IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.26319 of 2009 Sengunthar Middle School rep by its Correspondent, A.Palanisamy No.20/42-43,Vadakasiamman Koil Street, Sankarankoil-627 756 Tirunelveli District. .. Petitioner Vs. 1.The State of Tamil Nadu, rep by its Secretary to Government, Education Department Secretariat, Chennai-6. 2.The Director of Elementary Education, College Road, Chennai-6. 3.The District Educational Officer, Kovilpatti, Tirunelveli District. 4.The Assistant Elementary Education Officer, Sankarankoil-627 756 Tirunelveli District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records connected with the impugned order passed by the second respondent in Na.Ka.No.19742/L1/2008, dated 17.6.2009 and quash the same and to direct the second respondent to sanction Middle School Graduate Headmaster-1 post, Secondary Grade Teachers -3 posts to the petitioner school. For Petitioner : Mr.S.N.Ravichandran For Respondents : Mr.I.Arockiasamy, GA(Education) - - - - ORDER
The petitioner is the management of a middle school at Sankarankoil. In this writ petition, they have chosen to challenge an order dated 17.06.2009 passed by the second respondent Director of Elementary Education, Chennai. By the impugned order, the petitioner school management was informed that their request for the release of grant towards upgraded middle school section cannot be considered in the light of the State Government's decision not to give any grant for any new school or any new section opened in the existing school. The said policy decision has been incorporated in terms of Section 14-A of the Tamil Nadu Recognized Private Schools (Regulations) Act, 1973. The petitioner challenged the same in the present writ petition.
2.The writ petition was admitted on 25.6.2010. Pending the writ petition, a counter affidavit has been filed by the fourth respondent, dated 8.7.2010. The counsel for the petitioner apart from making oral submissions has also filed a written argument.
3.The contention raised was that the petitioner school was originally a primary school. During the year 1988, it was upgraded as a middle school. During the year 1996, by G.O.(1D)No.142, Education, Science and Technology Department, dated 31.10.1996, one secondary grade post was sanctioned to the school. Subsequently, in the year 2000, by an another proceedings, dated 26.12.2000 issued by the Director, an another secondary grade teacher post was sanctioned. The school was not permitted to fill up the post. Though the District Elementary Education Officer, Tirunelveli sought for an advise from the second respondent that the school has been upgraded as the middle school on 1.6.1988 and whether they can fill up the second post, there was no response from the office of the second respondent. But by an order dated 15.6.2004, the second respondent took back the post sanctioned as the post was not filled up for more than three years. It was only due to the delay in permitting the school management to fill up the post, they could not get the post.
4.The management filed W.P.No.40283 of 2005 for sanction of the additional post of middle school headmaster and three posts of secondary grade teacher. The petitioner also filed an another writ petition being W.P.(MD)No.10078 of 2007 before the Madurai Bench, challenging the order dated 15.6.2004 on resumpting the post already sanctioned. The order passed by the Government was set aside on the ground that the school was upgraded even before the amendment made under Section 14-A, but the order has not been complied with. W.P.No.40283 of 2005 was also ordered by this court on 11.12.2007 to consider the representation of the school. Subsequently as the order was not obeyed, a contempt notice was sent and a Contempt Petition No.354 of 2009 was filed. But, it is to circumvent the contempt proceedings, the impugned order dated 17.6.2009 was issued by holding that the condition for upgradation of the school even during the year 1988-89 was on the ground that the Government will not be mulct with the liability to pay aid to the school.
5.In this context, the counsel for the petitioner placed reliance upon a judgment of this court in C.Manonmony Vs. State of Tamil Nadu and others reported in (2006) 3 MLJ 242 for contending that even if the management has given an undertaking not to claim for any aid subsequent to the upgradation, that undertaking is not binding. In paragraph 14, it was observed as follows:
"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 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."
It is not clear as to how the said judgment will have any relevance when the school in that case invoked their constitutional right under Section 30(1) of the Constitution and that it was admittedly a minority school.
