BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 20.03.2024
ORDER PRONOUNCED ON : 09.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W. P.(MD).No.10824 of 2021 and W.P(MD).Nos. 19845, 19846, 20831, 21967, 21968, 21969, 21970, 21971, 21972, 21973, 21974,
21975, 22095 22096, 22541, 22542, 22543, 22544, 22545, 22546,
22547, 22548, 22549, 22550, 22830, 22831, 22832, 22833, 22834,
23109, 23153, 23498, 23499, 23530, 23628, 25149, 25150, 25443, 25444, 25445, 25446, 29031, 29032, 29033, 29034, 29035, 29036, 29037, 29038, 29039, 29040, 29041, 29042, 30067, 30068, 30069, 30071, 30072, 30202 and 30713 of 2023 and
W.M.P(MD).Nos.16373, 16374, 19297, 19352, 21616, 21617,
21618, 21619 and 25595 of 2023
W.P(MD).No.10824 of 2021
K. Mohamed Ismail ….Petitioner
Vs
1.The District Education Officer
Valliyur
Tirunelveli District
2.The Chief Educational Officer
Palayamkottai
Tirunelveli District
3.The Correspondent
Amir Jamal Higher Secondary School
Idyankulam
Padmaneri Post Office
Tiruneveli District …..Respondents
Prayer in WP(MD).No.10824 of 2021: This Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents to approve the appoint of the petitioner as a B.T.Assistant (Mathematics) in the third respondent school, on the basis of the proposal sent by the said school on 14.11.2019 without insisting for qualification in the TET Examination in the light of the decision of the Hon’ble Supreme Court by considering the representation given by the petitioner dated 18.06.2021.
In WP(MD).No.10824 of 2021:
For Petitioner : Mr.E.Marees Kumar
For R1 & R2 : Mr.D.Sadiq Raja
Additional Government Pleader
COMMON ORDER
The batch of 61 writ petitions have been filed either by school management or by individual appointees seeking a writ of mandamus directing the authorities to approve their appointment as Secondary Grade Teachers / B.T.Assistants / Director of Physical Education (Grade-II).
2.Since the approval applications are pending for several months, these writ petitions have been filed seeking a mandamus as against the authorities for approving the appointments.
3.This Court could have very well directed the authorities to consider the proposals forwarded by the school management within a specified time. In many cases, the authorities are rejecting the request for approval on one ground and when the said order is set aside by the Court, the authorities cite a different ground altogether and again proceeded to reject the proposal submitted by the School. Mostly the proposal submitted for approval of the appointment submitted by the management are rejected/returned by the authorities on the following grounds:
(a)There are surplus Secondary
Grade/B.T.Assistant teachers in the concerned School or in the corporate management or within the educational
district.
(b)The appointed teachers have not passed TET
Examination.
(c)The School has not obtained prior permission from the authorities to effect appointment.
(d) In appointment of B.T.Assistant teachers, subject roster has not been followed.
(e) As against the order of the Hon’ble Division
Bench in W.A(MD).No.76 of 2019 batch case, the Special Leave Petitions are pending before the Hon’ble
Supreme Court.
(A). Surplus Teachers:
4.The Hon’ble Division Bench by its order dated
31.03.2021 in W.A(MD).No.76 of 2019 (The Secretary to Government & others Vs. Iruthaya Amali & another) in paragraph No.95 has passed the following order:
- In view of the aforesaid discussions, we are inclined to pass the following orders in this batch of cases :
“(a) For the purpose of fixing the students-teacher ratio, the provisions of RTE Act followed by the G.O. passed in this regard shall be taken as the basis and the student pupil ratio shall be either 1:30 or 1:35 as the case may be as per the provisions of RTE Act.
(b) For the purpose of fixing the staff strength of aschool, school shall be the unit and not the Educational agency / joint management / corporate management.
(c) Once the staff strength is fixed in a particular academic year of a school, it is the duty of the Educational authorities to identify the excess staff and once the excess staff are identified, the same shall be intimated to the school concerned as per the compendium of schedule and thereafter, take steps to redeploy those excess staff to the needy school.
(d) Once the excess staff are identified and after keeping the Institution intimated, if those excess staff are redeployed to the needy school within a stipulated time as per the compendium of schedule, the redeployed staff shall join duty in the redeployed school.
(e) The following compendium of schedule, for the aforesaid purpose, i.e., for fixing the teaching staff, identifying the excess teaching staff and to redeploy the identified excess teaching staff to the needy school, are framed as hereunder.
