Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School vs The State of Tamil Nadu and Others

A. Kulasekaran, J.—The Appellants/Petitioners before this Court are either Private Educational Institutions or B.Ed.,/Graduate Tamil Pandits (hereinafter referred to as ''the B.Ed., teachers'') who were appointed in the Secondary Grade Teacher vacancies in Pre-Primary, Primary and Middle Schools run by private managements, which are governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and The Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as ''the Act'' and ''the Rules'').

The common issue involved in all these cases is whether the B.Ed., candidates could be appointed as Secondary Grade Teachers to teach up to VIII Standard for which (1) S.S.L.C (2) T.S.L.C. of Secondary Grade or its equivalent Prescribed by the Act and the Rules, and the G.O. Ms. No. 559 dated 11.7.95 issued by the Government/ Respondent directing the educational authorities not to approve the appointment of B.Ed., teachers in the vacancies of Secondary Grade Teacher is valid or not.

The case of the Appellants/ Petitioners is that B.Ed., is higher qualification and that the Respondents treated it as higher qualification than the Secondary Grade Teacher Training prior and subsequent to G.O. Ms. No. 539 dated 21.4.1986 as well as G.O. Ms. No. 559 dated 11.7.95, that the Respondents accorded in piecemeal the permission to appoint on various occasions the B.Ed., teachers as Secondary Grade Teachers under the pretext of clearing back-log vacancies in terms of communal reservations or for teaching particular subjects or to fill up vacancies in particular institutions run by government bodies.

The case of the Respondent is that the right to fix the qualification for appointment of teachers in the institutions run by both the minority and non-minority vests with the Government and the Government after careful consideration and upon receipt of the report from various experts prescribed qualifications in Annexure V to Rule 15(6). It is also the case of the Government that the Secondary Grade Teachers are given special training in child study, to enable them to teach pupils up to VIII Standard and the training given to B.Ed., is different.

The point for consideration is, whether the qualification B.Ed., is a requisite qualification to be appointed as Secondary Grade Teacher for teaching the students up to VIII standard for which the qualification is S.S.L.C & T.S.L.C. of Secondary Grade or its equivalent.

The facts relating to all cases including other Writ Appeals and fresh Writ Petitions are similar as mentioned below:

The G.O. Ms. No. 539 dated 21.4.86 was passed by the Government permitting the appointing authority to fill up the vacancies of Secondary Grade Teachers by obtaining the list of B.Ed., from the employment exchanges when actually there were no Secondary Grade Trained Teachers available in the live register or employment exchanges subject to the conditions mentioned therein.

Subsequent to G.O. Ms. No,539 dated 24.1.86, some of the B.Ed. teachers who are appointed in the Secondary Grade Teacher vacancy had approached the authorities through their institutions for approval. But the authorities refused to confer approval on three grounds inclusive of the ground that B.Ed., teachers should not have been appointed in the vacancy of Secondary Grade Teachers. The aggrieved persons had filed writ petitions which were dismissed by Kanakaraj J. on 8.12.94 by a common order holding that the said B.Ed., teachers did not possess necessary or requisite qualifications prescribed in Annexure V of Rules. Paras 4 and 6 of the judgment of Kanakaraj, J., which is extracted as follows:

The argument of the counsel for the respective Petitioner is based on the assumption that a B.T. or B.Ed., qualified teacher is better required for the Secondary Grade Post. In my opinion, and as will be seen later, this is a mis-apprehension and it is misnomer to call the B.T., or B.Ed., candidates as better qualified candidates. The qualifications for appointment as teachers in accordance with Rule 15(6) of the Rules are contained in Annexure V to the Rules. I will extract the qualifications for the post of B.T. Assistants and for the post of Secondary Grade Teachers. They are as follows:

B.T. Assistant: B.A., or B. Sc, or its equivalent; and B.T., or B.Ed., or L.T., and Trained Teachers'' certificate to Collegiate Grade.

Secondary Grade: 1. S.S.L.C.

Teacher: 2. T.S.L.C. of Secondary Grade or its equivalent.

It will be thus seen that for the post of Secondary Grade Teacher, a candidate must have passed the S.S.L.C. and should have training as prescribed in T.S.L.C, of Secondary Grade or its equivalent. The training that is equivalent is contemplated for the Secondary Grade post is T.S.L.C. or its equivalent and it has to be remembered that this training is specially meant for the children belonging to the lower standards. The syllabus for this training is totally different from the syllabus, for the B.T. or B.Ed., or trained teachers certificate of the Collegiate Grade. This important aspect of the case has to be borne in mind before calling the B.T. or B.Ed., trained teachers as better-qualified teachers. The proper way to call them is to say that they are trained to teach students of a higher class whereas the Secondary Grade Teacher is trained to handle students of the lower class. This distinction cannot be belittled because it is well known that a different technique and approach is necessary to deal with young children and a totally different approach can be adopted while handling older students. This can easily be illustrated by the fact that for handling children below five years, the Educational Authorities normally insist on a special training to take care of children. Such a teacher would be required to know the behaviour of the children and kinder garten methods to bring up the children. Therefore, it is totally improper to say that a B.T., or B.Ed., qualified teacher can be equated to a T.S.L.C. Training and eligible for teaching classes at the Secondary Grade level. In other words, as Mr. Muthukumarasamy, learned Special Government Pleader for the State argues that the appointed teachers in the respective schools do not have the ''required'' qualified for the post of Secondary Grade Teachers.

...learned Special Government Pleader has also referred to the syllabus as to the difference in training in the B.T. or B.Ed., course as compared to the T.S.L.C. Secondary Grade Training According to him, the latter is a two year course whereas former is only one year course which can be even taken by correspondence. He, therefore, emphasises the fact that the training required for a Secondary Grade Post is important and cannot be brushed aside lightly. I agree with this contention of the Respondents. Consequently, I hold that the writ Petitioners in these writ petitions do not have necessary qualifications prescribed for the post. Equally, I do not accept the contention that the Petitioners are better qualified for the post. The Respondents also pointed out that there are as many as 59,000 Secondary Grade Teachers waiting for appointment; Mr. Joseph Thatheus Jerome, appearing for the Petitioner in W.P. No. 12765 and of 1992, has adopted the argument of Mr. R. Gandhi and further contends that in respect of appointments already made, they should not be re-opened on the basis of my judgment This contention cannot be accepted because I am only declaring the law, and I am only concerned with the impugned orders refusing to approve the appointment of certain teachers who would have necessary qualifications as prescribed by the Annexure V of the Rules. Appointments approved by the authorities should not be re-opened.

Aggrieved by the order of Kanakaraj. J. some of them have filed writ petition W.A. Sr. No. 81033 of 1995 dated 14.11.95 before the Division Bench. In the meanwhile G.O. Ms. No. 559 dated 11.7.95 was passed by the Government of Tamil Nadu.

Consequently, the Division Bench has dismissed the said writ appeal with liberty to challenge G.O. Ms. No. 559 dated 11.7.95. The batch of writ petitions filed by B. Ed, teachers/the Institutions including the writ petition filed by the said aggrieved persons who were granted liberty to challenge the said G.O. were considered and dismissed by S.S. Subramani, J. by common order dated 19.5,98 upholding the validity of G.O. Ms. No. 559 in confirmation of the order passed by Kanakaraj, J. The judgment is challenged in various appeals and the writ petitions challenging the G.O. Ms. 559 have been tagged along with the appeals. Before we proceed to consider the rival contentions it would be better to see the findings of the learned Judge. The relevant portion of the learned Judge is extracted below, where the learned Judge has given interse comparison of B.Ed. & TSLC course with reference to the syllabus.

The revised regulations & syllabus for degree of Bachelor of Education (B. Ed.,) from the year 1388 onwards issued by University of Madras was brought to my notice. Counsel for the Petitioners have also extracted the syllabus in their typed set of papers. It is seen there from, that the course of study shall be for the duration of one academic year, consisting of 180 working days providing for 900 hours of course work at 5 hours a day. The course of study consists of:

(A) Educational Subjects:

(B) Teaching Competence; and

(C) Educational Practical

Under the course of study of

Educational subjects, there are three common subjects. They are:

(1) Educational Challenges in the Emerging Indian Societies;

(2) Psychology in Education; and

(3) Educational innovation.

