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Madras High CourtWP/17509/2019disposed of

St. Theresa Girls S Higher v. The Government Of Tamil Nadu

2023-06-05Honourable Mr Justice M.Dhandapani17 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.06.2023

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI and W.M.P.Nos.16985, 16986 of 2019 and W.M.P.Nos.21529, 21531, 21539, 21540, 21545 and 21546 of 2021 St.Theresa Girls' Higher Secondary School, Represented by the Correspondent, Pallavaram, Chennai - 600 043.

... Petitioner in W.P.No.17509 of 2019 St.Davids Higher Secondary School, Represented by the Correspondent, Cuddalore Port, Cuddalore - 607 003.

... Petitioner in W.P.No.20276 of 2021 C.S.I. St.Columba's Higher Secondary School, Represented by the Correspondent, No.1, Gandhi Salai, Chengalpattu - 603 002.

(Kancheepuram) ... Petitioner in W.P.No.20286 of 2021 C.S.I. Christ King High School, Represented by the Correspondent, Paravathur, Ranipettai District.

(Old Dist-Vellore) ... Petitioner in W.P.No.20292 of 2021

Vs.

1. The Government of Tamil Nadu, Represented by its Principal Secretary, Department of School Education, Fort St.George, Chennai - 600 009.

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

... Respondents 1 & 2 in all W.Ps

3. The Chief Educational Officer, The Office of the Chief Educational Officer, Dr.P.S.Srinivasan Municipal Higher Secondary School Campus, Ground Floor, Vaigundapuram Street, Kancheepuram District - 631 501.

4. The District Educational Officer, The Office of the District Educational Officer, St.Thomas Mount, Government Boys Higher Secondary School, Chrompet, Chennai - 600 044.

... 3rd & 4th Respondents in W.P.No.17509 of 2019

5. The Chief Educational Officer, The Office of the Chief Educational Officer, Pennaiyar Road, Maniakuppam, Cuddalore - 607 003.

6. The District Educational Officer, The Office of the District Educational Officer, Pennaiyar Road, Maniakuppam, Cuddalore - 607 003.

... 3rd & 4th Respondents in W.P.No.20276 of 2021

5. The Chief Educational Officer, The Office of the Chief Educational Officer, Old GST Road, Nearby Government Girls Higher Secondary School, Chengalpattu - 603 001. (Kancheepuram)

6. The District Educational Officer, The Office of the District Educational Officer, No.58, Old GST Road, Chengalpattu - 603 001. (kancheepuram) ... 3rd & 4th Respondents in W.P.No.20286 of 2021

5. The Chief Educational Officer, The Office of the Chief Educational Officer, Ranipettai, Ranipettai District. (Old Dist-Vellore)

6. The District Educational Officer, The Office of the District Educational Officer, Ranipettai, Ranipettai District. (Old Dist-Vellore) ... 3rd & 4th Respondents in W.P.No.20292 of 2021

PRAYER in W.P.No.17509 of 2019: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order dated 13.11.2018 in G.O.(Ms)No.238, School Education [Pa.Ku.6(1)] Department, on the file of the first respondent and the consequential staff fixation of the year 2018-2019, dated 02.05.2019 in Na.Ka.No.6420/AA5/2018 on the file of the third respondent and quash the same, directing the respondents to hold that second post of Junior Assistant, is not as a surplus for the petitioner School. PRAYER in W.P.No.20276 of 2021: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order dated 13.11.2018 in G.O.(Ms)No.

238, School Education [Pa.Ku.6(1)] Department, on the file of the first respondent and the consequential staff fixation of the year 2019-2020, dated 08.01.2020 in Na.Ka.No.12332/E2/2019 on the file of the third respondent and quash the same, directing the respondents not to hold that one post of Junior Assistant, Record Clerk and one post of Office Assistant as surplus and not to prohibit filing up the post of Scavenger as and when it becomes vacant in the petitioner School.

PRAYER in W.P.No.20286 of 2021: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order dated 13.11.2018 in G.O.(Ms)No.238, School Education [Pa.Ku.6(1)] Department, on the file of the first respondent and the consequential staff fixation of the year 2019-2020, dated Nil .12.2019 in Na.Ka.No.5100/AA5/2019 on the file of the third respondent and quash the same, directing the respondents to hold that the posts of Record Clerk, and one Office Assistant are not surplus in the petitioner School.

PRAYER in W.P.No.20292 of 2021: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order dated 13.11.2018 in G.O.(Ms)No.238, School Education [Pa.Ku.6(1)] Department, on the file of the first respondent and the consequential staff fixation of the year 2019-2020, dated Nil .12.2019 in Na.Ka.No.6431/AA1/2019 on the file of the third respondent and quash the same, directing the respondents to hold that the posts of Junior Assistant and Office Assistant are not surplus in the petitioner School. For Petitioners :

Father Xavier Arul Raj in all W.Ps Senior Counsel for Father Xavier Associates For Respondents :

Mr.S.Silsmbsnsn in all W.Ps Additional Advocate General - II Assisted by Mr.M.Babu Barveez Government Advocate C O M M O N O R D E R Challenging the impugned G.O.(Ms)No.238, School Education [Pa.Ku.6(1)] Department, dated 13.11.2018 and the consequential staff fixation by the respondents, the petitioners are before this Court.

