M.Arockya Jeyashalini, v. The State Of Tamil Nadu,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29.08.2016 Coram THE HON'BLE MR.JUSTICE T.RAJA Writ Petition (MD)No.16184 of 2016 Mr.Arockya Jeyashalini, B.T Assistant (English) Nadar Middle School, Pattaraikattivilai Sanganankulam (PO) Tirunelveli District.
... Petitioner -Vs1.The State of Tamil Nadu rep. By its Additional Chief Secretary, Department of School Education, Fort St. George, Chennai-09.
2.The Director of School Education, DPI Campus, College Road, Chennai-06.
3.The District Elementary Educational Officer, O/o.District Elementary Educational Officer, Tirunelveli, Tirunelveli District.
4.The Assistant Elementary Educational Officer, O/o.the Assistant Elementary Educational Officer, Nanguneri, Tirunelveli District.
5.The Correspondent, Nadar Middle School, Pattaraikattivilai Sanganankulam (PO) Tirunelveli District.
... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned G.O.Ms.No.181, School Education (C2) Department dated 15.11.2011 on the file of the 1st Respondent and the consequential order passed by the 4th respondent in A.Thi.Mu.Ka.No.1271/A1/16 dated 08.08.2016 and quash the both in so far as the petitioner is concerned and directing the Respondents to approve the appointment of the petitioner as B.T. Assistant (English) in 5th Respondent School from 01.06.2016, with all service and monetary benefits.
For petitioner : Mr.G.Thalaimutharasu For respondents : Mr.Aaiyuram K.Selvakumar Govt. Advocate for RR-1 to 4
ORDER
The petitioner herein challenges the impugned order passed by the 4th respondent/Assistant Elementary Educational Officer, Nanguneri, Tirunelveli District, refusing to send the proposal for approval of her appointment as B.T Assistant (English) in Nadar Middle School, Pattaraikattivilai, Sanganankulam (PO), Tirunelveli District.
2.Mr.Aaiyuram K.Selvakumar, learned Government Advocate takes notice on behalf of the respondents 1 to 4. 3.The petitioner was appointed as B.T.Assistant (English) on 01.06.2016, in the fifth respondent School, which is a Government Aided Minority School, against the vacancy arising out of retirement of the Headmaster Mr.I.Chandrabose, on 31.05.2016 and in such vacant place, one Mr.M.Ruban was promoted as Headmaster on 01.06.2016. Subsequently, the fifth respondent school sent a proposal to the 4th respondent, to approve the appointment of the petitioner as B.T Assistant (English) in their school from 01.06.2016, but, the fourth respondent, vide impugned order, dated 08.08.2016, returned that proposal stating that, from 23.08.2010 onwards, a person, who passed the Teachers Eligibility Test alone can be appointed as Teacher and that, since the petitioner has not passed the said Test, there is no possibility to forward the proposal for approval. 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 impugned order, dated 08.08.2016, 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 third respondent within a period of one week from the date of receipt of copy of this order.
Thereafter, the third respondent/District Elementary Educational Officer, Tirunelveli District, is directed to approve the appointment of the petitioner
as B.T Assistant (English) 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, connected miscellaneous petitions in W.M.P.(MD).Nos.11830 to 11832 of 2016 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(W) /True copy/ Sub Assistant Registrar To 1.The Additional Chief Secretary, State of Tamil Nadu Department of School Education, Fort St. George, Chennai-09.
2.The Director of School Education, DPI Campus, College Road, Chennai-06.
3.The District Elementary Educational Officer, O/o.District Elementary Educational Officer, Tirunelveli, Tirunelveli District.
4.The Assistant Elementary Educational Officer, O/o.the Assistant Elementary Educational Officer, Nanguneri, Tirunelveli District.
5.The Correspondent, Nadar Middle School, Pattaraikattivilai, Sanganankulam (PO), Tirunelveli District. +1 cc M/s.G.Thalaimutharasu, Advocate in SR.No.48074 W.P.(md).NO.16184 of 2016 29.08.2016 vs CSL/GSV-PM/20.09.2016 :4P/7C