(f) COMPENDIUM OF SCHEDULE :
(i) Closing of Admission for the purpose of fixation of staff strength – 31st July of that academic year.
(ii) Fixation of staff strength of the school concerned, based on the student strength as on 31st July as per the strength of the pupil updated in the EMIS – 10th August.
(iii) The aforesaid fixation of staff strength of the schoolshall be intimated to the school on or before 15th August.
(iv) On receipt of information from the Department, the School concerned shall give its objection if any, based on the teacher-pupil ratio on such fixation of staff strength by 25th of August.
(v) On receipt of such objection, if any, from the school concerned, the final order of fixing the staff strength of the school, with the provisional order for identification and redeployment of excess staff shall be passed by the Department by 5th of September.
(vi) On receipt of such intimation of provisional order on identification and redeployment of excess staff, the school under corporate or joint management, shall act upon to give its consent to the redeployment of excess teacher concerned after keeping the teacher informed, to the Department, by 15th of September.
(vii) On receipt of such reply / intimation from the school concerned, final redeployment order shall be made and communicated to the school from where redeployment is made with a copy marked to the http://www.judis.nic.in W.A. (MD).No.76 of 2019 etc., batch teacher concerned and also to the needy school to which the deployment is to be made, by 25th September.
(viii) On receipt of such orders by the teachers who areredeployed, they shall report to the school where they have been redeployed, on or before 30th September.
(ix) After making this redeployment process, still excess staff are available, the Education Department shall take further effort, and those excess teachers still available at the hands of the Education Department to be redeployed to a needy school beyond the corporate management concerned, i.e., to any school located in the same Educational District or Revenue District and even beyond which if still excess staff are available, they can be redeployed to any school beyond the Revenue District of course after getting the choice of such teacher concerned and that shall be completed by 10th October.
(x) Those teachers who got such redeployment within the Revenue District or beyond the Revenue District by orders to be issued on or before 10th of October, shall report duty to the School where they have been redeployed on or before 15th of October.
(xi) It is made clear that beyond 15th October of every academic year, no redeployment of teacher shall be made or given effect to.
(g) Once the teachers are redeployed from a particular school, after the joining time as provided under the compendium of schedule, the school from which the teacher has been redeployed cannot get teaching aid for the next month salary for that redeployed teacher and that salary shall be paid only through the school, where the teacher has been redeployed, for which, teaching grant shall be sent by the Educational authorities only to the needy school, where the teacher has already been redeployed.
(h) While identifying the excess staff for redeployment purpose as indicated above, regard has to be given that as far as possible junior most teacher shall be subjected to such redeployment. Also in case of high and higher secondary schools, while making such redeployment based on teacherpupil ratio, regard has to be given to ensure that, atleast the minimum required teacher, for each subject being taught in the school, are in possession.
(i) Insofar as the teaching grant for the additional staff employed in the already aided school as on the academic year 1991-92, irrespective of the medium of instructions or irrespective of the students strength, as per the teacher pupil ratio as indicated above especially in the context of RTE Act and subsequent G.O issued in this regard, the staff fixation shall be made and for those additional teaching staff, who are pressed into service for additional standard or additional class started, from the academic year 2021-22, staff grant shall be sanctioned by the State Government as such sanctioning of staff grant will be the essential requirement to meet the object of the provisions of the RTE Act, otherwise, the Fundamental Right guaranteed to the children between the age of 6 and 14 studying in those schools would get affected.
(j) Irrespective of the medium of instruction, whetherTamil or English, such a staff grant for additional sections or standard shall be provided with the same condition as indicated above from the academic year 2021-22.
(k) The State Government shall ensure that, the provisions of the Tamil Nadu Tamil Learning Act, 2006 are implemented in letter and spirit, of course subject to the judicial orders / court orders, if any, passed in this regard for giving exemption to a group or class of students as provided under Section 5 of the said Act.
(l)Until the Tamil Nadu Private Schools (Regulation) Act, 2018 and the Rules to be made thereunder are given effect to, these set of directions issued in this order shall mandatorily be followed by the stakeholders, i.e., both State Government as well as the Educational Institutions.
(m) Once the 2018 Act and the Rules to be made in this regard comes into effect and the issues which are covered under this order as per these mandatory directions are taken care, these mandatory directions shall be ceased to be in execution.
(n) In order to give effect to such comprehensive legislation, i.e., 2018 Act, the work of framing necessary Rules under the Act shall be completed as early as possible.
(o) In view of the aforesaid, the G.O.Ms.No.165, School Education [Tho.Ka.2(1)] Department, dated 17.09.2019 is hereby declared to be inoperative.
