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Judgment
V. Dhanapalan, J.—This appeal is directed against the order of a learned Single Judge in W.P. No. 235 of 1998 on 23.02.2000 and the
prayer in the said W.P. is for issuance of a writ of certiorarified mandamus calling for the records of the third respondent in Na.Ka.No 5/A4/97
dated 12.11.19 97 and quash the same and direct the respondents 1 to 4 to approve the petitioner''s appointment as a Secondary Grade teacher
in the fifth respondent school.
The case of the appellant is that after passing Higher Secondary Course Certificate, she had joined Teacher Training Course at Children''s
Garten School, Mylapore, a recognised Teachers Training Institute and wrote the examination conducted by the Director of Government
Examinations in 1989 and the said authority issued ""Teachers Training Certificate Secondary Grade"" which also mentioned that she had appeared
for the Kindergarten examination.
After serving in a school on a temporary basis, both in leave vacancy and also in secondary grade leave vacancy, she was appointed on
18.06.1997 in a permanent vacancy in the fifth respondent school. The fifth respondent school submitted a proposal for the approval of the
appointment from the third respondent i.e. The District Elementary Education Officer. But, the fourth respondent, i.e. The Assistant Elementary
Education Officer has returned the Service Register of the appellant on the ground that she had passed only Kinder Garten Teachers Training
Course and hence, she is not qualified. In such a situation, the appellant moved this Court and this Court directed the petitioner to file an appeal u/s
41 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "" the Act""). The third respondent rejected the
appeal and the appellant had filed W.P. No. 235 of 1998 against which the present appeal has been preferred.
According to the appellant, the certificate issued by the first respondent clearly mentions ""Teachers Certificate Secondary Grade"" and therefore,
it is not open to the third respondent to contend that her certificate is not equivalent to the Secondary Grade Teachers Certificate and as such, the
order of the third respondent had been passed in violation of principles of natural justice and it is an arbitrary exercise of powers vested upon the
third respondent. It is the further case of the appellant that the certificate possessed by her had been misconstrued as TSLC of the Secondary
Grade or its equivalent and the certificate should have been treated as equivalent to that of the Secondary Grade certificate and hence, the
certificate issued is a valid one and the respondents are estopped from contending that the Teachers Training Certificate possessed by her is not
equivalent to that of a Secondary Grade Certificate. The further case of the appellant is that the first respondent has since abolished the post of
Elementary Grade teachers and in that context, conducted a short-term course SCERT and upgraded all the elementary teachers as Secondary
Grade teachers.
It was also pointed out by the appellant that the respondents, having issued a valid certificate, cannot now invalidate the same and cannot
contend that it is of no value for the purpose of employment. In the G.O. Ms. No. 1251 Education Department dated 14.12.1992, which has since
been modified by subsequent letter dated 13.05.1993, directed that Pre School Teachers Training Course holders are eligible to hold the post of
Secondary Grade teachers in Government Schools and local bodies and when the appellant possesses the same qualification, she has to be
considered for the same and she cannot be singled out and treated differently merely because she is appointed to a private school and the refusal to
approve her appointment is arbitrary and violative of Article 14 of the Constitution of India and discriminatory in nature.
On the other hand, on behalf of the respondents 1 to 4, the Additional Secretary to Government, School Education Department, filed counter
affidavit contending that the appellant was appointed as Secondary Grade Assistant in the fifth respondent school on 18.06.1997 and in terms of
the Act and Annexure V of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, (hereinafter referred to as "" the Rules""), the
qualification prescribed is as follows:
Secondary Grade Teacher
S.S.L.C.
T.S.L.C. of Secondary Grade or its equivalent Elementary Grade Teacher E.S.L.C. or its equivalent and Trained Teachers Certificate of
Elementary Grade or its equivalent Teachers who have passed the Nursery, Montessori and Kinder Garten School Leaving Certificate
Examination of Secondary Grade shall be employed to handle Standards I and II only
By citing the above provisions, it was contended by the respondents that the appellant had possessed the only the following qualifications,
namely, Secondary School Leaving Certificate and Higher Secondary School Leaving Teachers Certificate (Kinder Garten Training School
Leaving Certificate Examination) and the certificate possessed by the appellant is equivalent only to that of an elementary school teacher and as the
appellant does not possess the requisite qualification, in terms of Rule 15(6), her appointment was not approved and the refusal to approve has
also been confirmed in appeal.