Apart from the same, a student teacher has also to opt for two optional papers from out of 21 subjects provided therein. Under the common subject-Psychology in Education, the objectives are stated to be

(a) to enable the students to understand the basic concept of Educational Psychology;

(b) To initiate students in psychological experiments; and

(c) To help them apply psychology to class room situations.

With the above object, training is given, the subjects that are taught to achieve the objects of Psychology in Education are:

I. HATOPE OF EDUCATIONAL PSYCHOLOGY: The Local areas of Educational Psychology-The Learner, Learning process, Learning situations-significance of Educational Psychology to the teacher.

II. PRINCIPLES OF HUMAN GROWTH AND DEVELOPMENT: Interaction of nature and nature-Concept of growth and maturity-Development characteristics and trends-Development talks and education.

III. COGNITIVE DEVELOPMENT: Development of mental abilities.

Attention-Factors and kinds of attention -Inattention and distraction span of attention. Sensation and perception - Factors in Perception -Errors - Concept formation - placet''s stages of cognitive development - Concept maps Languages.

IV. ADOLESCENT: Special characteristics of adolescents and their problems - Attitudes, interests, group behavior - Discipline - Leadership.

V. LEARNING: Nature and importance of learning - Individual in learning - Individual in learning - Learning curves - Transfer of learning -Learning styles - Factors in learning - Types of learning - Trial and error - Conditioning - ''classical and operant - Learning by insight - Imitation -Levels of Learning - Gagna - Remembering and forgetting - Learning: Disabilities.

VI. MOTIVATION: Motivation - Maslow''s hierarchy of needs - Role of rewards and punishments. Level of aspiration - Achievement motivation - Goal as a motivational factor.

VII. INTELLIGENCE AND CREATIVITY: Nature of Intelligence - Theories of intelligence - Assessment of intelligence - IQ constancy _ Distribution Uses of intelligence tests - creativity - Creativity and intelligence -Identification and promotion of creativity.

VIII. PERSONALITY: Meaning personality - Factors influencing personality -Assessment of personality - integrated personality.

IX. MENTAL HEALTH AND HYGIENE: Concept of Mental health and hygiene - Conflict and frustration - Unrest - Adjustment -Defence mechanisms - Mental illness - Guidance and counselling. (Experiments relevant to the units to be demonstrated in the class.

The course of Study in Teacher Education Curriculum ,which is a two years course, consists of four groups. Group-A. Pedagogical theory consists of

(1) Education in Emerging India and Educational Management: and

(ii) Educational Psychology and Child study. It is also to be noted that in teacher education Curriculum ,special attention is given to Content-cum-Methodology under Group-B- 1, by teaching Mathematics (Standards I to V). Environmental studies (standards I to V), science and social science. Such Of those students-teachers are given training with a separate object to teach at the primary and middle school level. The same is clear from the syllabus for Teacher Education Curriculum ,issued by the Government of Tamil Nadu. The National Policy on Education 1986 and the programme of Action, 1986 have given importance to the Universalisation of Elementary Education. The objectives of Teacher Education Programme at the primary and middle school schemes read thus:

The main objective of the programme is to develop specialized knowledge and skills with regard to content and methodology. Psychology of early childhood, Management of Education, issues relating to the education in emerging India etc., Play way methods and the use of environment in learning are to be emphasized at the primary stage.

The trainee should develop the following skills and competencies.

(1) Competencies in the languages (Tamil and English) Mathematics and in the functional concept of Natural and Social science related to the environment.

(ii) Skills to identifying, selecting and organizing learning experience for teaching in both formal and non- formal situations.

(iii) Sufficient theoretical and practical knowledge of health, physical and recreational activities, work experience, arts and music and skills for conducting these activities.

(iv) Understanding the Psychological principles underlying the growth and development of the children and also acquiring theoretical and practical knowledge about childhood education.

(v) Understanding the role of the home, the poor group and the community and the role of school and teachers in society.

(vi) Understanding the major principles which help in promoting cognitive, psychomotor and attitudinal learning.

In the first year (Part-A), Educational Psychology and Child Study is given much importance and the same is divided into VII units. The various objectives of the Child Study read thus:

To apply the knowledge of psychology to individual behavior.

To understand the various methods of child study.

To develop and understanding of the influence of Heredity and environment on children.

To enable the teacher trainees to understand the developmental charges and the consequent changes in behavior.

To enable the teacher trainees to understand the developmental charges and the consequent changes in behavior.

From the course of content, it is dear that a detailed approach is given to the teacher trainees regarding the child behavior, its mental growth and how the child respond to the coaching Psychology deals with general principles of behavior as well as differences in behavior, Psychological experiments, growth and development concepts, effects of heredity and environment on the growth and development of children, Educational implications of the nature-problem, basic characteristics of development, which includes growth of mental powers and parallel increase in the amount of knowledge, development of emotions, psychological needs of Security, love, affection and freedom, defence mechanism, role of home and school, nature of emotions, the consequential problems due to lack of affection and social and moral development of children etc.

In second year also, similar studies are given, where also, the course content is divided into VII units. Even in the second year, the student trainee has to acquaint himself in the concept of Intelligence and to gain the practical knowledge of creativity, like flexibility in thinking sensitivity to problems, steps in problem solving, case of exceptional children. Identification special needs of the gifted, under achievers, also-learners, emotionally disturbed children, physically handicapped and mal-adjusted children, importance of individual attention and sympathetical understanding, need for guidance i.e., Guidance at primary level areas of guidance educational, vocational and personal, to understand the causes of deviant behavior in children and evolve remedial measures, and to understand the factors ceasing socially deviant behavior.

A reading of the said syllabus makes it clear that Secondary Grade teachers while undergoing the course are imported training with special attention to children up to VIII standards. In Graduate training course, child study is not given that much of importance, though some portions of the syllabus of Teacher Education Curriculum are also included in the subject-Psychology in Education. The child study is not given much importance in graduate training and he also not passing any examination on the same. It is further seen that student - trainees in Teacher Education Curriculum have to write two examinations in Educational Psychology and child study in both the years and has also to write examinations on school subjects pertaining to Standards I to VIII.

If we go by the syllabus pertaining to B.Ed., and the Teacher Training Curriculum, it is clear there from that even though both are teacher training courses, they are intended for different purposes. Secondary Grade Teacher Training Course is intended to coach students up to Standards VIII, and the Graduate teacher training course is intended to teach the students of higher classes. He must also understand that the authorities make use of the words "child", while making regulations and syllabus for Secondary Grade Teacher Training Course, they make use of the words "student". It, therefore, follows that the Secondary Grade Teacher Training is concerning the mental and intellectual development of child up to VIII standards, and the Graduate Teacher Training is concerning with the intellectual development of grown-up children. On going by the order of the learned Judge it lis seen that the learned Judge has considered this question, which I have already extracted. None of the counsel was successful in putting forwards an argument against the finding of the Learned Judge on this point. No other material is also placed, except for the production of a book in Educational Psychology by Dr. P.S. Chandrakumar, for which reference has already been made by me. In that book reliance was placed on Chapter 11 (PIAGET''S THEORY OF INTELLECTUAL DEVELOPMENT), only to bring to the notice of the court that in B.Ed., course also, the intellectual development of a child is also one of the subjects they have to study. As I said earlier, even if the child study is a chapter in Teacher Training Course to collegiate Grade, it is a specialised subject in so far as the Secondary Grade Teacher training is concerned. As rightly held by the learned Judge, ''the proper way to call them (B.T., or B.Ed., or Trained Teachers Certificate to Collegiate Grade) is to say that they are trained to teach students of a higher class whereas the Secondary Grade Teacher is trained to handle students of the lower class'' Learned Judge has also rightly held that ''such a teacher would be required to know the behavior of the children and kinder garten methods to bring up the children.

It will, therefore, be seen that there is basic difference in the two courses. It was tried to be argued that the child psychology is taught in B.Ed., course also and, therefore, that course is comparable to TSLC course. We do not agree. What is to be noted is that in B.Ed., course the students are taught to deal with entirely different age group, which though adolescent is much more matured than the primary school students who are small, immature and innocent. Therefore, the very approach would be different in these two courses.

