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Judgment
When the miscellaneous petition came up for hearing as agreed by the learned counsel for the petitioner and the learned Additional Advocate
General for the respondents, the main writ petition itself is taken up for final hearing.
The brief facts are: The Petitioner Association, in this writ petition seeks for the issuance of a writ of certiorari to call for the records made in
Na.Ka.No.105532/C22/96 dated 2.10.1996 passed by the second respondent and to quash the same and pass such other orders.
The petitioner Association is a registered one. It has been started for the purpose of advocating the grievance of Hindu Educational Institutions
throughout the State of Tamil Nadu. It is stated in the affidavit that all the members of the petitioner Association are receiving grant from the
Government of Tamil Nadu and that they are scrupulously following the Tamil Nadu Recognised Private Schools Regulation Act and the Rules
framed thereunder. It is further stated that the petitioner schools are functioning efficiently and their teaching standards and the quality of education
are remarkable.
Petitioner submits that as per G.O.Ms.No.1138 dated 25.9.1978, the schools should recruit its personnel only through employment exchange
by way of notifying the vacancies and also resort to any other form of recruitment, after obtaining a non-available certificate from the concerned
employment exchange. It is further stated that G.O.Ms.No.778 dated 19.5.1979 permitted the school management to fill up the vacancies by
conducting interview but those candidates should have been enrolled in the employment exchange in live list. In that, it has also been mentioned that
within ten days, the employment exchange concerned should sent the list of candidates, and if no such list is received within that stipulated time, the
schools can recruit those candidates by giving paper publication. By proceedings of the second respondent herein in. Na.Ka.No.105532/C22/96
dated 2.10.96, which is impugned herein, it is stated that the schools should recruit those candidates who were sponsored only by the employment
exchange and if any school resorts to direct recruitment, then disciplinary proceedings will be taken against them. With these allegations, the
petitioner association is before this Court, with the prayer stated above.
Notice of motion was ordered by this Court on 9.1.97.
A counter-affidavit is filed by the respondents. It is stated that G.O.Ms.No.1138 dated 25.9.78 was issued directing the schools to recruit its
personal only through employment exchange by way of notifying the vacancies and G.O.Ms.No.778 dated 19.5.1979 was issued directing the
Chief Educational Officer or the concerned appointing authority should intimate the approximate vacancy position to the concerned District
Employment Exchange within 20th day of May every year and in turn the authority of employment exchange should sent the list of candidates
within 5th June. However, the Government in their letter No.45404/Ll/85 dated 1.12.86 amended the guidelines in G.O.Ms.No.778 to the effect
that the authority of employment exchange should furnish the list of candidates within 15 days from the date of the receipt of the notification. It has
been stated in the counter affidavit that a batch of writ petitions was disposed of by this Court, wherein both G.O.Ms.No.1138 dated, 25.9.1978
and G.O.Ms.No.778 dated 19.5.1979 were challenged and on appeal, a Division Bench of this Court, while upholding the Government Orders,
however observed that appointments made prior to the date of the order may be considered on merits without reference to the fact such
appointments were made from open market. It is also stated in the counter affidavit that the Director of School Education issued instructions to the
Subordinate Education Authorities in proceedings dated 15.8.96 to recruit their man-power needs only through employment exchange abiding the
norms contained in G.O.Ms.No.1138 dated 25.9.1978 with other instructions. It has been mentioned in the counter affidavit that the impugned
proceedings in WP No. 385 of 1997 etc. are nothing but the instructions given by the Director of School Education to the subordinate educational
authorities to advise the non-minority private educational institutions to follow the guidelines and government orders relating to the mode of
appointments. It is further pointed out in the counter affidavit by issuance of G.O.Ms.No.873 dated 13.11.95 the power of the management to
make selection of the candidates is not taken away, that it is open to the management to make selection out of the candidates who are sponsored
by the employment exchange and as such, it would not offend Articles 14 and 16 of the Constitution of India. Relevant Observations of the
judgment of the Division Bench were noted in the counter. It is further stated that the judgment of the Supreme Court in Excise Superintendent
Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, will not apply to this case since the issue raised therein did not
relate to a condition for payment of grant. It is further stated that the case of the petitioner relates to the appointments and service conditions of the
employees in non-minority private aided schools which are receiving cent per cent grant from the Government and as such, the decision in Excise
Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, will not apply to the case on hand. It is further
stated that the regulations are at the larger and overall interest of all the unemployed people on the rolls of employment exchange and the
Government as an aid granting authority has a right and power to impose such reasonable restrictions on the managements of aid-receiving
institutions. With these allegations, the respondents pray for the dismissal of the writ petition.
The grievance of the petitioner that the proceedings of the respondents, impugned herein, is in violation of the judgment of the Supreme Court
reported in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, . Learned counsel for the
petitioner submits that in view of the above mentioned decision the mode of selection is from the list sponsored by the employment exchange as
well as from the candidates appearing after a vide publicity in dailies and media. As such, the learned counsel for the petitioner submits that the
impugned circular to be quashed.
Learned Additional Advocate General appearing for the respondents submits that the impugned circular is only an internal communication and it
is in. compliance of the observations of the Division Bench of this Court. He submits that the petitioner cannot challenge the internal communication
on the basis of the decision of the Supreme Court mentioned above. He further submitted that mere approval granted in WP. (cited supra) will not
ipso facto quash the impugned order and it will not be helpful to the petitioner in the given case. He also relies on the judgment of the Supreme
Court reported in Arun Tewari v. Zila Mansavi Shikashak Sangh, AIR 1998 SC 331.
