ratio and overall financial considerations. Therefore, it is ultimately for the State Government to sanction posts which are necessary for running the private aided school. In the absence of the State Government sanctioning such posts, the petitioners cannot by filing a writ petition improve their status. 11. The relationship between a teacher and a private aided school is that of a teacher and the school management and not that of the Government. The position of law in this regard has been clarified by the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 and in paragraph [10] it has been held as follows: "10. Having heard the counsel for both parties, we are left with an impression that the appellants are really trying to sidetrack the issue and needlessly delaying the legitimate payments due to the respondents. The question whether the State is liable to recompense the appellants in respect of the amount payable to the respondents was not considered by the High Court and indeed could not have been examined since the State was not a party to the proceedings. However, by the persuasive powers of the counsel in this Court, the State has been impleaded as a party in these appeals. Perhaps, this Court wanted to find out the reaction of the State on the appellants' assertion for reimbursement. We heard counsel for the State. He disputes the appellants' claim. In fact, he challenges the claim on a number of grounds. He says that the State is under no obligation to pay the appellants as against the sum due to the respondents. We do not think that we need rule today on this controversy. It is https://hcservices.ecourts.gov.in/hcservices/ indeed wholly outside the scope of these appeals. We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention." In the light of the above, the writ petition is misconceived and therefore, the same is dismissed. No costs. sasi Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To: 1. The Secretary to Government School Education Department Government of Tamilnadu Fort St.George, Chennai – 9. 2. The Director of School Education College Road, Chennai – 6. + 1 cc to Mr. A. Amalraj, Advocate SR No.58528 + 1 cc to Fr. A. Xavier Arulraj, Advocate SR No.58564 + 1 cc to Government Pleader, SR No.58564 W.P.No.7814 of 2009 RK(CO) SR/7.10.2011 https://hcservices.ecourts.gov.in/hcservices/