The respondents further contended that after amendment of the Rules on 20.03.1978, the teachers who had passed the Nursery, Montessori
and Kinder Garten School Leaving Certificate Examination cannot be appointed in the sanctioned post of Secondary Grade Teacher and hence,
the appellant is not qualified to hold the post of Secondary Grade Teacher and accordingly, her appointment cannot be approved.
The learned Judge, on considering the submissions made by the learned Counsel on either side, has opined in paragraph 42 of his judgment
which is extracted as under:
It is not as if the petitioner''s appointment is protected by the saving provision in the rule. Concedingly, the petitioner had been appointed after the
coming into force of the rules framed under the Tamil Nadu Private Schools Regulation Rules and that too, after the amendment and hence, it is
clear that the petitioner do not possess the qualifications prescribed for the post. It may be that such a view may work hardship to the petitioner,
but there is no escape at all. The stand taken by the respondents 1 to 4 deserves acceptance.
Aggrieved by the above order of the learned single Judge, the appellant has preferred the present appeal.
Heard Mr. C. Selvaraju learned Senior Counsel appearing for Mr. G. Jeremiah, learned Counsel for the appellant and Mr. M. Sekar, learned
Special Government Pleader appearing for the respondents 1 to 4.
Mr. Selvaraju, learned Senior Counsel for the appellant, while assailing the order of the learned single Judge, has contended that the point for
consideration before this Court is whether the Tamil Nadu Minority Schools (Recognition of Payment of Grant) Rules, 1979 is a rule framed under
the Act or is an executive instruction. He has pointed out that after passing of Act, the field of education regarding private schools has been
occupied by legislation and the executive instruction has no power and therefore, the Tamil Nadu Minority Schools (Recognition and payment of
grant) Rules, 1979 is not an executive instruction.
According to the learned Senior Counsel, the Rules were framed after a judgment in W.P. No. 295 of 1975 dated 27.01.1975 wherein a
Division Bench of this Court has struck down several provisions of the Act as not applicable to minority institution and thereafter, special rules
were framed to regulate minority institutions. He has pointed out that Section 6 of the Act provides for grant of permission to start schools, Section
11 deals with recognition to schools, Section 14 deals with payment of grant, Section 3 empowers to regulate stages of education and Section 56
empowers the Government to frame rules.
The learned Senior Counsel has argued that the finding of the learned single Judge that the minority rules are executive instructions is incorrect
because the minority rules have been framed only u/s 56 of the Act and when the field of education has been occupied by legislation, no executive
instruction can be issued. He has also pointed out that the reasoning given in paragraph 40 the order by the learned single Judge for distinguishing
the judgment reported in Mrs. Jemima Vs. The State of Tamil Nadu and 3 others, is factually incorrect and in that case, the petitioner was
appointed on 05.09.1979 after passing of G. O. Ms. No. 564, Education dated 20.03.1978 and the finding of the learned single Judge that the
appointment was prior to G.O. Ms. No. 564 is factually incorrect. In fact, the appellant was appointed as Secondary Grade teacher on
02.06.1997 i.e. after passing of the Government Order and continues in the post. Therefore, the case of the appellant herein and Mrs. Jemima''s
case are identical.
Per contra, Mr. M. Sekar, learned Special Government Pleader ( Education) has contended that the approval sought is under the Act and the
Rules framed thereunder and this being a statutory rule, unless and until the appellant satisfies the required qualifications, her appointment cannot be
approved. Rebutting the argument of the learned Senior Counsel for the appellant, the learned Special Government Pleader has pointed out that
the approval is not under the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, which enables the minority schools
for being assessed to grant. However, he has admitted that in the Minority Schools (Recognition and Payment of Grant) Rules, 1977, the provision
continued without amendment but that would not enable the appellant to claim approval of appointment or approval being granted after amendment
of the Rules.
The learned Special Government Pleader has strenuously contended that the scope of the Tamil Nadu Minority Schools (Recognition and
Payment of Grant) Rules, 1977, is for assessing the grant only and merely because the appellant possesses the qualification prescribed in the said
Rules, she will not be entitled for appointment or approval for her appointment as she does not possess the requisite qualifications prescribed under
the Act and the Rules framed thereunder which will prevail over the rules of Tamil Nadu Minority Schools (Recognition and Payment of Grant)
Rules and the Government Order enables only those teachers who have already been appointed to be continued and their being assessed for
payment of grant.