(p) In view of the statistics given by the communicationof the Director of School Education and Director of Elementary Education, dated 28.10.2020, as the import of the same in entirety has already been quoted herein above, the Education Department shall take endeavour to identify the exact excess teaching staff in various category of Schools, i.e., Government schools (Panchayat Union, Municipality and Corporation) Primary and Middle Schools, Government aided primary and middle schools, Government High and Higher secondary schools and aided High and Higher Secondary Schools separately by taking into account the recent policy decision taken by the State Government, whereby the superannuation age of the Government servants including the teachers was enhanced from 59 to 60, thereby there would be no superannuation of teachers for the next one year and accordingly, the correct statistics shall be made ready within a period of two months.
(q) Once the statistics of excess teaching staff under various category of schools as referred to above are made by taking into account the superannuation age of teachers as 60, such excess teaching staff identified in various category of schools with details of name of the school both Government as well as Private aided, shall be uploaded in the website / web portal of the School Education Department within the aforestated period of two months.
(r) Once such information are uploaded in the web portal by the Education Department, after verifying the same, the private aided schools, both minority and non-minority can point out any wrong information if given with regard to the identification of the excess teaching staff in the concerned school and such intimation or clarification can be given by the school concerned through the management to the DEO / CEO concerned within a period of one month thereafter.
(s) On receipt of such objections, information / clarification from the school concerned with regard to the alleged wrong information provided by the State Government / Education Department in the web portal as indicated above, the same shall be verified and rectified by the Education Department, within one month thereafter.
(t) This exercise shall be completed on or before 31st July 2021, so that the identification of excess staff and follow up action as indicated in the compendium of schedule herein above can be undertaken and be followed strictly.
(u) Till such excess teaching staff are identified under all category of schools as indicated above, no recruitment shall be made by the State Government / Education Department for the purpose of appointment of teachers under various categories like Secondary grade teacher, Graduate teacher, Post-Graduate teacher, Language teacher, Physical education teacher etc.,
(v) Like that insofar as aided minority institutions are concerned,if it is a stand alone institution, their right of appointing a teacher in a vacancy within the sanctioned strength for the academic year 2021-22 shall not be affected because of the identified excess teachers in other schools. At the same time, even if the school is a minority institution, however being administered by a joint management or corporate management, in respect of those schools, even though vacancy arose within the sanctioned strength of such school or schools under corporate management or joint management, those vacancies shall not be filled up unless the excess staff identified in all other schools under the same corporate or joint management are exhausted fully and only after exhausting the redeployment process on all excess teachers identified in the group of schools under the same corporate management, they shall be free to make appointment afresh from open market in the vacancy if any still, within the sanctioned strength.”
5.The order of the Hon’ble Division Bench was put to challenge by some of the School Managements before the Hon’ble Supreme Court. The judgment of the Hon’ble Division Bench was put to challenge by the Government of Tamil Nadu in Special Leave to Appeal (Civil).No.
15702 of 2021. The Hon’ble Supreme Court by its order dated 16.02.2024 has closed the Special Leave Petitions and relegated the parties to the Madras High Court with the following observation in paragraph Nos. 2 to 6 which are extracted as follows:
“2.The counsel would refer to this Court’s
proceedings dated 27.09.2023 and the earlier proceeding dated 10.08.2022 to point out that following the liberty granted in Clause (m) of Paragraph 95 in the impugned judgment dated 31.03.2021, the Tamil Nadu Private Schools (Regulation) Act, 2018 and Rules were enacted w.e.f. 20.01.2023. Thus the enacted laws will govern the process of approval for teachers in the concerned schools provided the individual and the school concerned satisfy the criteria laid down in the 2023 Regulations. - However, the above 2023 Regulations and the Rules are subject matter of challenge before the Madras High
Court and an interim order was passed therein on
21.04.2023, ordering status quo on the operation of the 2023 Regulations. - The suggestion made by the two senior counsel to this Court is to relegate the parties to the pending proceedings in the Madras High Court. It is however submitted that the Division Bench should limit itself to the core direction given in sub-clause (i) of paragraph 95 of the impugned judgment dated 31.03.2021 in the Writ Appeal (MD) No.76 of 2019 and need not be concerned with the other aspects in the earlier judgment (31.3.2021).
- Accepting the above submission, this matter is ordered to be closed by relegating the parties to the Madras High Court. It is made clear that the Court should decide the pending matter on merit without being influenced by any observation made by this Court during the pendency of the present proceeding or under the impugned order.
- In view of the above order passed today, if any contempt case has been filed, the same should be either deferred or closed.”