6.The petitioner thereafter placed reliance upon a judgment of the Full Bench of this court in Director of Elementary Education, Chennai and others Vs. S.Vigila reported in 2006 (5) CTC 385 for contending that the post will have to be sanctioned in the light of the number of students in the school on the basis of students' strength, i.e., 1 teacher for 40 students. In that case, the Full Bench dealt with the interpretation of the G.O.Ms.No.525, School Education, dated 29.12.1997. It must be noted that the said judgment did not deal with any upgradation of the school or sanction of the additional post, but even in respect of existing aided school, what should be the criteria for sanction of teaching post. In that judgment in paragraph 23, the directions of the full bench were set out and in paragraph 23.5, it was directed as follows:
"23(5)It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the Constitution."
7.The counsel also subsequently referred to an unreported judgment of this court in Om Saravanabhavan Thirumurugan Middle School Vs. The State of Tamil Nadu and others in W.P.(MD)No.5881 of 2006, dated 18.09.2006. In that case, in paragraph 7, this court held as follows:
"7.The respondents are not justified in refusing grant-in-aid on the ground that the petitioner management gave an undertaking while submitting application for recognition of standards 6 to 8 that it will not claim aid from the Government. First of all, the said undertaking is not required under the recognition rules."
8.But, nevertheless though in that case, it was a non minority institution, the principles laid down by the earlier judgment in respect of minority school was sought to be applied without noticing the distinction that non minority school did not have protection under Article 30(1) of the Constitution. It is claimed that the said judgment was confirmed in an appeal in W.A.(MD)No.8 of 2007, dated 02.03.2007.
9.Subsequently, the petitioner placed reliance upon a judgment of a division bench of this court in G.Sahadevan Nair Vs. Government of Tamil Nadu and others reported in (2008) 4 MLJ 289. In that case, the division bench dealt with the case of the minority school management and in paragraphs 27 and 28, it was observed as follows:
"27. ........ For other institutions, the provisions for obtaining prior permission has been incorporated to ensure that a institution is established only if there is need for such an institution. In the case of minority institutions, such need is presumed to exist in view of the right conferred under Article 30(1). Having provided that there is no requirement for obtaining prior permission to establish such an institution to cater to the need of the religious or linguistic minority, it would be paradoxical to deny any such institution the benefit of the grant-in-aid merely on the footing that no prior permission has been obtained.
28.It was also submitted that in view of the provisions contained in Section 14(1) of the Act, no school, whether minority or non-minority is entitled to claim grant-in-aid merely on account of the fact that such institution has been subsequently recognised or affiliated.
This provision merely emphasise the well accepted concept that the institutions whether minority or otherwise can seek grant-in-aid only if there is specific provision to that effect. The question in the present case is not that there is no provision relating to grant aid, but the question is inspite of the existence of provision relating to grant-in-aid, whether the denial of such grant-in-aid to the minority institutions is justified. It is not the claim of the institution that merely because it has been recognised it is entitled to receive aid. The claim of the institution is to the effect that since there is provision for grant-in-aid, the concerned institution should not be discriminated against in the matter of sanction of such grant-in-aid."
10.The counsel subsequently referred to an another judgment of this court in P.S.James Arulraj and another Vs. Government of Tamil Nadu and others reported in 2008 Writ L.R. 539. In that judgment, the learned judge after following the full bench judgment, in paragraphs 17 and 18 it was observed as follows:
"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."
11.That decision has no relevance to the case on hand as it was relating to sanction of post. But the constitutional vires of Section 14-A was not gone into in that writ petition and simply on the basis of students teachers' ratio, a direction was given to sanction the additional post.
12.The learned counsel for the petitioner further referred to an another division bench judgment of this court in The District Elementary Educational Officer Vs. S.Rachel Jeyapaulin and another reported in CDJ 2008 MHC 2427 and once again the question regarding vires of Section 14A came to be considered.