It is seen from the findings of the learned single Judge that Rule 15 provides for qualifications, conditions of service of teachers and other
persons as well as for promotion. Annexure I to Rule 11(3) read with Annexure I provides for payment of grants from State funds towards Staff
Grant, Maintenance Grant, etc. Further, Rule 19 read with Annexure III prescribes the procedure for payment of pay and allowance to teachers
and other persons employed in private schools. Annexure V prescribes the qualifications for appointment as teachers in private schools. In the
present case, we are concerned with the post of Secondary Grade teacher.
Now, the point which arises for consideration is whether the appellant is qualified in accordance with law with reference to her date of
appointment after the passing of G.O. Ms. No. 564 Education Department dated 20.03.1978. In this case, the appellant was appointed as
Secondary Grade teacher on 02.06.1997 and it has to be decided whether her appointment is valid and she is entitled to have approval of her
appointment.
Since the learned single Judge has distinguished the judgment in Mrs. Jemima''s case, it would be proper for us to go into the relevant portion
of the same which is relevant for our consideration.
That apart, assuming that the Government as a policy decision decided to abolish the Higher Grade Teachers with an avowed object to improve
the standard of education and to enable the teachers to improve their qualifications suitably as mentioned above, unless and until the qualifications
prescribed under clause 3 of Annexure III to the Minority Schools (Recognition & Payment of Grant) Rules read with 8 of the said rules are
suitably amended by the Government. I am of considered opinion, the petitioner, who is having the necessary qualification for the post of
Secondary Grade Teachers and having been appointed as Secondary Grade Teacher in the fourth respondent minority school, she cannot be
deprived of her salary payable to the Secondary Grade teachers merely because she has not completed her in-service training and she is entitled to
the salary payable to the Secondary Grade teachers continuously until the suitable amendments are made in the qualifications prescribed for the
Secondary Grade Teachers under the Rules.
For the reasons stated above, while upholding the G.O. Ms. No. 56 4, Education dated 20.03.1978, I am obliged to hold that the said G. O.
Ms. No. 564, Education, dated 20.03.1978 is not applicable to the minority institutions unless and until suitable amendments are made to Clause 3
of Annexure III to the Minority Schools (Recognition & Payment of Grant) Rules read with Rule 68 thereof and the respondents are, therefore
directed to continue to pay to the petitioner the salary payable to the Secondary Grade teachers until necessary amendments are made to the Rules
as stated above. The respondents are further directed to pay the entire arrears of salary, at the scale of pay applicable to the Secondary Grade
teachers, payable to the petitioner with effect from 01.07.1986. The respondents shall pay the entire arrears of such salary within three months
from the date of receipt of copy of this order and shall continue to pay to the petitioner salary as that of the Secondary Grade teacher until suitable
amendments are made in the Rules as stated above.
From a reading of the above decision, it is made clear that unless and until the Rules are amended, a person who has been appointed and who
possesses the requisite qualification has to be continued to be paid his regular benefits.
Further, the finding of P.D. Dinakaran, J. in Mrs. Jemima''s case, that qualification as found in the Tamil Nadu Minority Schools ( Recognition
and Payment of Grant) Rules will be sufficient for all purposes and that a teacher appointed should possess the qualifications as prescribed in the
Grant Rules will be extended to equal wages as per the rules, in our view, holds good, to the case on hand. Moreover, for a person employed in a
minority institution, Annexure III read with Rule 8 of the Minority Schools (Recognition and Payment of Grant) Rules is applicable to him. This
view of P.D. Dinakaran, J. has not been accepted by the learned single Judge whereas the position of the Rules as well as the facts of Mrs.
Jemima''s case are identical to the facts of the case on hand. As such, we endorse the view of P.D. Dinakaran,J. and we find no reason to
distinguish Mrs. Jemima''s case with the present one and we differ from the view of the learned single Judge that P.D. Dinakaran J. has not
considered the scope of the statutory rule as against an administrative order. In our view, the Rules relied on by the appellant cannot be construed
as an executive instruction.
In view of the foregoing, in our considered opinion, since the appellant has possessed the requisite qualification prescribed in Rule 15(6) and
Annexure V to the Rules and taking into account the effect of the commencement of the rules in force, the order of the learned single Judge is a
misconstrued one and as such, it is liable to be set aside. Accordingly, it is set aside and the appeal stands allowed. No costs. Consequently,
connected C.M.P. Nos. 5193 and 5194 of 2000 are closed.