6.The Hon’ble Division Bench of our High Court in
W.A(MD).No.15157 of 2023 (State of Tamil Nadu Rep.by its Principal Secretary, Department of School Education, Chennai and others Vs. C.Esakkimuthu and another) by an order dated 21.09.2023 has held that the order of the Hon’ble Division Bench in W.A(MD).No.76 of 2019 batch case dated 31.03.2021 is prospective in nature.
7.In view of the judgment cited supra, it is clear that any appointment that is made prior to 31.03.2021 is not governed by the Division Bench judgment of our High Court in W.A(MD).No.76 of 2019 and therefore, approval has to be granted regardless of the issue relating to surplus teacher. However, with regard to the Schools (whether they are stand alone or fallen within the corporate management), if any appointment order is issued after receipt of staff fixation order for a particular academic year, the same shall be governed by the staff fixation order and there cannot be any approval disregarding the issue of surplus. 8.The Hon’ble Division Bench of our High Court in WA(MD).No.
136 of 2017 (The Joint Director of Elementary Education, College Road, Chennai and others Vs. Getzy Roopala and others) in the order dated 04.08.2017 has categorically held that when there are surplus teachers in corporate management, they have to be redeployed elsewhere. Without redeployment, the management cannot make further appointment. In case, any appointments are made to surplus vacancies, it is for the management to pay the appointees out of their own resources and the Government cannot be saddled with liability for such illegal appointment of teachers.
(B) Prior permission:
9.Where prior permission has been granted by the concerned authority for effecting appointment, the issue of surplus cannot be resurrected by the authorities, when proposal is submitted by the school management for grant of approval to the appointment.
(a)Where a school is identified as a stand alone/single unit school and no surplus have been identified for any particular academic year, for a particular subject, the authorities should proceed to approve the appointment, if the appointee is otherwise qualified.
10.The Hon’ble Division Bench in a judgment in WA(MD).No.
1098 of 2022 ( The Secretary to the Government, Department of School Education and others Vs. R.Jeya Suhi and another) dated
16.08.2023 has held that in the absence of any prohibition to make appointments when the surplus teachers are in existence in the corporate management, there is no impediment for granting such an approval. The
Hon’ble Division Bench had further held that G.O.Ms.No.165, School Education Department dated 17.09.2019 was suspended on 20.09.2019 and therefore, it should be deemed that the order was not in existence from the said date onwards. Therefore, any appointment made after 20.09.2019 has to be approved by the authorities without citing
G.O.Ms.No.165, School Education Department dated 17.09.2019.
(C). Requirement of Teacher Eligibility Test (TET)
Qualification:
11.The Hon’ble Division Bench of our High Court in a judgement reported in 2023-3-L.W.112 (The Director of School Education D.P.I.Campus, College Road & others Vs. M.Velayutham & another) in paragraph Nos.73 and 74(c) has held that any secondary grade teacher who was appointed prior to coming into force of the Right to Education Act is necessarily required to pass TET examination for being promoted as a B.T.Assistant. As far as fresh appointment as secondary grade teacher or B.T. Assistant is concerned, a pass in TET is an essential eligibility criteria to be fulfilled. The Hon’ble Division Bench had further held that those appointments prior to 29.07.2011 are exempted from passing TET examination only for the purpose of continuance in the post of secondary grade teacher or B.T.Assistant without promotional prospects. The Hon’ble Division Bench in their order dated 14.06.2023 has held that the above said principle relating to pass in TET examination will not have any application to minority institution both aided and un-aided.
12.The Hon’ble Division Bench of our High Court in
W.A(MD).No.354 of 2020 (The District Educational Officer, Sankarankovil and another Vs. E.Elsi Jemima and another) by an order dated 22.06.2023 has held that a pass in TET examination is not mandatory for being appointed to a minority institution. Therefore, it is clear that as far as the minority institutions are concerned, a pass in TET examination is not mandatory required qualification for being appointed as a teacher.
(D) Applicability of Rule 15(4) of Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 to minority institutions:
13.The Hon’ble Division Bench of our High Court in a judgment reported in 2007-4-L.W.617 ( Eka Ratchagar Sabai Higher Secondary School & another Vs. K.Sumathi & another) in paragraph No.15 has held that Rule 15(4) of Tamil Nadu Recognised Private Schools
(Regulation) Rules 1974 is in violation of Article 30(1) Constitution of
India and the same is not required to be followed by the minority institution. Therefore, whenever the proposals for approval of promotion are submitted by the minority school managements, the above said aspects should be kept in mind by the authorities concerned.