13.The counsel for the petitioner further relied upon an another judgment of this court in Francis Edward Vs. Government of Tamil Nadu reported in (2009) 7 MLJ 527, wherein a direction was given to grant approval for appointment of physical education teacher. First of all, that case related to the minority school. In the very same case, in paragraph 19, the learned judge had observed as follows:
"19.I am aware of the fact that normally Courts are not entitled to issue mandamus to sanction/create post and it is the prerogative of the Government to sanction the post. In this case, having regard to the facts of this case as well as the recmmendations made by the respondents 4,3 and 2, the eligibility to get sanction of the post is not in dispute....."
14.The learned counsel also placed reliance upon a judgment of a division bench of this court in The Government of Tamil Nadu and others Vs. J.R.John Samuel Nallathambi in W.A.No.899 of 2009, dated 1.9.2009. In that case, in paragraph 8, the division bench had observed as follows:
"8.The learned Additional Government Pleader appearing on behalf of the State tried to suggest that it is the discretion of the State to decide as to the posts to be sanctioned or not and the Court should not have given a positive direction to sanction the posts. However, the said submission cannot be accepted as the State cannot discriminate between the aided schools, by allowing full teaching and non teaching employee strength to one school and disallowing such benefit of strength of teaching and non teaching employee to the other school, even though sanctioning of the post is the discretion of the State."
15.The learned counsel also placed reliance upon a judgment of the Supreme Court in State of U.P and others Vs Committee of Management, Mata Tapeshwari Saraswati Vidya Mandir and others reported in CDJ 2009 SC 2051 for contending that in that case, the cut off date fixed by the U.P Government was found fault with by the Supreme Court. On the basis of that judgment, it was contended that Section 14-A fixing cut off date was also invalid. In paragraphs 19 and 21, it was observed as follows:
"19. .....It is by virtue of the amended provisions of Section 13-A that a class within a class was being sought to be created in perpetuity. The application of the 1978 Act only to educational institutions which received grant-in-aid prior to 30th June, 1984, has, in our view, been rightly held to be arbitrary by the High Court. Such provision is in violation of the equality clause enshrined in Article 14 of the Constitution. If it was the intention of the State Government to extend the benefit of the grant-in-aid Scheme to 1000 unaided permanently recognized (A Class) Junior High Schools by its advertisement dated 9th September, 2006, then it would not be fair, as has been rightly held by the High Court, to exclude such unaided institutions which besides imparting education at the Junior High School level were also imparting education, either at the Primary or the Higher Secondary level, from the grant-in-aid scheme, inasmuch as, they too continued to have Junior High Schools imparting education for classes 6 to 8.
21........The only fault of the Respondent institutions, as has been pointed out by the High Court, is that on account of the cut-off date for grant of recognition, they had not been brought within the ambit of the grant-in-aid Scheme on account of their seniority position. Subsequently, when 1000 educational institutions were to be provided such benefit, the exclusion of the respondent institution from being considered for grant-in-aid for the Junior High School section is wholly unjustified and cannot be sustained. ...."
16.The counsel also referred to an another division bench judgment of this court in The Director of School Education and others Vs. K.Uma reported in CDJ 2009 MHC 5967. In that case, the court was concerned with the appointment of the physical education teacher in terms of G.O.Ms.No.525, dated 29.12.1997 and in paragraph 24,the division bench had observed as follows:
"24.Hence G.O.Ms.No.525 needs to be given a liberal interpretation and the government is at libety to reconsider the matter and issue reasonable viable and appropriate norms with regard to appointment of physical education teachers in the schools as per the strength of students, considering the observations made by this court expeditiously."
17.The learned counsel also referred to an amendment made to the Tamil Nadu Recognised Private Schoos (Regulation) Act, 1973 by inserting Section 14-B by virtue of the Tamil Nadu Ordinance No.1 of 2011. The amended provision of Section 14-B(1) reads as follows:
"14-B.Payment of grant to certain private schools.-(1)Notwithstanding anything contained in seciton 14-A, the Government may, on and from the 1st day of June 2011, pay grant at such rate, for such purposes and subject to such conditions as may be prescribed to,-
(a)any private school established during the period commencing from the date of commencement of the academic year 1991-1992 and ending with the last date of thd academic year 1998-1999;
(b)ay 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;
(c)any clas 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; and
(d)any class or course of instruction opened in a private school during the period commencing from the date of commencement of the academic year 1991-1992 and ending with the last date of the academic year 1998-1999."