I have given my careful consideration to the arguments of the respective learned counsel for the petitioner and the learned Additional Advocate
General and perused the materials placed before me and the case law cited at Bar.
It is no doubt true that the administrative instructions cannot be inconsistent with the Rules and cannot override but they can supplement.
Learned counsel for the petitioner has not been able to point out any other mode of selection of personnel, except the mode prescribed in the
Government Orders which had been challenged earlier. A Division Bench of this Court in the case of State of Tamil Nadu etc. v. The T.N.
Recognised Private Schools Managers'' Association etc., 1995 WLR 499 while considering the question as to whether the private educational
institutions other than minorities receiving aids can be directed to make recruitment through the employment exchange, held that the impugned
Government Orders directing private educational institutions to fill up the vacancies from among the candidates sponsored by the employment
exchange and in the event the names of candidates furnished by the employment exchange are not found to be suitable and if no other suitable
candidate is available among the candidates registered in the employment exchanges, it would be open to the private educational institutions to
obtain permission from the State Government or the concerned authorities as the case may be, and proceed to make recruitment through open
market are well founded.
A perusal of the impugned order dated 2.10.96 shows that it is only a letter written by State Secretary to other heads of Departments, wherein
the Heads of Departments throughout the State have been instructed to follow the procedures mentioned in the Government Orders existing as on
date. It has been further pointed out therein that any failure to comply with the abovesaid instructions will be viewed seriously and disciplinary
action will be initiated for such lapses.
In the circumstances, the question of setting aside the impugned proceedings dated 2.10.96 does not arise in the absence of existence of any
new mode or its violation. As already stated, the decision of the Division bench of this Court, cited supra, which approval the selection through
employment exchange and if no suitable candidates are available from the employment exchange then, appointments can be made among the
candidates available from open market subject to approval of the Government. The decision has become final. Further, SLP filed against the
judgment of the Division Bench has been dismissed, which fact is not disputed. As such, the petitioner is not entitled to challenge the same, in the
garb of Government Orders dated 13.11.95 and 2.10.96.
So far as the argument that the impugned order is inconsistent with the observations of the Supreme Court in Excise Superintendent
Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, is concerned, it is not acceptable. In the above mentioned case,
the Apex Court has upheld the claim of consideration of such persons, who have not come forward through the employment exchange, in the facts
of that case. So the petitioner cannot take advantage of the decision of the Supreme Court, on the ground that the impugned proceedings is
inconsistent. In any view of the matter the impugned proceedings is nothing but a clarification of the earlier Government Orders.
It is not out of place to mention that in a recent case, two amendments and Circulars of Madhya Pradesh Non-Gazetted Class III Education
Service (Non-collegiate service) Recruitment and Promotion Rules were challenged and they were struck down by the Administrative Tribunal.
The Apex Court in Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 after considering the cases of Excise Superintendent
Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, and the case of Union of India (UOI) and Others Vs. N.
Hargopal and Others, observed as follows:
..There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled
as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue...
Their Lordships, without overruling, but distinguishing Union of India (UOI) and Others Vs. N. Hargopal and Others, upheld the impugned
amendments to the Recruit Rules as also the Circulars relating to the procedure for selection. Therefore, on this count also, the petitioner cannot
challenge the circular saying that it is inconsistent with the decision of the Supreme Court.
No facts were pleaded about the individual in the writ petition filed by the Association on behalf of so many persons. Learned counsel for the
petitioner has not beep able to point out any specific pleadings that at the point of time whether a list was called from the employment exchange
concerned or not, whether the employment exchange concerned sent a nil report to the private agency, and that whether suitable persons were
available or not before giving appointment to an individual through advertisement, with the prior permission, from open market. So merely on the
general allegation, it cannot be presumed. Nor it can be gone into in this writ petition. Further, each case depends upon the facts of its own case.
So, no direction for the approval of the members of the Association can also be granted in general.
However, it would have been a different matter, if both modes were available in the Rules itself simultaneously. The other mode will come into
picture, if no suitable candidate from employment exchange is available. The State Government is always free to consider in future, looking to the
needs of the day and better course to ask the candidates to apply, in pursuance of advertising through dailies and media in addition to calling
candidates from employment exchange, as per the observations of the Supreme Court in the case of Arun Tewari, AIR 1998 SC 331. As already
discussed, no direction as prayed for in this writ petition, can be issued.
the petitioner also cannot take advantage of the unreported decision of this Court in, A. Deviapalam v. The Director of School Education,
Chennai-6 and others, WP No.9316 of 1997 dated 24.11.1997, which was passed, in the circumstances of that case. In that case, the court
directed the 2nd respondent to grant approval for the petitioner''s appointment, if he is qualified and if he had been selected from among those who
had applied for the post pursuant to the advertisement, if the vacancy had also been noticed to the employment exchange and candidates
sponsored by the employment exchange are considered before the petitioner was selected. A perusal of the said order shows that it has been
passed only with certain conditions which were stated by the Division Bench of this Court in the case mentioned above.
No other point was urged before me.
For the reasons stated above, the writ petition is dismissed. The order of stay granted earlier is vacated. Vacate stay petition is allowed and the
stay petition is dismissed. There will be no order as to costs.