The learned Counsel Mr. Issac Mohanlal argued that there is no provision either in the act or in the Rules to say that a graduate teacher is not eligible for teaching the students up to VIII standard, or to suggest that the said students would be taught only by the Secondary Grade Teachers; that G.O. Ms. No. 539 dated 21.4.86 and G.O. Ms. No. 559 dated 11.7.95 are inconsistent with the Act and rules; that imposing any restriction of appointment of B.Ed., teachers in the Secondary Grade vacancies is violative of Article 14; that G.O. Ms. No. 559 was issued by the Government without independent application of mind, but only following the judgment of Kanakaraj, J.; that B. Ed, qualification is higher qualification and the Government has been recognised it on various occasions which is evident in the G. Os. issued by them prior and after the impugned G.O; that the Government has not assigned any valid reasons or shown any efforts taken by them resulted in issuance of the impugned G.O. learned Counsel Mr. Paul Vasanthakumar has placed arguments attacking the impugned G.O. and pointed out, no policy has been expressed in the said G.O., that the Appellants/Petitioners before this Court were appointed in the sanctioned posts, that consequent to the judgment of S.S. Subramani, J. the appointments of B Ed. Teachers were not approved with the result most of them are paid meagre salary or working even without salary. Mr. Chandru learned Senior Counsel argued that the intention of the state is only quality education whileso the conditions imposed under impugned G.O. work out adversely, that the impugned G.O. is made applicable only to the private schools where the medium of instruction is Tamil, but not made applicable to Government Schools, Anglo Indian Schools and Matriculation Schools which are large in numbers is Tamil Nadu; that the most of the private Elementary and Middle Schools have appointed only B.Ed., teachers from 1974 to 1994; that the appointment of B.Ed., teachers in the Secondary Grade vacancies were approved by the State without even any demur during that period; that the impugned G.O. is an outcome of the judgment of Kanakaraj, J. where the judicial wisdom alone visible; that Justice Mohan Commission has recommended the appointment of graduate teachers to teach English in Elementary and Middle School level; that CBSE, is appointing only B.Ed., grade teachers in Elementary and Middle Schools run by them in Tamil Nadu and also throughout the country; that the syllabus of B.Ed., is inclusive of syllabus of Secondary Grade; that the B.Ed., teachers are taking classes to the trainees of Secondary Grade; that the operation of G.O. Ms. No. 559 was stayed by this Court and many of the B.Ed., teachers were appointed in the Secondary Grade vacancies; that the Tamil Nadu Subordinate Service Rule was issued under Article 309 which is applicable to the teachers and other employees of schools which are run by the Government and the local bodies; that under Rule 48 of the Tamil Nadu General Rules, there is a power to exempt; that Section 20 was amended by Tamil Nadu Act 11/99 in May 1999 thereby Sub Clause 3 was added thereby powers of the Government by general or special order whether prospectively or retrospectively exempt any person or class of persons from possessing the qualification prescribed u/s 19 relating to age and experience for appointment as teacher or other employee in any private school, subject to such condition, if any, as may be specified in such order, that therefore, the government can change the qualifications cope with present education, but the Government went on granting approval of the appointment of BT and Tamil Pandits in middle and primary schools indiscriminately without following any norms; that G.O. Ms. No. 510 dated 26-05-1992 issued by the Government permitting the management to appoint the Tamil Pandits working in B. Ed., scale in the vacant of Head Masters in Middle school, if no such secondary grade or other teachers qualified for B. Ed./Tamil Pandits is in service on the date of which the vacancy arises, such vacancy shall be filled up by appointing the B.Ed., teacher/Tamil Pandit from the open market or by transfer from another Managements as Headmaster and some of the teachers were also appointed based on the said G.O.; that similarly, G.O. Ms. No. 189 dated 04-06-1998 was issued by the Government of Tamil Nadu to convert 100 Secondary Grade Teachers post into B.Ed., permanency in Panchayat Union Middle Schools; that the Government never implemented and observed any policy, that the said government action are violative of Article 14 and according to the Senior Counsel, the impugned G.O., is deserved to be quashed. The learned Senior Counsel Mr. N.R. Chandran argued that the Government for the first time, that too, in their counter in W.P. Nos. 10462/91,12765 and 14118/92 insisted the Secondary Grade qualification to teach up to VIII standard; that the B.Ed., is higher qualification. The other learned Counsel argued on the same lines and vehemently attacked the impugned G.O. and brought to our notice that the Government approved the appointment of B. Ed., teachers in the vacancy of secondary grade on various occasions under the pretext of clearing backlog vacancy in terms of communal reservation or appointing them to teach some special subjects like maths and science or permitted some of the schools run by government bodies and as such G.O. Ms. No. 559 is said to have been caused inconformity with G.O. Ms. No. 539 dated 24.1.86 is bad in law. The preference of lesser educated over highly qualified persons is amount to allowing premium on incompetence which would result in inefficiency. The Respondent government was inconsistent in implementing the rules relating to the appointment of Secondary Grade Teachers prior and after G.O. Ms. No. 559 dated 11.7.95. On the contrary, the government was consistent in recognising B.Ed., as higher qualifications than the Secondary Grade Teachers which is evident in granting increments to the Secondary Grade Teachers on acquiring the qualification of B.Ed., etc., The syllabus of B.Ed., teacher is inclusive of the syllabus of Secondary Grade Teacher Training, whileso the prohibition imposed under G.O. Ms. No. 559 dated 11.7.95 from appointing B.E. teachers as Secondary Grade Teacher is unreasonable.

The learned Additional Advocate General appearing for the Respondent argued that the right to fix the qualification for appointment of teachers in the institutions run by both the minority and non-minority vests with the Government and the Government after careful consideration and upon receipt of report from various experts prescribed qualifications in Annexure V to Rule 15(6). It is also the case of the Government that the Secondary Grade Teachers are given special training in child study, to enable them to teach pupils up to VIII Standard and the training given to B.Ed., is different, that the relevant provisions prescribing the qualification for the appointment of Secondary Grade Teacher has come into force from 1892, due to the dearth of Secondary Grade Teachers and considering the urgency and also in the interest of the children studying upto 8th standard, the B.Ed., teachers were permitted to be appointed by the private schools as a temporary measure as evident from G.O. Ms. No. 539 dated 21.4.86 but later the Government felt it absolutely necessary to restore the original position in term of Rule 15(6) to appoint only Secondary Grade Teacher training certificate holders in the vacancy of Secondary Grade Teacher with the result G.O. Ms. No 559 dated 11.7.95 was issued and the teachers appointed till 10.7.95 were approved by the Government. It is admitted that the Government after 10.7.95 in some occasions in order to clear the backlog vacancies in terms of communal reservation appointed B. Ed., graduate teachers in the vacancy of Secondary Grade subject to the condition that they must undergo training for a period of one month for child psychology conducted by the District Educational Training Center(DIET) and similarly considering the urgency, the vacancy of teachers in Tamil and Telugu languages in the Secondary Grade Graduate Teachers in the respective languages were appointed with the above said conditions.

It is necessary to look into the G.O. Ms. No. 539 dated 21.4.86.

G.O. Ms. No. 539 dated 21.4.86:

GOVERNMENT OF TAMIL NADU

Abstract

Education-dearth of Secondary Grade Trained teachers-Posts kept vacant in Government and Panchayat Union Schools- Alternative arrangement for filling up the Posts-orders- issued.

EDUCATION(Ml)DEPARTMENT

G.O. Ms. No. 539 Dated21.4.86

From the Director of School Education letter Rc. No. 90171/Ml/86 dated 11.3.86.

ORDER:

The Director of School education has stated that due to dearth of qualified candidates, the local Employment Exchanges are unable to sponsor enough number of Secondary Grade trained teachers for consideration for selection and appointment against the vacancies available in Government and Panchayat Union Schools in their districts and that on account of this, it was not possible for them to fill up the Secondary Grade Teachers vacancies available in schools.

