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Judgment
N. Paul Vasanthakumar, J.—Prayer in this writ petition is to quash the proceedings of the Director of School Education, Chennai-6, the first
respondent herein, made in Na.Ka. No. 51525/T1/2/05, dated 4.4.2006, and direct the respondents to approve his appointment in the post of
junior grade B.Ed. Teacher with effect from the date of his first appointment on 2.6.2004, if necessary by relaxing the rules if any stands in its way,
and consequently disburse all the service and monetary benefits due to the petitioner with effect from the date of first appointment namely 2.6.2004
and pay the arrears within a short date that may be fixed by this Court.
The brief facts necessary for disposal of the writ petition as stated in the affidavit are as follows.
(a) Petitioner was appointed as Junior Grade B.Ed Teacher in the third respondent School with effect from 2.6.2004. He passed B.Sc.(Geology),
M.Sc. (Geology), B.A.(History), M.A.(History) and B.Ed degrees. In B.Sc., petitioner studied Physics and Chemistry as ancillary subjects and in
B.Ed, he studied English and Social Science as subjects.
(b) Petitioner was appointed in the third respondent School as Secondary Grade Teacher in an unsanctioned post for which salary was paid by the
Parent-Teacher Association and he has worked as such for eight years. Petitioner continued in the said post on the fond hope that whenever
vacancy arises, he will be absorbed by the third respondent School and he can get salary from the respondents 1 and 2 on approval.
(c) Petitioner states that one post of Secondary Grade Teacher fell vacant on 1.3.2004. The management applied for grant of permission to fill up
the said post and the second respondent by order dated 4.5.2004 granted permission to fill up the post by a Junior Grade B.Ed Teacher.
Consequently, petitioner was appointed in the said post on 2.6.2004 and he has been working in the third respondent School, but without getting
salary.
(d) On 2.7.2004, the management submitted a proposal for approval before the second respondent. However, the proposal was returned on
30.7.2004 by the second respondent stating that the petitioner being a graduate in Geology, he cannot be appointed as B.Ed. Teacher since the
subject does not fall within the curriculum of teaching Junior Grade B.Ed Teacher. The said action of the second respondent being contrary to the
statutory rule, the management re-submitted the proposal and stated that the petitioner studied ancillary subjects of Physics and Chemistry and
therefore he is able to handle classes and requested the second respondent to approve the appointment of the petitioner, citing previous instances.
The second respondent again on 30.12.2004, declined to approve the appointment citing the circular of the first respondent dated 26.10.2004 and
stated that while filling up the vacancy of Junior Grade B.Ed Teacher for classes VI to VIII, the area of discipline has been restricted only to
Maths, Science, English, Chemistry and History and 20% History posts could be filled up by Geography graduates.
(e) After the said order, the petitioner approached the Annamalai University wherefrom he obtained degree, to clarify as to whether the petitioner
is competent to conduct classes in Geography for classes VI to VIII. The Registrar of Annamalai University certified that the petitioner is
competent to undertake classes in the said subjects. The management also submitted a representation to the first respondent on 29.2.2005 and
stated that the circular issued by the first respondent on 26.10.2004 is not applicable to the petitioner''s case because on the date of his
appointment on 2.6.2004, no circular was in force and therefore as per G.O.Ms. No. 125 School Education Department dated 12.11.2003, any
graduate can be appointed as Junior Grade B.Ed Teacher and therefore the said circular is not applicable to the petitioner. (f) The proposal was
again re-submitted to the second respondent, which was also returned on 2.6.2005. Thereafter, third respondent management submitted a
representation to the Joint Director of School Education on 7.6.2005 and the first respondent by his proceedings dated 9.8.2005 sought for
clarification from the Government as the petitioner has already obtained evaluation certificate from the Annamalai University. In spite of the same,
no action being taken, petitioner filed W.P. No. 2378 of 2006 and prayed for issuance of a writ of mandamus to approve the appointment of the
petitioner with salary and other benefits. This Court, taking note of the statutory rules and the prescription of qualification under Annexure-V-A
under the Tamil Nadu Recognised Private Schools (Regulation) Act, by order dated 13.3.2006 held as follows.
In view of the submission made by the learned Counsel for the petitioner, the respondents 1 and 2 are directed to consider the proposal sent by
the 3rd respondent on 24.2.2005 in respect of the approval of the appointment of the petitioner to the post of Junior Grade B.Ed Teacher in the
third respondent-school and pass orders in accordance with the above said Rules framed under Tamil Nadu Recognised Private Schools
(Regulation) Rules, 1974 regarding approval within a period of four weeks from the date of receipt of a copy of this order.
The first respondent, after the above order of this Court, passed the impugned order on 4.4.2006 stating that the petitioner''s appointment is in
violation of the circular dated 26.10.2004 issued by the first respondent and the same cannot be approved. The said order is challenged in this writ
petition.