18.Therefore, in the light of the same, the petitioner seeks for the relief. The petitioner also produced the students strength of the school as on June, 2009. In respect of primary section, the school has only 47 students in all five standards and that in the middle school section, it is again 47. It is claimed by the petitioners that in respect of primary section, they have 1 + 3 teachers and that in the middle school, it worked out on self financing basis.
19.In the counter affidavit filed it was stated that in respect of the primary school, the teacher's post sanctioned is more than the requirement as per the Full Bench judgment in Vijila's case (cited surpa). But in respect of the middle school section, they were allowed to start only with a condition that there will not be any grant for the said school. In the earlier case filed, there was only a direction to consider and insofr as the refusal to grant the aid is covered by Section 14-A of the Act and that the petitioner's request cannot be considered.
20.It must be noted that when Section 14-A came to be challenged, P.Sathasivam, J (as he then was), by judgment in Maria Grace Rural Middle School Vs. Government of Tamil Nadu reported in (2007) 2 MLJ 497 has upheld the validity of Section 14-A.
21.The Supreme Court in State of U.P. v. Ram Charitra Tyagi reported in (2005) 10 SCC 431 in paragraphs 4 and 5 had held as follows :
"4.It appears that the appellants are justified in their submission. The government order dated 12-3-1996 did not speak of a grant to all those mentioned in the list. On the other hand it said that the approval would not be applicable to such schools outside the schools mentioned in the list to which recognition up to high school had been granted. Therefore, the mere appearance of the respondent's name in the list would not entitle it to grant-in-aid if it fell within the exception. This position was further clarified in a subsequent government order dated 23-3-1996 passed in response to a representation by the respondent school where it was again clarified that the sanction would not be applicable to those schools to whom the competent authority had granted recognition as a high school. The order which was passed pursuant to an interim order in the writ proceedings initiated by the respondent also reiterates that statement that the government order dated 12-3-1996 expressly provided that within the schools listed, those which had been granted recognition for high school would not be entitled to get salary or grant-in-aid under the Junior High School Salary Disbursement Act, 1978.
5.The learned counsel appearing on behalf of the respondents has drawn our attention to the fact that there has been a subsequent amendment to the 1978 Act by U.P. Act 34 of 2000 by which the provisions of the 1978 Act have been made applicable mutatis mutandis to institutions up to high school/ intermediate standard. We express no opinion on the scope or effect of this amendment. We are only concerned with the construction of the order dated 12-3-1996. For the reasons stated, we are of the view that the High Court erred in allowing the respondents' writ petition. The decision of the High Court is, accordingly, set aside. This, however, will not prejudice the respondents from claiming any relief that they may be entitled to in law by virtue of the amendment effected by U.P. Act 34 of 2000." (Emphasis added)
22.In the light of the above, the petitioner has not made out any case to seek for a direction to the respondents to release the grant in respect of middle school section. If the petitioner seeks for any relief in terms of the amended Section 14-B introduced by Tamil Nadu Ordinance No.1/2011, it is for the the petitioner school to make a new application in the light of the ordinance and seeks for an appropriate relief. The Government shall consider their claim (in case the Ordinance is substituted by an Act of legislature) in accordance with law.
23.With the above observation, the writ petition will stand dismissed. No costs.
30.01.2012 Index : Yes Internet : Yes vvk To
1.The Secretary to Government, The State of Tamil Nadu, Education Department Secretariat, Chennai-6.
2.The Director of Elementary Education, College Road, Chennai-6.
3.The District Educational Officer, Kovilpatti, Tirunelveli District.
4.The Assistant Elementary Education Officer, Sankarankoil-627 756 Tirunelveli District.
vvk ORDER IN W.P.NO.26319 of 2009 30.01.2012