In order to see that education of children studying in such schools does not suffer on account of dearth of Secondary Grade Trained Teachers and to give relief to the un-employed teachers, the Director of School Education has suggested that Government may pass orders permitting the appointing authority concerned to fill up the vacancies of Secondary Grade Teachers available in Government and Panchayat Union Schools by obtaining the list of B.T. and Tamil Pandits from the Employment Exchange when actually there are no Secondary. Grade trained teachers available in the live Register of Employment Exchange subject to the following conditions:

I. While calling for the list of B.T. Teachers or Tamil Pandits from the Employment Exchange for filling up the vacancies available in the post of Secondary Grade teachers, the appointing authority concerned should furnish a certificate in the requisition form of calling for list of candidates itself to the effect that all the candidates possessing Secondary Grade trained qualification already sponsored by the Employment Exchange have been interviewed and considered for appointment against the vacancies available.

II. Vacancies of Secondary Grade Teachers which could not be filled up due to dearth of Secondary Grade Trained candidates be filled by the incumbents Possessing B.T. or Tamil Pandit qualifications, as the case may be in the ratio of 2:1 in the following order or rotation for every three vacancies and subject to fulfillment of all other rules prescribed for the post viz., rule of reservation and age etc.,

1st Vacancy BT

2nd Vacancy Tamil Pandit

3rd Vacancy BT

III. B.T. or Tamil Pandits appointed to a Secondary Grade Teachers vacancy shall be eligible to draw the scale of pay as applicable to the post of Secondary grade Teacher and that they are not eligible to draw any incentive increments or higher scale of pay by virtue of their possessing higher qualification etc.

The Government after careful examination accept the suggestion of the Director of School Education for appointing persons with B.T. qualification and Tamil Pandits training to the post of Secondary Grade Teacher subject to the conditions referred to in Para 2 above.

The Government also direct that the services of all the existing unemployed secondary grade training persons whose names are found in the live Registers of Employment Exchanges be utilised if necessary by relaxation of age limit up to one or two years in deserving cases.

The Government further direct that these orders be made applicable also to the appointment of Secondary Grade Teachers in the aided schools governed by the Tamil Nadu recognised Private School (Regulation) Act, 1973 and the Rules framed thereunder.

The Director of School Education is requested to review that situation with reference to the implementation of the orders in this G.O. and submit a reports the Government at appropriate time for the continuance or otherwise of this arrangement.

/Copy/ Communicated to the under mentioned Officers for necessary action.

As the above orders are made applicable to aided schools which are governed by the Tamil Nadu Recognised Private School (Regulation) Act, 1973 and the Rules framed thereunder, these orders may be brought to the notice of such aided schools managements also for information and action.

The receipt of these proceedings should be acknowledged, by next post.

(Sd)...

Director of School Education.

From a perusal of the said G.O., it is apparent that an alternative arrangement is made for filling up the post due to dearth of Secondary Grade Trained Teachers. The government also expressed its view in paras 1 and 2 of the said G.O. that in order to see that education of the children studying in such schools does not suffer on account of dearth of Secondary Grade Trained Teachers and to give relief to the unemployed teachers, the suggestion of the Director of School Education has been considered and permission was granted to appoint graduate teachers and Tamil Pandits from the employment exchanges subject to the condition that the appointing authority should furnish a certificate in the requisition nom of calling for list of candidates itself to the effect that all the candidates possessing Secondary Grade trained qualified already sponsored by the employment exchanges have been interviewed and considered for appointment against the vacancies available. In para 4 of the said G.O., it is made clear that the government also directed that the services of all the existing unemployed Secondary Grade Trained Teachers whose names are found in the live register of employment exchanges have to be utilised, if necessary, by relaxing of age limit upto one or two years in deserving cases. In para 6, it is pointed that the Director of School Education is requested to review the situation with reference to the implementation of the orders of G.O. and to submit a report to the government at the appropriate time for the continuance or otherwise of this arrangement. This G.O. was made applicable to all the schools run by government and panchayat unions and also private schools governed by the Act.

G.O. Ms. No. 559 DATED: 11.7.1995

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GOVERNMENT OF TAMIL NADU

ABSTRACT

Elementary Education - Appointment of B.T/Tamil Pandits (Decree holders) in the Secondary Grade vacancies in Aided Elementary Schools and Middle Schools - Revised orders -issued.

EDUCATION SCIENCE AND TECHNOLOGY DEPARTMENT

G.O. Ms. No. 559 dated 11.7.95

READ:

G.O. Ms. No. 539, Education dated 21.4.96

From the Director of Elementary Education Lr. Rc. No. 29080/EG3/95 dated 15.3.95.

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ORDER

In W.P. Nos. 10462 of 1991 and 12765 and 14118 of 1992, the High Court of Madras has delivered the judgment relating to the appointment of B.T./Tamil Pandits in the Secondary Grade Posts.

In view of the above judgment, the Director of Elementary Education has requested the government to issue orders on the line so that all such future appointments may be stopped.

The Government have examined the proposals carefully and have decided to accept the proposal of the Director of Elementary Education. The Government accordingly direct that the Director of Elementary Education is requested not to approve the appointment of B.T/Tamil Pandits in the Secondary Grade Teacher vacancies in future in all kinds of schools including minority schools. The Director of Elementary Education is also authorised to communicate a copy of the judgment of the High Court to all subordinate officers with a direction not to approve such appointments.

The G.O. Ms. No. 559 dated 11.7.95 was issued in view of the order passed by the learned single Judge in W.P. No. 10462/91 and 12765 and 14118/92 after examination of the proposal of the Director of Elementary Education not to approve the appointment of B.Ed., in the Secondary Grade Teacher vacancies in future.

G.O. Ms. No. 203 Education (Science and Technology) Department dated 193.96 was also passed by the government ratifying the appointment of B.Ed., teachers in the vacancy of sEcondary Grade Teachers upto 10.7.95.

In Tamil Nadu, the subject of education is covered by both statutory and nonstatutory provisions. Originally, the Tamil Nadu Educational Rule which were framed in the year 1892 covered the subject of education. Subsequently, Madras Elementary Education Act 1920 was enacted which has covered only limited aspects. The progress of education in Tamil Nadu and growing need was felt by the Government of Tamil Nadu to provide statutory provisions atleast on most important aspects of education like conditions of service of teachers in the private schools, with the result the Tamil Nadu Recognised (Private School Regulation) Act 1973 was passed. Even now in Tamil Nadu both statutory and non- statutory provisions in the field of education are followed. It is needless to stay that any conflict between them the statutory provisions prevails over the other. There is no comprehensive enactment on the subject of education in Tamil Nadu. Even the Tamil Nadu Recognised (Private Schools Regulation) Act is also covering only limited area of education. The Tamil Nadu Educational Rule which originally came into force in January 1892 are still in force which are admittedly not issued under any statutory power.

Now, we peruse the provisions relating to the qualification prescribed in the present Act and the Rules and the 1892 Rules.

Under Rule 5 of the Tamil Nadu Educational Rules, the nomenclature of the schools of which various stages of school education is mentioned:

Schools with Standard 1 to V. Primary Schools

Schools with Standard 1 to VIII or VI to VIII ... Middle Schools

Other category schools are not important for the case in hand.

Similar provisions are traceable in Rule 3 of Tamil Nadu Recognised (Private Schools Regulation) Rules are relating to stages of education and categories of schools.

a) Pre-Primary - Shall be classified as Basic, Nursery, Kinder garten and Montessori.

b) Primary: The Primary Schools consist of standards I to V.

c) Middle Schools: The Middle Schools consist of Standards 1 to VIII, or Standards VI to VIII.

d) High Schools: The High. Schools shall consist of Standards I to XI or Standards VI to XI or Standards IX and X.

Explanation: The Anglo Indian Schools, the Oriental Schools and the Special Schools shall be included in the respective categories in (a) to (d) above.

e) Teacher Training Institute: The pattern and duration of courses, curricular syllabi, courses of instructions, time/table and Text Books of private schools, shall be regulated by the Government by issue of orders from time to time.

Rule 13 of the Tamil Nadu Educational Rules defines, B.T. or Graduate Assistants: Graduates with B.T. Petitioner B. Ed., of Madras or Madurai University or any other University considered as equivalent.

Secondary Grade Assistants: Trained Teacher''s Certificate not lower than Secondary Grade.