2. The case of the petitioners in nutshell is as follows: The School Management of the respective schools are before this Court challenging G.O.(Ms).No.238, wherein, ratio has been fixed for appointment of non-teaching staff based on the students strength. The said G.O., prescribes the number of persons to be appointed in each post. Considering the earlier guidelines and the present scenario, by virtue of the Government order, the staff fixation was done by taking into account the students strength. When the schools were having more number of students, issuance of G.O.(Ms)No.238, thereby reducing the non-teaching staff and fixing the ratio for appointment of non-teaching staff based on the students strength, caused prejudice to the schools, irrespective of the schools i.e., aided/minority etc. By the said G.O.

, the Government have abolished certain posts, like Record Clerk, Junior Assistant etc., and by abolishing such posts, prejudice is caused not only to the administration of the Schools but also, the students education also affected with the less number of teaching and non-teaching staffs and on this ground also, interference is warranted.

3. When these Writ Petitions were taken up for hearing, the learned Senior Counsel appearing for the petitioners would submit that the issue that arises for consideration has been dealt with by this Court in W.P.(MD) No.13428 of 2020 and after threadbare analysis, this Court has held against the schools and disposed the Writ Petitions upholding the validity of the impugned G.O., and therefore, he prays for appropriate orders.

4. Heard the learned counsel for the petitioners, the learned Additional Advocate General-II appearing for the respondents and perused the materials available on record.

5. The issue came up before this Court is no longer res integra, which has been decided by this Court in W.P(MD)No.13428 of 2020 vide order dated 07.02.2023, wherein, while upholding the validity of the impugned G.O., it has been held as follows:

"8.The issue that arises for consideration is whether private aided minority institutions can demand that the State having once sanctioned a given number of non~teaching posts should continue to extend aid so long as there is requisite students strength. This issue is no longer res integra. The Hon-ble Supreme Court in the decision reported in 2021 SCC OnLine SC 807 (The State of Uttar Pradesh and others v. Principal Abhay Nandan Inter College and ors) had laid down the following propositions :

a) Financial constraints and deficiencies are relevant factors while taking any decision qua aid. b) Right to get aid is not a fundamental right. c) Where a policy decision is made to withdraw aid, an institution cannot question it as a matter of right. d)Challenge can be maintained only on the ground of discrimination.

e)When it comes to aided institutions, there cannot be any difference between minority and non~minority institutions. Article 30 of the Constitution of India is subject to its own restrictions being reasonable. A protection cannot be expanded into a better right than one which a non~minority institution enjoys.

f)A policy decision can also be set out through subordinate legislation.

g)A policy decision is presumed to be in public interest, and such a decision once made is not amenable to challenge, until and unless there is manifest or extreme arbitrariness, a constitutional court is expected to keep its hands off.

h)Executive power shall extend to all matters with respect to which there is legislative power. They are coextensive. By a policy decision, posts can be abolished. This can be done in an indirect way by providing for outsourcing also. Courts cannot create or sustain a post. It is true that Deva Asir decision squarely supports every contention advanced by the writ petitioners. Law cannot remain static. What has been laid down by the Hon-ble Supreme Court is the law of the land under Article 141 of the Constitution of India. The subsequent decision of the Hon-ble Supreme Court referred to above totally undermines Deva Asir. For instance, in Deva Asir, the learned Judge observes that when the petitioner~schools are receiving aid for so many years, financial consideration cannot be cited as a reason for denying aid. The Hon-ble Supreme Court in the aforesaid decision has held that financial aspect is relevant consideration. Rule 15 of the Tamil Nadu Private Schools Regulation Rules also talks of "overall financial consideration". The government cannot remain blind or

indifferent to changing scenario. I take judicial notice of the fact that on account of automation and march of technology, manpower has been renderedredundant in several spheres. Let us take agricultural operations. If 100 persons were needed once upon a time to carry out certain works, with the aid of machines and tractors, even 10 persons are now enough. The impugned G.O cites computerisation has reduced the need for manpower. The reasons set out in the impugned G.O are very much acceptable. In any event, a private institution cannot demand as a matter of right that the Government should continue to disburse the originally fixed grant~in~aid for all times to come.

9.Article 30 of the Constitution of India guarantees right to establish and administer educational institutions by minorities. The impugned G.O does not in any way constitute an inroad into that right. The management can very well appoint as many persons as they want. All that the G.O states is that the government will not be in a position to fund such appointments beyond what has been already provided. In Chandana Das v. State of W.B (2015) 12 SCC 140, it was noted that grant~in~aid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions. Of course, such grant cannot be denied to such

institutions only because the institutions are established by linguistic or religious minority. Grant~in~aid cannot be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. This proposition was affirmed when reference was made to a larger bench [(2020) 13 SCC 411]. The above proposition was approvingly quoted in Christian Medical College Vellore Association v. UOI (2020) 8 SCC 705. The petitioners cannot complain of discrimination. The aforesaid G.O applies across the board to all educational institutions receiving aid irrespective of whether they are minority institutions or non~minority institutions. There is no infraction of the equality principle enshrined in Article 14 of the Constitution of India. 10.