(E). Upgradation of Secondary Grade Teacher post as
B.T.Assistant:
14.As far as the conversion of secondary grade teacher to that of the B.T.Assistant for middle schools are concerned, the same being a policy decision of the Government, the conversion is automatic and prior permission is not required for such an upgradation of secondary grade teacher post to that of B.T.Assistant for taking classes from VI to
VIII standards.
(F) Subject Roster:
15.Two learned Single Judges of our High Court in a judgement reported in 2006 (5) CTC 385 ( Director of Elementary Education and others Vs. S.Vigila and another) and 2007 (2) MLJ 760 ( Correspondent, Britannia Higher Secondary School, Chennai Vs. State of Tamil Nadu) had held that the subject roster cannot be imposed upon the school management by way of circular or administrative instructions. However, the same can be imposed only through a statutory regulation. These two orders were approved by the Hon’ble First Bench of our High Court in W.A.1198 of 2007 by an order dated 20.09.2007 (The State of Tamil Nadu Vs. The Correspondent, TELC Middle School, Villupuram). Therefore, it is clear that unless statutory provisions are there, the question of directing the management to follow subject roster through a circular or administrative instruction is not permissible in law.
(G) Sewing mistress/drawing teacher:
16.When a single post is sanctioned for tailoring or drawing subject, the same cannot be declared to be a surplus post on the ground that the School has not achieved the minimum students strength of 250 students. This Court in W.P(MD).No.1321 of 2020 by an order dated 19.02.2020 has passed an order to the above said effect. The said judgement has been upheld by the Hon’ble Division Bench by its order dated 02.03.2022 in W.A(MD).No.81 of 2022. Therefore, the authorities cannot reject any proposal for approval of the appointment of a drawing teacher or sewing mistress (where there is a single sanctioned post) on the ground that there is no minimum students strength.
(H) Physical Education Teacher/ Physical Director: - As per G.O.Ms.No.525, School Education (D1) Department, dated 29.12.1997, if the student strength in a High School exceeds 250, the School is eligible for one post of Physical Education Teacher. In case, if the additional strength exceeds 300, one additional post of Physical Education Teacher will be sanctioned subject to a maximum
of 3.
18.As far as the Higher Secondary Schools are concerned, if the students strength exceeds 400, the post of Physical Education Teacher will be upgraded as one post of Physical Director. Therefore, it is clear that the students strength in Classes VI to X should also be taken into account for sanctioning the post of a Physical Director in a Higher
Secondary School.
(I) Procedure to be adopted while rejecting the proposal:
19.It could be seen from various writ petitions that the authorities are rejecting or returning the proposals submitted by the managements citing any one of the reasons as catalogued above. Those orders are challenged before this Court and the impugned orders are set aside.
Thereafter, the authorities find out a new reason to reject the proposal. This practice has to be deprecated. Whenever a proposal is submitted by the management for approval of appointment/promotion, in case, if the authorities proceeded to reject or return the proposal, they have to enumerate all the reasons comprehensively. If any authority is found to have not followed this procedure, the departmental action should be initiated as against him by the concerned higher authorities.
(J) Conclusion: - In the result, all the writ petitions are allowed with a direction to the authorities to consider the proposal for approval of appointment submitted by the School Management to the post of Secondary Grade Teachers/B.T.Assistants/ Director of Physical Education (Grade-II) and pass orders in the light of the above said observations, within a period of eight (8) weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petitions are closed.
09.08.2024
Internet : Yes/No
Index : Yes/No NCC : Yes/No msa
To
1.The District Education Officer
Valliyur
Tirunelveli District
2.The Chief Educational Officer
Palayamkottai
Tirunelveli District
R.VIJAYAKUMAR, J.
msa
Pre-delivery Common Judgement made in
W. P.(MD).No.10824 of 2021 and W.P(MD).Nos. 19845, 19846, 20831, 21967, 21968, 21969, 21970,
21971, 21972, 21973, 21974, 21975, 22095 22096,
22541, 22542, 22543, 22544, 22545, 22546, 22547,
22548, 22549, 22550, 22830, 22831, 22832, 22833,
22834, 23109, 23153, 23498, 23499, 23530, 23628,
25149, 25150, 25443, 25444, 25445, 25446, 29031,
29032, 29033, 29034, 29035, 29036, 29037, 29038,
29039, 29040, 29041, 29042, 30067, 30068, 30069, 30071, 30072, 30202 and 30713 of 2023. and
W.M.P(MD).Nos.16373, 16374, 19297, 19352, 21616, 21617, 21618, 21619 and 25595 of 2023.
09.08.2024