Pandits:

Grade I Tamil Pandit .. Degree in the language plus L.T. or B.T. or B. Ed.,

Degree in the language plus Secondary grade training.

Or

B.O.L. (Pass of Hons) with S.S.L.C. completed plus L.T.B.T. or B. Ed.,

Or

S.S.L.C. completed and Oriental Title of Madras, Madurai or Annamalai University and Pandits or Secondary Grade Training.

Grade II Tamil Pandit Oriental Title of Madras, Madurai or Annamalai University with Pandits or Secondary Grade Training.

Or

Parsons who have passed either the Pandits or the Pulavar Pandithan examination held by the Madurai Tamil Sangani may also be entertained as Pandits on temporary basis.

Similar qualifications is found in Rule 15(6) R/w Annexure V of the Tamil Nadu Recognised (Private Schools Regulations) Rules 1974.

ANNEXURE -V

(Vide Rule 15(6)

Name of the Post Qualification

Headmaster

(High Schools) (1) B.A. or B. Sc, or its equivalent and B.Ed., or BT or L.T. and Trained Teachers Certificate of Collegiate Grade.

(2) Should have worked as teacher in recognised schools for a period of not less than five years after obtaining B.T. or its equivalent degree.

1-A. Headmaster

(Elementary and Middle Schools) (1) SSLC

(2) TSLC of Secondary Grade or its equivalent; and

(3) Should have worked as Secondary Grade Teacher in any recognised School for a period of not less than five years after obtaining the TSLC of Secondary Grade or its equivalent;

B.T Assistant B.T or B.Ed., or its equivalent; and B.T. or B Ed, or L.T and Trained Teachers'' Certificate to Collegiate Grade.

Secondary Grade Teacher (1) SSLC (2) TSLC of Secondary Grade or its Equivalent.

Elementary Grade Teacher

(Which is abolished and all The teachers are upgrades as Secondary Grade Teacher after giving necessary training).

ESLC or its equivalent and Trained Teachers Certificate of Elementary Grade or its Equivalent, Teachers who have passed the Nursery, Montessori. And Kindergarten School Leaving Certificate Examinations of Secondary Grade shall be employed to handle Standards I and II only.

Tamil Pandits (1)MA (Tamil) or BA (Tamil) or MOL (Tamil) or BOL (Tamil); and

B. Ed or B.T or L.T. or Secondary grade Training or

(2) SSLC completed and Oriental Tide of Madras, Madurai or Annamalai University, and

Pandits Training Certificate of Secondary Grade Training Certificate.

(Provided that persons who have passed Pulavar Panditham Examinations of the Madurai Tamil Sangam to be held up to April 1977 only, with Pandits Training or Secondary Grade Training are also eligible for appointment as Tamil Pandits in Schools.)

Provided further that persons appointed as Tamil Pandit in any School prior to the 1st April 1976 shall be eligible for appointment.

The State Government enacted the said Act, Rules and Regulations to control and regulate the establishment and running of the private schools. The state government provides grants/recognition to run private schools. With a view to exercise the control over the schools, and to ensure the standard of teaching they have prescribed necessary qualifications for the appointment of teachers up to VIII Standard and as well as up to XII Standard.

While looking into the syllabus of both Secondary Grade and B.Ed., the former is distinct and well suited for teaching up to VIII Standard, hence we have no hesitation to concur with the finding of the learned single Judges. The contention of the Government that B.Ed., teachers are given training to gain experience to teach Standards IX to XII, whereas the Secondary Grade are given training to gain experience for teaching the Standards upto VIII is justifiable.

Section 19 of the said Act speaks about the qualifications, conditions of service, etc., of teachers and other persons employed in private schools and Section 20 prohibits the appointment of the unqualified persons. The State Government is vested with the power to make rules to carryout the provisions of the Act Rule 15(6) Read with Annexure V stipulates the requisite qualifications of Secondary Grade Teachers, Elementary Grade Teachers and Tamil Pandits Degree holders and non-degree holders. As pointed out earlier, the similar qualifications is mentioned in Tamil Nadu Educational Rules 13. Consistently the state has been implementing its policy appointing only the Secondary Grade Teacher Training Certificate holder in the vacancies of Secondary Grade Teacher to teach up to VIII Standards. The Rule 15(6) Annexure-V is unamended till date. Hence the G.O. Ms. No. 559 dated 11.7.95 is in consonance with Rule 15(6) read with Annexure V.

Moreover, the policy of the government is continuously being followed till date nevertheless the passage of more than one century which cannot be interfered by the Courts as the same was framed by the experts and academicians. It is not for the court to consider the relevancy of qualifications prescribed for various posts. The Apex Court in the case of University of Mysore v. Govinda Rao reported in AIR 1965 page 491 held that "The Board of appointments are nominated by the University and with recommendations are made by them and the appointments following by that are challenged by the Courts, normally the Court not to interfere with the opinions expressed by experts". In J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, , it has been held, "It is not for the Court to consider the relevancy of qualifications prescribed for various posts". The Supreme Court in State of Punjab and Others Vs. Ram Lubhaya Bagga Etc. Etc., held that" When Government forms its policy, it is based on number of circumstances of facts, law including constraints based on its reservations. It is also based on expert opinion. It would be dangerous if court is asked to test its utility, beneficial effect of its policy or its appraisal based on facts set out on affidavit. The court would-dissuade itself from entering this realm which belongs to the Executive". Therefore, in view of the above decisions, we find no reasons to interfere with the policy of the State.

The counsel for the Appellants/Petitioners advanced arguments that the government itself departed from their original policy and permitted to appoint B.Ed., teachers in the vacancy of Secondary Grade Teachers since they felt B. Ed., is higher qualification as the same was admitted in G. Os issued by the Tamil Nadu prior and subsequent to the impugned G.O. Ms. No. 559 dated 11.7.95 which are discussed below.

G.O. Ms. No. 42 DATED 10.1.1969: In this Company, the Government has accepted in principle that incentive payments and awards to be given to the teachers in schools who acquire higher educational qualifications. A Secondary Grade Teacher who after passing B.T. or B.Ed., qualifies for MA, M. Sc, or M. Ed., or who is working in Secondary Grade Post was made eligible for advance increment for the second time also. learned Counsel for the Appellants/Petitioners relied upon the G.O. to say that B.Ed., and other degrees are higher qualification and as such they are entitled to be appointed in the Secondary Grade Vacancy. We have already held that the requisite Qualification for the Secondary Grade is prescribed in the Rules. Hence the B. Ed, is not the requisite or higher qualification but could be construed as a different qualification.

G.O. Ms. No. 1297 DATED 21.7.1979: This G.O. relates to extending B.Ed., scale to Middle (Higher Elementary) Schools Headmasters working as secondary grade Head Masters of middle schools and Posting of B. Eds./Tamil Pulavars as Middle School Headmasters in Permanent vacancies.

G.O. Ms. No. 373 DATED 31.03.1989: Posting of Tamil Pandits/B. Ed., teachers as Head Masters in Middle Schools:

The Government approved the above proposal suggested by the Director of Elementary Education. The Director of Elementary Education is further requested to ensure that there is a qualified B.Ed., to teach English in respect of all middle schools under all kinds of managements i.e. Aided Panchayat Union and Government schools. The order takes effect from 7.4.1988. The Government also directed that past case if any i.e. before 7.4.88 need not be reopened on any account. The Director of Elementary Education has also requested to suggest necessary proposal for amending the Tamil Nadu Educational Subordinate Service Rules suitably in this regard.

G.O. Ms. No. 1032 DATED 22.6.1991: A Secondary Grade Teacher who first passes B.T. and gets two advance increments but still continues to work in a Secondary Grade Post and who passes MA.., or M. Sc, will get two more advance increments.

G.O. Ms. No. 510 DATED 26.5.1992: Following G.O. Ms. No. 1297 dated 21.7.79, this G.O. has been issued with the view to consider the claim of the Tamil Pandits working in B.Ed., scales and for appointing them as Headmasters of Middle School, the Government approved the proposal.

If no such Secondary Grade or other teacher qualified for B. Ed./Tamil Pandit is in service on the date on which a vacancy arises such vacancy shall be filled up by appointing B.Ed., teacher/Tamil Pandit from the open market or by transfer from another management as Headmaster.

