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Madras High CourtWP/347/2018allowed

Mrs.G.Vimala Arockiamary, v. The Government Of Tamil Nadu,

2018-01-10Honourable Mr Justice T.Raja4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.01.2018

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.347 of 2018 Mrs.G.Vimala Arockiamary ..

Petitioner -vs1. The Government of Tamil Nadu rep.by its Additional Chief Secretary Department of School Education (C2) Fort St.George Chennai 600 009

2. The Director of Elementary Education DPI Campus, College Road Chennai 600 006

3. District Elementary Educational Officer Villupuram 605 602 Villupuram District

4. Assistant Elementary Educational Officer Olakkur 604 307 Villupuram District

5. The Correspondent St.Anne's Middle School Marakkanam Road Tindivanam 604 001 Villupuram District ..

Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents 1 to 4 to act on the proposal submitted by the fifth respondent in respect of the petitioner, working as B.T.Assistant (Tamil) in St.Anne's Middle School, Marakkanam Road, Tindivanam 604 001, Villupuram District w.e.f. 07.06.2017, in consonance with orders of the Hon'ble Division Bench of this Hon'ble Court in the batch of cases reported in (2016) 7 MLJ 155. For Petitioner :: Ms.A.Arul Mary For Respondents :: Mr.P.Raja Government Advocate for R1 to 4

ORDER

This writ petition has been filed by Mrs.G.Vimala Arockiamary, who is working as B.T.Assistant (Tamil) in the St.Anne's Middle School, Marakkanam Road, Tindivanam, seeking a mandamus to the respondents 1 to 4 to act on the proposal submitted by the fifth respondent school for approval of her appointment with effect from 7.6.2017.

2. Heard the learned counsel for the petitioner and the learned Government Advocate for the respondents 1 to 4.

3. Since a vacancy arose in the post of B.T.Assistant (Tamil) on account of the retirement of one Mr.A.Zacharias on attaining the age of superannuation on 31.5.2017, the fifth respondent school, which is a minority educational institution established for the welfare of the Catholic Christian Minority community governed by the provisions of Article 30(1) of the Constitution of India, having been sanctioned with the post of Tamil Pandit by the District Educational Officer vide proceedings dated 26.01.1983 in Na.Ka.No.27582/D/82, appointed the petitioner in the said sanctioned post on 7.6.2017, which fell vacant on 31.5.2017. Immediately after appointing the petitioner, the fifth respondent also forwarded the proposal along with the necessary documents to the educational authorities seeking approval on 22.6.2017.

Again finding no response, the fifth respondent school sent a reminder on 5.9.2017. Learned counsel for the petitioner further submitted that when the fifth respondent school was sanctioned with one B.T.Assistant post in Tamil subject for the academic year 198283 by the District Educational Officer, Tindivanam and the same was also further confirmed by the staff fixation order for the academic year 2013-14 passed by the District Elementary Educational Officer, Villupuram, the petitioner has been made to work without salary.

Learned counsel for the petitioner also submitted that when the fifth respondent School is a minority educational institution receiving grant-in-aid, the teachers appointed in the fifth respondent school are exempted from passing the Teacher Eligibility Test, as per the decision of the Hon'ble Division Bench of this Court in Secretary to Government, Education Department, Chennai and others v. S.Jeyalakshmi and another, 2016 (5) CTC 639 : 2016 (7) MLJ 155. Since the proposal sent by the fifth respondent school has not been considered by the respondents, the petitioner has been advised to come to this Court.

4. The issue raised in this writ petition is no longer res integra, as the Hon'ble Division Bench of this Court in the case of Secretary to Government, Education Department, Chennai and others v. S.Jeyalakshmi and another, 2016 (5) CTC 639 : 2016 (7) MLJ 155, while answering the question in favour of the minority institutions, has held that the Government cannot insist upon the minority educational institutions, both aided

and unaided, to abide by any regulation framed under the RTE Act, therefore, the G.O.Ms.No.181, School Education (C2) Department dated 15.11.2011 issued by the Government of Tamil Nadu is not applicable to the minority educational institutions. In fact, the relevant paragraphs of the judgment of the Division Bench read as follows:- "59. Insofar as minority institutions are concerned, the contention of the learned senior counsel appearing for the minority Schools is that when Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 received the assent of the President of India and it is still in force, it cannot be supplanted by an Executive Order, namely by G.O.Ms.No.181 dated 15.11.2011. Further, the Apex Court has clearly held in Pramati Educational & Cultural Trust that RTE Act, 2009 is not applicable to the minority institutions.

Therefore, we have no hesitation to hold that the right conferred under Article 30(1) of the Constitution cannot be abrogated.

Consequently, G.O.Ms.No.181 dated 15.11.2011, which was issued pursuant to the directions of NCTE, cannot be made applicable to the minority institutions.

60. In the light of the above, we are of the view that the Government cannot insist upon the minority institution, both aided or unaided, to abide by any Regulation framed under the provisions of the RTE Act.

Therefore, we hold that G.O.Ms.No.181, School Education (C2) Department dated 15.11.2011 issued by the Government of Tamil Nadu, is not applicable to the minority institutions.

Similarly, G.O.Ms.No.76 dated 18.3.2015 issued by the Government of Puducherry, is also not applicable to the minority institutions.

63. In the result, the writ petitions are allowed and the writ appeals are dismissed with a direction to the Government to release the salary of the Teachers and also to pay the arrears of salary within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, connected M.Ps are closed."

5. In the light of the above, when the fifth respondent school is a minority institution and the District Educational Officer, Tindivanam has also fixed the staff strength for the academic year 1982-83 vide proceedings dated 26.1.83 and

subsequently, the same was also confirmed by the third respondent for the academic year 2013-14, the filling up of the sanctioned post, which fell vacant due to the retirement of the predecessor of the petitioner, by the fifth respondent school cannot be found fault with. As per the ratio laid down by the Hon'ble Division Bench, I have also considered a similar issue in W.P.Nos.30667 & 30668 of 2017 and by order dated 22.12.2017, while allowing the writ petitions, directed the respondents to grant approval of the appointment of the petitioners therein. Therefore, the writ petition is allowed as prayed for and the respondents 1 to 4 are directed to approve the appointment of the petitioner in the post of B.T.

Assistant (Tamil) in the fifth respondent school with effect from the date of her appointment, on the basis of the proposal sent by the fifth respondent, and release the salary including arrears within a period of four weeks from the date of receipt of a copy of this order. Consequently, W.M.P.No.405 of 2018 is closed. No costs.

1. The Additional Chief Secretary to Government Department of School Education (C2) Fort St.George Chennai 600 009

2. The Director of Elementary Education DPI Campus, College Road Chennai 600 006

3. The District Elementary Educational Officer Villupuram 605 602 Villupuram District

4. The Assistant Elementary Educational Officer Olakkur 604 307 Villupuram District +1cc to the Government Pleader, S.R.No.3008 W.P.No.347 of 2018 GJ(CO) abr(03/02/2018)