K.Mary Suji Bharathi v. The State Of Tamil Nadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 01.09.2016 Coram THE HON'BLE MR.JUSTICE T.RAJA Writ Petition (MD)No.15671 of 2016 and W.M.P.(MD).Nos.11511 and 11512 of 2016 K.Mary Suji Bharathi, B.T.Assistant (History), All Saints Higher Secondary School, Muttom 629 202, Kanyakumari District.
:
Petitioner -Vs1. The State of Tamil Nadu represented by its Secretary, Department of School Education, Fort St. George, Chennai 600 009.
2. The Director of School Education, College Road, Chennai 600 006.
3. The Chief Educational Officer, Kanyakumari District, Nagercoil.
4. The District Educational Officer, Thuckalay, Kanyakumari District.
5. All Saints Higher Secondary School represented by its Correspondent, Muttom 629 202, Kanyakumari District.
:
Respondents Prayer:
Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the fourth respondent herein in O.Mu.No.1320/A2/2016 dated 29.03.2016, quash the same and further direct the fourth respondent herein to approve the appointment of the petitioner as B.T. Assistant (History) in the fifth respondent school from 12.06.2015 onwards with salary and other attendant benefits.
For petitioner : Mr.E.V.N.Siva For respondents : Mr.VR.Shanmuganathan Special Government Pleader
O R D E R
The petitioner herein challenges the impugned order passed by the 4th respondent / the District Educational Officer, Thuckalay, Kanyakumari District, refusing to send the proposal for approval of her appointment as B.T Assistant (History) in All Saints Higher Secondary School, Muttom, Kanyakumari District.
2. Mr.V.R.Shanmuganathan, learned Government Advocate takes notice on behalf of the respondents 1 to 4.
3. The petitioner was appointed as B.T.Assistant (History) on 12.06.2015, in the fifth respondent School, which is a Private Aided Minority School, against the vacancy arising out of retirement of previous incumbent A.Densly on 31.05.2015 and in such vacant place, the petitioner was appointed as B.T.Assistant (History) on 12.06.2015. Subsequently, the fifth respondent school sent a proposal to the 4th respondent, to approve the appointment of the petitioner as B.T Assistant (History) in their school from 01.03.2016, but, the fourth respondent, vide impugned order, dated 29.03.2016, returned that proposal stating that the appointment cannot be approved without pass in Teachers Eligibility Test. Challenging the same, the petitioner is before this Court.
4. While considering a similar issue, a Division Bench at the Principal Seat of this Court, in a batch of writ petitions in W.P.Nos.11983 of 2016, etc., and W.A.(MD).No.921 of 2013, etc. vide order dated 24.08.2016, has held that G.O.Ms.No.181, dated 15.11.2011, cannot be made applicable to Minority Educational Institutions. It is pertinent to extract Paragraph Nos.59 to 61 and 63 of the said Judgment, which runs 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 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 18.03.2015, issued by the Government of Puducherry, is also not applicable to the minority institutions.
61.Though the intention of the Government is that there should not be any discrimination among the Teachers working in non-minority Schools and minority Schools with respect to qualification and that there should be uniformity in the teaching imparted to the children, in view of the decision of the Apex Court in Pramati Educational & Cultural Trust, the Government cannot take shelter under the guise of discrimination to impose restrictions on 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. Even though the petitioner has not passed the Teachers Eligibility Test, in view of the above judgment holding that G.O.Ms.No.181, dated 15.11.2011, cannot be made applicable to Minority Educational Institutions, the case of the petitioner deserves acceptance. Hence, this Court has no hesitation in allowing the present writ petition. Consequently, the writ petition is allowed and the impugned order, dated 29.03.2016, passed by the fourth respondent, is set aside. The fifth respondent is directed to once again send the proposal for approval of appointment of the petitioner to the fourth respondent within a period of one week from the date of receipt
of copy of this order.
Thereafter, the fourth respondent/District Educational Officer, Thuckalay, Kanyakumari District, is directed to approve the appointment of the petitioner as B.T Assistant (History) in the fifth respondent school, within a period of 4 weeks therefrom and also to pay the salary to the petitioner from the date of her appointment. There shall be no order as to costs. Consequently, the connected Miscellaneous Petitions are closed.
6. It is also represented that against the order passed by a Division Bench of this Court reported in 2015 (2) CWC 195 (S.Vincent Vs State of Tamil Nadu and two others) in W.P.(MD). Nos.2677 and 4558 of 2014, dated 25.09.2014, challenging its validity and correctness, a Special Leave Petition is filed and the same is pending. Hence, liberty is granted to the Education Department to pass orders, subject to the result of the SLP filed against judgment of the Division Bench passed in W.P. (MD).Nos.2677 and 4558 of 2014, dated 25.09.2014, holding the validity of G.O.Ms.No.25, dated 06.02.2014. If for any reason, the order passed by the Honourable Division Bench is reversed, the question of approval can be taken up and an order may be passed. Till then, salary of the petitioner shall be released. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To
1. The Secretary, Department of School Education, Fort St. George, Chennai 600 009.
2. The Director of School Education, College Road, Chennai 600 006.
3. The Chief Educational Officer, Kanyakumari District, Nagercoil.
4. The District Educational Officer, Thuckalay, Kanyakumari District.
+1 cc to Mr.E.V.N.Siva, Advocate in SR No.49550 +1 cc to the Spl.Govt.Pleader in SR No.50010 Writ Petition (MD)No.15671 of 2016 01.09.2016 AKV ANR/EM-MPA/04.11.2016/4P/7C