G.O. Ms. No. 1023 Dated 9-12-1993: Education-incentive increment to teachers in a school for acquiring higher Education Qualification.-Admissibility of number of incentive increments-Orders issued.-In the said G.O. Ms. No. 42 dated 10.1.69 was followed.

G.O. Ms. No. 203 Dated 193.1996: Prior to this G.O., orders were issued directing the Director of Elementary Education not to approve the appointments of B.TV Tamil Pandits in the Secondary Grade Teacher vacancies in future, in all kinds of schools (including minority schools).

In this G.O., the Government has decided that all the appointments made in the Secondary Grade Teacher vacancies in the Aided Elementary/Middle School till 10.7.95, by appointing higher qualified people such as B.T./Tamil Pandit etc., be ratified by the concerned approving authority provided they are otherwise eligible.

G.O. Ms. No. 113 Dated 14.3.1997: -It relates to 1340 Secondary Grade Posts belonging to SC/ST to be filled up by graduate teachers of the community and be given one month training for child technology by the District Education Training Centers (DIET).

The other conditions for their appointment are as mentioned in G.O. Ms. No. 539. In para-6 of the said G.O. it is stated that this order was issued since sufficient Secondary Grade candidates are not available in SC/ST community for the 1340 posts and it is applicable only to those posts and it cannot be cited as precedent for other cases.

G.O. Ms. No. 394 Dated 12.9.1997: This G.O.was issued to approve the appointments of Graduates/Tamil Pandits in the secondary grade post in the aided schools upto 10.7.95 provided the appointments were made according to the rules of reservation.

G.O. Ms. No. 189 Dated:4.6.1998: This G.O. was issued to convert 100 Secondary Grade Teachers Post into B. Ed., for the reasons mentioned below:

In Tamil Nadu, 5503 middle schools are functioning with Standard I to VIII or VI to VIII and the syllabus has been revised for Standards 6, 7 & 8 and new textbooks have been introduced. The Secondary Grade Teachers who are teaching mathematics and science cannot be considered fully qualified to teach the said subjects.

It was ordered to convert the 100 Secondary Grade Teachers'' posts into B.Ed., Teachers posts permanently in Panchayat Union Middle Schools during the financial year 1998-99, where students attending classes is more than 300 in 6, 7, & 8th Standards.

It was further ordered to appoint 50 Mathematics B.Ed., Teachers and 50 Science B.Ed., Teachers in those posts by promotion or by direct recruitment. It is further ordered to fill up B.Ed., Teachers posts by giving promotion to Secondary Grade Teachers who have been qualified in general education and technical education and are working in the concerned Panchayat Union Schools and the Special Grade Teachers who are working in the same scale of pay.

If nobody is available to fill up the post in the Panchayat Union promoting above qualified teachers, those posts may be filled up by directly obtaining the teachers'' panel from the Teachers Recruitment Board.

G.O. Ms. No. 191 Dated:4.6.98: In most of the middle schools, separate teachers for teaching Tamil to Standards VI to VIII were not available and hence it was proposed to create 25 posts of Tamil Pandit (Graduates) for the distribution of needy schools during 1998-99.

G.O. Ms. No. 136 Dated 205.1999: In the said G.O. the Government accepted to convert 100 Secondary Grade Teachers now existing in Panchayat Union Middle Schools as 100 B. Ed Teachers post from the financial year 1999-2000 permanently and to appoint by promotion and direct recruitment 50 B.Ed., Maths Teachers and 50 B.Ed., Science Teachers in the posts so converted.

Further it is ordered to implement the scheme in Panchayat Union Schools where in the total numbers of students attending classes is more than 100 in 6,7,8th Standards and it is also ordered to fill up those B.Ed., teachers post with Secondary Grade Teachers possessing the general and technical educational qualifications and working nearby and also with special teachers drawing the same scale of pay. If no teachers with the above said qualifications are available in the respective Panchayat Unions for appointment by promotion, those posts may be filled up directly by obtaining a panel from Teachers Recruitment Board.

G.O. Ms. No. 301 Dated 15.10.1999: In order to safe guard the 19% Reservation in Education and Employment for Adi Dravidar and Schedule Tribe in Tamil Nadu, G.O. Ms. No. 113, School Education, dated 14.3.97 was issued to appoint graduate B.Ed., teachers belonging to Adi Dravidar and Scheduled Tribe to full up 1340 secondary grade teachers posts. Later, they found shortage of about 12,000 Adi Dravidar/ Scheduled Tribe Secondary Grade Teacher during the Academic year 1997-98. Therefore the Government directed to fill up the vacancies for the posts of secondary grade teachers of Adi Dravidar/Scheduled Tribe with suitable qualified graduate teachers from the list of Employment Exchange when there is no Secondary Grade Teachers of Adi Dravidar/Scheduled Tribe are available from the employment exchanges, if there is no order of stay from High Court or Tribunal in this connection subject to other conditions, as mentioned therein, such as non-availability certificate from employment exchange, same scale of pay etc.,

G.O. Ms. No. 307 Dated 1-11-1999: -This G.O. also makes the provision to appoint graduate teachers in the vacancy of Secondary Grade Teachers and to give training in ''child psychology'' for a period of one month. This G.O. is with respect to Telegu Graduate Teachers.

G.O. Ms. No. 53 Dated 25-2-2000: This G.O. is issued to fill up the 113 vacancies in Secondary Grade Teacher posts earmarked for SC/ST in Chennai Corporation in the Schools run by Chennai Corporation by appointing Graduate B.T., Teachers of the said communities.

In the said G.O. it is stated that G.O. is applicable only in respect of the said 113 vacancies and could be treated as precedent.

On a perusal of the above G. Os, it is clear that the State on various occasions approved the appointment of the B. Ed./Graduate Teachers in the vacancy of Secondary Grade either in the pretext of following the communal reservation or to teach particular Subjects or approving the appointment in some of the institutions run by the Government or the local bodies. However, the Government in all the said G. Os. categorically pointed out that they were constrained to appoint graduate teachers to meet the exigencies or as temporary measures, but consistent in their stand that the Secondary Grade Teachers are alone eligible to teach the standards upto VIII Standard as they were trained in such manner and it is also evident from the said G. Os. that the graduate teachers are directed to undergo necessary training to equip them to teach upto Standard VIII.

learned Counsel appearing for the Appellants/Petitioners relied on the following decisions in support of their respective contentions:

Reverend Br.A. Thomas v. Deputy Inspector of Schools 1975 (I) MLJ 353 D.B.: In this decision, the denominational institutions'' appointments of Secondary Grade Teacher in Higher Grade vacancies were not approved by the authorities and the same was referred by the learned single Judge to the Division Bench. The management had exhausted resort of the Employment Exchange. But, they could not get higher grade teachers. With the result, they have appointed Secondary Grade Teachers in the vacancy. The G.O. was passed if no higher grade Teachers are not available for appointment, a certificate to the effect should be obtained from the employment exchanges and the same to be sent to the District Education Officer concerned with the request for permission to appoint secondary grade teacher in higher grade vacancy and that prior permission of the D.E.O. concern was absolutely necessary for filling up the said vacancy in the said manner. The Division Bench held that the interference of the Government in the said appointment was not reasonable. The said case is not helpful to the case on hand since the Law at that time was that the Aid given by the Government would not qualify the Government with any right to interfere with the freedom of management of the institution to employ the teachers of their choice. However, it cannot be said that the institution which gets Aid from the Government can ignore the directions of the Government unless it affects the fundamental rights. Further in the above case, the Government did not dispute that the secondary grade is higher qualification than higher grade whereas in the case on hand, it is disputed by the Government that B.Ed., is a different qualification and not a higher or equivalent qualification to Secondary Grade Training Certificate Course.

M.S. Mudhol and Another Vs. S.D. Halegkar and Others, In this case, the appointment of Principal of Higher Secondary School was challenged by the Respondent. The Apex court held that the Respondent is not qualified since he has not satisfied the statutory rule with regard to the essential qualification. This decision is not applicable to the facts of the case on hand since the statutory rule provides only the Secondary Grade Teacher.