The learned Counsel appearing for the petitioner submits that Annexure-V-A of the Tamil Nadu Recognised Private Schools (Regulation) Rules,
1974 clearly states that a Junior Grade Teacher must possess B.A. or B.Sc., with B.Ed degree and no amendment is issued to the said rule or
Government Order to appoint Junior Grade Teachers by subject-wise rotation. The learned Counsel also submitted that the petitioner having been
appointed on 2.6.2004, long before the circular dated 26.10.2004, issued by the first respondent introducing subject-wise rotation, his
appointment is bound to be approved as the said circular cannot be applied retrospectively. The learned Counsel also submitted that the impugned
order is passed in violation of the directions issued by this Court in W.P. No. 2378 of 2006, wherein the respondents are specifically directed to
follow the statutory rule and pass orders.
The learned Counsel for the respondents submitted that the petitioner having been appointed as Junior Grade B.Ed Assistant, his appointment is
governed by G.O.Ms. No. 125, School Education Department, dated 12.11.2003 and the first respondent issued circular on 26.10.2004 for
implementing the said Government Order as to how the post shall be filled up and hence there is no illegality or impropriety in the impugned order.
I have heard the learned Counsel for the petitioner as well as the learned Counsels for the respondents.
The point in issue is whether the petitioner is entitled to be appointed as Junior Grade B.Ed Teacher as on 2.6.2004 and whether the
respondents 1 and 2 are bound to approve the petitioner''s appointment from the said date.
The Junior Grade B.Ed Assistant posts are created by the Government by G.O.Ms. No. 125 School Education Department, dated 12.11.2003
and the same is also incorporated by amending the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, wherein in Annexure-V-A
prescribes the following qualification for the Junior Grade B.Ed Teacher for High Schools and Higher Secondary Schools,
B.A. Or B.Sc. Of any University in the State or its equivalent and B.T. Or B.Ed.
Neither in G.O.Ms. No. 125 dated 12.11.2003 nor under the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, it is stated that
the posts in the private schools shall be filled up by subject-wise rotation. The second respondent also granted permission to fill up the post for
appointing the Junior Grade Teacher to the third respondent, pursuant to which the petitioner was appointed on 2.6.2004.
In W.P. No. 2378 of 2006, by order dated 13.3.2006, this Court directed the respondents 1 and 2 to consider the proposal sent by the third
respondent on 24.2.2005 in respect of the approval of appointment and pass orders in accordance with Annexure-V-A(1)(1) of the Tamil Nadu
Recognised Private Schools (Regulation) Rules, 1974, within four weeks. The impugned order is passed by the first respondent wherein the said
Annexure-V is not at all considered and the circular issued by the first respondent dated 26.10.2004 alone is relied on. G.O.Ms. No. 125 School
Education Department dated 12.11.2003 also does not contain any prohibition in appointing B.T./B.Ed Assistants, Junior Grade Assistant
(Geography) or direction is issued to the management to fill up the post by subject-wise rotation. In the absence of any such direction the first
respondent is not justified in denying approval of the petitioner''s appointment.
G.O.Ms. No. 4 dated 19.1.2004 also contemplates the mode of appointment of the teachers with salary for five years and no direction is issued
to appoint subject-wise teachers. Admittedly, statutory rule viz., the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, Annexure-
V issued under Rule 15(6-A) is not amended till date.
The Honourable Supreme Court in the decision reporte in AIR 1989 SC 1133 (State of Maharashtra v. Jagannath) at para 6 held that
executive instructions cannot restrict operation of the statutory rule. Para 6 reads thus,
The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in
class of cases. Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating ""the
conditions of service of Government servants; or of any class thereof"". The exercise of this power, the Government could dispense with or relax
the operation of any rule, if it causes undue hardships in any particular case. It is needless to state that this power includes the power to relax the
conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion.
The High Court, however, has observed that the scope of this power has been constrained by the circular dated 15th January, 1962. The circular
states that the 1955 Rules permitting relaxation cannot be utilised to relax the rules which regulate conditions of service. It further states that the
scope of the Rules should be limited only to matters relating to traveling allowance, leave, etc. But this appears to be an exercise in vain. The
circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article of the Constitution. The
Government could not have restricted the operation of the statutory rules by issuing the executive instruction. The executive instruction may
supplement but not supplant the statutory rules. The High Court was in error in ignoring this well accepted principle.
Since the statutory rule nowhere states that B.Sc. (Geology) degree is not a valid qualification for appointment to the post of Junior Grade
B.Ed. Assistant and having regard to the Certificate of Equivalence issued by the Annamalai University stating that the petitioner is eligible to take
classes for Geography to School Students and the petitioner having studied Physics and Chemistry subjects as ancilliary subjects in B.Sc., degree
there is no impediment in approving the petitioner''s appointment, who can very well take classes for the students of VI to VIII standards.
For the above reasons, the impugned order dated 4.4.2006 is set aside. The second respondent is directed to approve the appointment of the
petitioner from 2.6.2004 since the petitioner has satisfied the conditions prescribed in Annexure-V A of the Tamil Nadu Recognised Private
Schools (Regulation) Rules, 1974, and pass orders to that effect within a period of four weeks. The arrears of salary payable to the petitioner shall
be paid to him within a period of eight weeks from the date of receipt of copy of this order.
The writ petition is allowed with the above direction. No costs. Connected miscellaneous petitions are closed.