The power of the court to interfere in policy matters is limited. The Hon-ble Supreme Court in Ekta Shakti Foundation v. Government of NCT of Delhi (2006) 10 SCC 337 held that the scope of judicial enquiry in such matters is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere. In Para 11 of the said decision, earlier judgments have been cited and relied upon.

Bhagaur v. State of Rajasthan (2022) 5 SCC 314, it was held that the courts would be slow in interfering in the policy matters unless it is found to be palpably discriminatory and arbitrary.

11.Section 2(5) of the Tamil Nadu Act 29 of 1974 defines "grant" as any sum of money paid as aid out of State funds to any private school. Section 14 of the Act reads that subject to such Rules as may be prescribed, the Government may continue to pay grant to the private school receiving grant from the government before the date of commencement of the academic year 1991~92 at such rate and for such purpose as may be prescribed. Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 states that number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by Director of School Education from time to time, with reference to the academic requirements, teacher~pupil ratio and overall financial considerations.

Rule 6 of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 states that minority schools may be paid grants subject to the orders and instructions issued by the Government from time to time. The impugned G.O has been issued by the government under Article 162 of the Constitution of India. The earlier orders had been considered.

Director of School Education on 19.04.2018 was carefully examined with reference to the relevant provisions. The Government has issued the G.O with the permission of the Finance Department. The Government has taken a considered policy decision as regards certain non~teaching posts. The relevant portion of the said G.O is as follows : 12.For the reasons mentioned above, I hold that no case has been made out for interfering with the impugned policy decision of the government. I uphold the validity of G.O Ms.No.238 School Education (Pa.Ku.6(1) Department dated 13.11.2018. Of course, in the case on hand the appointment of the petitioner was made on 14.07.2018. Therefore, it was not proper on the part of the authorities to have returned the proposal by referring to a subsequently issued Government

Order. Such a view has already been taken by the Hon-ble Division Bench vide order dated 06.12.2021 in WA(MD)No.1052 of 2020 (The State of Tamil Nadu v. The Correspondent, Holy Family Girls Higher Secondary School, Gnanaolivupuram, Madurai). The orders passed by the fourth respondent is set aside. The correspondent of the fifth respondent school shall submit the proposal pertaining to the petitioner-s appointment. The third and fourth respondents shall consider the proposal to be re~submitted dehors and without reference to the impugned Government Order. Appropriate orders will be passed on merits and in accordance with law within a period of six weeks from the date of receipt of the re~submitted proposal.

6. Following the same, this Court had already disposed of a batch of Writ Petitions in W.P.(MD)Nos.18869 of 2019 etc., batch filed by similarly placed Schools. Accordingly, these Writ Petitions are disposed of on the same terms. However, liberty is granted to the petitioners to work out their remedy in the manner known to law in respect of staff fixation for non-teaching staff, if any appointment is made prior to issuance of G.O.(Ms)No.238, dated 13.11.2018. Any appointment made

after issuance of G.O.(Ms)No.238, dated 13.11.2018 will be subject to the said Government Order.

No costs. Consequently, connected Miscellaneous Petitions are closed.

05.06.2023 (1⁄2) NCC: Yes / No Index : Yes / No Speaking Order : Yes / No vji To

1. The Principal Secretary, The Government of Tamil Nadu, Department of School Education, Fort St.George, Chennai - 600 009.

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

.

3. The Chief Educational Officer, The Office of the Chief Educational Officer, Dr.P.S.Srinivasan Municipal Higher Secondary School Campus, Ground Floor, Vaigundapuram Street, Kancheepuram District - 631 501.

4. The District Educational Officer, The Office of the District Educational Officer, St.Thomas Mount, Government Boys Higher Secondary School, Chrompet, Chennai - 600 044.

5. The Chief Educational Officer, The Office of the Chief Educational Officer, Pennaiyar Road, Maniakuppam, Cuddalore - 607 003.

6. The District Educational Officer, The Office of the District Educational Officer, Pennaiyar Road, Maniakuppam, Cuddalore - 607 003.

7. The Chief Educational Officer, The Office of the Chief Educational Officer, Old GST Road, Nearby Government Girls Higher Secondary School, Chengalpattu - 603 001. (Kancheepuram)

8. The District Educational Officer, The Office of the District Educational Officer, No.58, Old GST Road, Chengalpattu - 603 001. (kancheepuram)

9. The Chief Educational Officer, The Office of the Chief Educational Officer, Ranipettai, Ranipettai District. (Old Dist-Vellore)

10. The District Educational Officer, The Office of the District Educational Officer, Ranipettai, Ranipettai District. (Old Dist-Vellore)

M.DHANDAPANI,J.

vji W.P.No.17509 of 2019 & W.P.Nos.20276, 20286 and 20292 of 2021 and W.M.P.Nos.16985, 16986 of 2019 and W.M.P.Nos.21529, 21531, 21539, 21540, 21545 and 21546 of 2021 05.06.2023 (1⁄2)