In the said decision, it has been held by the Supreme Court as under:

The Respondent did not have the requisite educational qualifications to be selected for the post of the Principal. The contention that M Ed second division was equivalent to MA second division is fallacious. The former is the academic qualification while the latter is a professional qualification. Secondly, the course of the form ,is whole- time spread over not less than two years while the course of the latter is part-time and is spread over one year. In any case, the statutory rule with regard to the essential qualifications is very clear in as much as it requires both academic Masters'' degree and the teaching degree, the latter being not the substitute for the former....

In this case, the appointment of Principal of Higher Secondary School was challenged by the Respondent. The Apex court held that the Respondent is not qualified since he has not satisfied the. statutory rule with regard to the essential qualification. As such this decision is not applicable to the facts of the case on hand since the statutory rule provides only the Secondary Grade Teacher.

District Collector & Chairman,. District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, : This decision is not helpful to the Appellants/Petitioners since the same relates to appointment of a person who did not possess the requisite qualification at the time of appointment, and the Apex Court held that it was proper that she was not allowed to join Service.

Arun Tiwari v. Zila Mansavi Shikshak Sangh AIR 1998 SC 331: In this case, it has been held by the Supreme Court as follows:

The next contention challenges the qualifications which are prescribed by the amendment to Schedule in as being unfair. The prescribed qualifications are Basic Training Certificate of B-Ed., Degree. It was contended that the prescription of these qualifications is unreasonable and discriminatory because there are other qualifications which, according to the applicants, are equivalent and which should have been included. It is urged that Montessory and Manila Bal Sevika Prasikshan Pramanpatras and Diploma T are equivalent qualifications. It has been pointed out by the State that the B.T. Certificate qualification is superior to the qualifications of Diploma T, Montessory and Manila Bal Sevika Prasikshan Pramanpatras. The criteria for selection of students, syllabus and period of training are all different for Pre Primary Prasikshan (Montessory) and Bal Sevika Prasikshan. Minimum qualification for admission in Middle School and High Schools and the period of training in both the courses is one year only. For Diploma T the minimum qualification for admission is a Higher Secondary School Education. For B.T.I the minimum qualification is passing of the Higher Secondary School Education. For B.T.I, the minimum qualification is passing of the Higher Secondary School Examination in the second division and the courses are also different. The State Council of Educational Research and Training considered the question of equivalence of B.T.I. and Diploma T and concluded that both the courses are not equal and the course of Diploma T is inferior to that of B.T.I. The recommendation was accepted by the State Government. The State Government has, therefore, submitted, that B.T. qualification is superior to the other training qualifications and therefore, they have prescribed only B.T. qualification apart from a B.Ed.

Looking to the above reasons set out by the State Government for recognising a B.T. qualification as superior to Diploma 1'' and other qualifications, the exclusion of other qualifications cannot be held to be discriminatory or unreasonable. A higher qualification that is prescribed for a particular scheme cannot be considered as violative of Article 14. When candidates with higher qualifications are available, choosing them instead of candidates with inferior qualification is not violation of Article 14 or 16.

In this case, the Government prescribed that B.T. qualification is preferable than B.Ed. The Apex Court held that the exclusion of other qualifications cannot be held to be discriminative or unreasonable. It is further held that higher qualification which is prescribed for a particular scheme cannot be considered as violation of Article 14. In the case on hand, the Government has prescribed secondary grade qualification for teaching standards I to VIII. Hence, this decision is not helpful to the Appellants/Petitioners.

State of Tamil Nadu and Ors. v. The T.N. Recognised Private Schools Managers Association 1995 W.L.R. 499: In this decision, the question for consideration in the Writ Appeals as well as in the writ petitions before a Division Bench of this Court was as to whether the State Government can issue a direction to Private Educational Institutions, other than minorities, revising aids make recruitment to the post of teachers only through employment exchanges held that the State is empowered, hence it is not applicable to the facts of the present case.

Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., : In this decision, the Apex Court categorically held that the institution which gets aid from the Government cannot ignore the direction of the Government unless if affects the fundamental rights. The right of prescribing qualification is vested with the Government and the said right can be exercised by the Government to protect the interests of the students. This decision no way supports the case of the Appellants/ Petitioners.

B. B. Lakshmipathi Naidu Vs. The Distt. Educational Officer and others, : In the above decision, it is their case that instruction was issued by the State to the effect that Language Pandit has to be equated with that of a trained graduate and the same was prevailed in the state for a considerable period and the Appellant was treated to be fully qualified for the said post of Head Master. This decision has nothing to do with the facts of the present case as the syllabus for Secondary Grade Teacher is totally different from the B.Ed. Teacher and the Rules prescribed also clear for teaching upto 8th standard requisite qualification is Secondary Grade and the same prevails in the State right from 1982.

Mohd. Riazul Usman Gani and Others Vs. District and Sessions Judge, Nagpur and Others, : In this decision, the Subject matter was relating to the selection of peons in subordinate judiciary wherein the Supreme Court held that shutting out a candidate with higher education is irrational. This decision is not applicable, because, in the case on hand a specific qualification is prescribed for teaching the students upto VIII Standard and in the absence of such qualifications they are not qualified for being employed as Secondary Grade Teacher.

Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, This decision relates to equal pay for equal work and the confirmation of daily rate worker appointed without having minimum prescribed educational qualification.

In this decision, it has been held by the Supreme Court that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments of Petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. Therefore, this case also is not relevant to the facts of the present case.

Principal, Principal, King George''s Medical College, Lucknow Vs. Dr. Vishan Kumar Agarwal and Another, In this decision, the Supreme Court has held that the qualification prescribed by paragraph (i) of the second proviso to Clause (C) of Ordinance I is required to be fulfilled by the candidate on the date on which he applies for admission to the M.D. Course of the Studies. It is not enough if that qualification is fulfilled on the date of the examination, (para-9) This decision is also not relevant to the facts of the case on hand.

Raj Pal Sharma v. State of Haryana AIR 1985 1263: In this decision, the facts are that all persons released from Military Service constituted one class and it is not possible to single out certain persons of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds. The amendment by which the proviso was added was held as violation of Articles 14 & 16 of the Constitution. This case also has nothing to do with the facts of the present case.

C. Stephenson Roobasingh v. State of Tamil Badu and Ors. 1993 W.L.R. 544: This decision is relating to the challenge on G.O. Ms. No. 536 dated 17.5.89 validity of which has been upheld by a Division Bench as not violative of Article 14 or 30(1) of the Constitution. In the said decision, it is also held that any institution seeking recognition should abide by regulation prescribed as such the right of recognition of institution is not a fundamental right, even unaided institutions are not immune from the operation of the general laws of the land. This decision also is not helpful to the Appellants.

The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, : This decision is also not relevant to the facts of the case on hand .

Ram Sarup Vs. State of Haryana and Others, In this ease, an employee was reverted from a new post to lower post after a lapse of 9 years on the ground that he was not qualified for the post of Labour-cum-Conciliation Officer. The Supreme Court held that the appointment of the said person is irregular and not void and created a fiction that the State employee must be deemed to have been validly appointed on completion of necessary period of experience. Whereas, in the case on hand, the facts are that the B. Ed graduate teachers are appointed in the secondary grade vacancy against the Rules and G. Os and as such this decision is not helpful to the case of the Appellants/ Petitioners.

Mathe W v. State of Kerala 1992 A.I.E.C. 590: This decision is relating to the appointment of B. Ed degree holders as lower primary school assistants and upper primary school assistants. The Court held that the Education Authorities to approve the said appointments. However, the Rules in the said case is totally different from the rules relating to the cases on hand and as such, this decision is not applicable.

ORDER IN W.P. No. 17954 OF 1991 DATED 23.2.92 MADE BY GOVINDASAMY, J.: In this unreported order, the Government advocate was not in a position to bring to the notice of the Learned Judge any rule or provision by which the appointment of a degree holder as a teacher in the middle school is prohibited. In the result, the learned single Judge has directed the authorities to approve the appointment of the Petitioner therein. Whereas in the case on hand, on behalf of the Respondent Government, the relevant provisions restricting the appointment of B. Ed teacher have been pointed out besides they established the syllabus of Secondary Grade is different from the syllabus of the B.Ed. Hence this order is also not helpful to the Appellants/Petitioners.

Y. Srinivasa Rao Vs. J. Veeraiah and Others, : This decision is related to fair price shop dealers'' appointment where, no guidelines were prescribed with the result preference was given to uneducated persons over the educated persons which was held as arbitrary and violative of Article 14. Therefore this decision also is not relevant to the facts of the present case since the qualification prescribed for secondary grade is different.

All the said judgments relied upon by the learned Counsel appearing for the Appellants/Petitioners are not helpful to their case.

The learned Additional Advocate General made reliance on the below mentioned decisions:

J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, : In this case, the Apex Court has held that it is not for the Court to consider the relevancy of qualification for various posts by the Government. Learned additional Advocate General relied upon this decision in support of the stand of the Respondent Government. This decision has already been referred to in page No34. of this judgment.

Smt. Jayashree Sunil Chavan Vs. The State of Maharashtra and Others, This case is identical to the present cases. The Full Bench after elaborate discussion and perusal of relevant provisions held that the Secondary Grade Teacher Training is different from B.Ed., The extract of the relevant passages of the said decision are as follows: (Paras-26,27, &28)

The position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the Society depends in line with this principle, the State has enacted statutes and framed Rules and Regulation to control and regulate establishments running private schools at different levels. The State Government provides grants recognition and/or permission to run private schools with a view to exercise control over the institutions and to ensure that the standard of teaching does not suffer for want of academic control. It needs no emphasis that appointment of qualified and efficient teacher is a sine qua non of maintaining high standard of teaching in educational institutions. In order to achieve, maintain, high and proper standard of education at the entry point i.e., at the entry point i.e. at the stage of primary education, if the State has formulated its policy only to appoint the teacher with requisite professional qualifications, no fault, in our opinion, can be found. The said obligation of the State stands reflected in Section 16 of the act which mandates the State to prescribe minimum qualifications for recruitment of teacher in private schools. The policy of the State reflects through Rule 6 which prescribes qualifications of primary teachers as mentioned in Schedule ''B'' part I, whereas qualifications for secondary teachers are mentioned in Schedule ''B'', Part II of the rules. Schedule ''B'', Part I prescribes D. Ed., as the requisite qualification for primary teachers, whereas Schedule B, Part II prescribes B.Ed., as a requisite qualification for higher secondary teachers.

Based on the aforesaid provisions, it is to be noticed that B.Ed. is not requisite qualification for primary teachers. The syllabus for B. Ed is entirely different. The syllabus for D. Ed. is better suited for imparting education to the students taking education in primary school only whereas syllabus for B. Ed, is entirely distinct and better suited for the students taking education in higher standards. The factual position has been born out from the relevant material placed on record, reference of which have already been made by us in Para-22 (supra).

The State Board of Teachers Education is constituted to frame syllabus and to advise the state Government to formulate policy relating to the education. If Board in its wisdom considered it necessary to prepare syllabus of D. Ed., in a particular manner to make it relevant for teaching students of tender age taking education in primary schools and the State Government has sanctioned it, with due application of mind, then no fault can be found with the policy of State to insist for appointment of D. Ed., teachers to impart education in primary Schools in the State of Maharastra.

The Board is an expert body consisting of persons coming from different walks of life who are engaged in or interested in the filed of education and have wide experience. The decision of such expert body needs to be given due weightage by the Courts. The apex Court in this behalf in the case of The University of Mysore and Another Vs. C.D. Govinda Rao and Another,

board of appointments are nominated by the Universities and when recommendation made by them and the appointments following on them are challenged before the Courts, normally the Courts should be slow to interfere with the opinions expressed by the experts.

The aforesaid observations of the Supreme Court have set out the parameters so far as exercise of powers by the courts are concerned. Following the said guidelines, we do not find any fault with the requisite qualifications prescribed by the Rules and reiterated by the Education Board while taking a second look.

The above said decision relied on by the learned Additional Advocate General squarely applies to the present case both the B.Ed., and Secondary Grade Teacher Training Qualifications operate in a separate and distinct fields. There is no question of one qualification being higher than the other.

We have already held that the syllabus of Secondary Grade Teachers are different from the syllabus of B.Ed. Teachers and as such G.O. Ms. No. 559 dated 11-7-1995 issued by the Government of Tamil Nadu is perfectly valid and the orders passed by the learned single Judge, upholding G.O. Ms. No. 559, are confirmed. We do not find any violation of any right much less the Fundamental Rights of the Appellants/ Petitioners and we hold further that the B. Ed. teachers do not possess the requisite qualification to be appointed in the vacancy of Secondary Grade Teachers to teach upto VIII Standard.

The question, however, is as to what course should be adopted now more particularly in the case of the persons who have already been appointed on the basis of their qualification of B. Ed, in the post of secondary grade teachers. We were pointed out that such persons would be few hundreds and more probably about 1000. It is pointed out that practically all the persons who have been so appointed were in the clear posts of the Secondary Grade Teachers and such teachers, on the basis of their appointments, have been teaching for about a decade in some cases. It has also been pointed out to us that the operation of the impugned Government Order was stayed during the pendency of the battle before the learned single Judge and even that prompted the appointments. learned Counsel for the Appellants and Petitioners also pointed out that there was a point of time when there was a dearth of Secondary Grade Teachers duly qualified with the T.S.S.L.C. diploma. Under such circumstances, an apprehension was expressed that the dismissal of these appeals and the petitions and the upholding of the impugned Government Order would result in the mass termination of such teachers.

There can be no doubt that the results would be devastative at least for those who have to lose their jobs after teaching for years together. The ensuing dismissal would also add insult to the injury as in most of the cases these teachers are serving for meagre salaries. It has been pointed out to us by all the learned Counsel that only few of these teachers are able to get the salaries on account of the approval given by the Government but over 90% of these teachers are such whose appointments have not been approved. With the result, they get bare minimum salaries and/or at the mercy of the Managements.

An argument was made that on number of occasions when the State Government permitted the appointment of the graduate teachers in place of the Secondary Grade Teacher, the Government also took an exercise to train these teachers for few weeks so as to ensure that the future of the children was not jeopardised at the hands of these teachers who did not have a training to deal with the urchins and the students of tender age. An fervent appeal was made by all the learned Counsel that even if the validity of the impugned Government Order were to be upheld by this Court, some relief should be given purely in the interests of justice. The argument cannot be said to be altogether without force. There can be no doubt that even in the past, the State Government has been allowing the graduate teachers to be appointed though, of course, we have pointed out that such exercise was necessitated on account of the peculiar situation at that time. In fact, we have repelled the argument that this was a routine exercise on the part of the State Government. However, we cannot altogether ignore the fact that such exercise, in fact, was taken by the. State Government. It is again to be realised that if these teachers go on account of this judgment, there might occur a void in the particular schools where they have been teaching because, admittedly, all the teachers have been teaching in the schools for years together and have gained precious experience in the process. Their unceremonious exit from the job would spell wastage of all these experience. Realising this, the learned Additional Advocate General very fairly suggested that the employment of those teachers who were inducted prior to the disposal of the writ petitions by the learned single Judge could be saved and the directions could be given to give them the training on the same lines as was done in the past. The learned Additional Advocate General, however, suggested that such of those teachers who had come after the dismissal of the writ petitions cannot be shown any such latitude.

We appreciate the stand taken by the learned Additional Advocate General, which is a pragmatic stand and has an unshakable base of experience. In order to avoid an undue hardship to these teachers who have been serving for years together in the lower classes even after studying for a graduation degree that too on meagre salaries, it will be better if an exercise is taken for the confirmation of these teachers. The modalities of which may be decided by the State Government. The State Government may decide to give the practical training or may even choose to individually examine each case on its own merits. There may be individual cases where the Management was absolutely justified in employing a graduate teacher and there could be others where there was no such justification. We do not wish to draw the details and leave it to the State Government. However, the State Government shall take up this exercise as we have indicated above providing relief to at least such teachers who have been inducted prior to the dismissal of the writ petitions before the learned single Judge. We direct accordingly while dismissing the appeals and the writ petitions. No costs.