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Judgment
S.S. Subramani, J.—Petitioner is an Aided Middle School and vacancy arose on the retirement of two teachers, Narasinga Rao and Boologammal, who retired from service on 31.5.1994. There was an order by Government dated 20.5.1994, banning appointment and, therefore, Petitioner could not apply for approval for the appointment of two teachers, Shakila and Suriyakala, as Secondary Grade Teacher in that School. Challenging the ban order, a Writ Petition was filed as W.P. No. 19535 of 1994, and a learned Judge of this Court directed the Respondents herein to decide the question of approval of appointment of the two teachers, since the ban order was also stayed by this Court in another Writ Petition. In pursuance of that direction, Petitioner moved the Respondents for approving the appointments of the teachers, Shakila and Suriyakala, with effect from 1.6.1995. Shakila had passed Diploma Id Teacher Education and she was qualified to the post of Secondary Grade Teacher whereas Suriyakala was a Graduate Trainee Teacher. In regard to Shakila, second Respondent approved the same by letter dated 10.11.1995. But, in regard to the other teacher, no order was passed. At that time, the question that arose for consideration by the Authorities was, whether Suriyakala could be appointed in the Secondary Grade Teacher Post, when she is a Graduate Trainee Teacher. Petitioner clarified the position by stating that as per G.O. Ms. No. 203 dated 19.3.1996, all appointments made in the Secondary Grade Teacher vacancies in the Aided Elementary/Middle Schools till 10.7.1995 by appointing higher qualified people could be approved. In spite of the said clarification, no order was issued. The further doubt of second Respondent was, whether the appointment of Suriyakala was made from candidates sent through the Employment Exchange, and whether Roster was followed. There was also another condition not to claim higher pay for higher qualification. It is seen that the Government has already issued orders that regarding appointment to Aided Schools it should be made only through Employment Exchange, and the candidates must be sponsored by Employment Exchange, and the appointment also should be made by following the Rule of reservation. The said Government Order compelling the Aided Schools from recruiting teachers sponsored by the Employment Exchange was the subject matter of W.P. No. 14338 of 1988, filed by the Tamil Nadu Recognised Private Schools Managers Association. Petitioner herein was also a party to that Writ Petition. On 1.12.1988, a learned Judge of this Court passed an Order of interim injunction, and the learned Judge has also made it clear that if any appointments are made in pursuance of the interim Order, they will be subject to further orders passed in that W.M.P. According to the Petitioner, the appointment was made when the above Government Order was stayed or when there was an injunction and, therefore, the Respondents are bound to approve even though Suriyakala was not appointed by following the Government Order.
A detailed explanation was also given to the Respondents on 22.4.1996 explaining the reasons why the appointment of Suriyakala has to be approved. But, by the impugned Order dated 25.6.1997, the request for approval was rejected on the ground that Suriyakala was appointed by the Petitioner, not from the candidates sent by the Employment Exchange. The grievance of the Petitioner is that when there is an order of injunction, the Authorities are bound to approve the appointment. It is said that on the date of appointment, the condition was not in force, and her appointment was only in accordance with the Rules that were prevailing then. For these reasons, Petitioner has come to this Court for issuance of a Writ of Certiorarified Mandamus, calling for the records connected with the proceedings of the first Respondent herein in R.C. No. 7070/Jl/93 dated 25.6.1997 as communicated to the Petitioner-School and quash the same, and direct the Respondents herein to approve the appointment of Suriyakala in the retirement vacancy and to release the grant for the teacher with effect from 1.6.1994, and pass such further or other Orders.
Though the Respondents have not filed counter, learned Government Advocate argued the matter on written instructions. It could be seen that the Government has issued G.O. Ms. No. 873, Education, Science and Technology (D2) Department, dated 13.11.1995. The said Government Order had to be issued under the following circumstances:
As stated earlier, the Government issued Orders that appointment should be made only from candidates sponsored by the Employment Exchange. That was in accordance with G.O. Ms. No. 1138, L&E Department dated 25.3.1978. It was challenging that Government Order viz., G.O. Ms. No. 1138, W.P. No. 14338 of 1998 was filed, and the Petitioner herein was also one of the parties. An order of injunction was granted by this Court against the Department. It is seen that the learned Single Judge passed an Order in favour of petitioners therein, and the Government took the matter in Writ Appeal No. 879 of 1993. A Division Bench of this Court held that the Government has the power to issue directions regarding the mode and manner of recruitment of teachers without affecting the right of the Management to make the selection. The Bench further held that the G.O. impugned therein, issued by the Government directing Private Educational Institutions to fill up the vacancies from among the candidates sponsored by the Employment Exchange and in the event the names of candidates furnished by the Employment Exchange are not found to be suitable and if no other suitable candidate is available among the candidates registered in the Employment Exchange, it would be open to the Private Educational Institutions to obtain permission from the State Government or the concerned authorities, as the case may be and proceed to make recruitment through open market, are well-founded. The Writ Appeal judgment is dated 17.2.1995. After taking note of the Division Bench judgment, the Government issued G.O. Ms. No. 873. Though it is dated 13.11.1995, all appointments made upto 17.2.1995 were directed to be regularised, and, if appointments were made thereafter, the same shall not be approved. It is the case of the learned Government Advocate that it is in pursuance of G.O. Ms. No. 873, the approval sought for cannot be granted, since the approval is sought from 1.6.1995. It was also brought to my notice by learned Government Advocate that even this Government Order was challenged before this Court, and the same was also found to be valid.
After hearing learned Counsel on both sides, I find that the stand taken by the Government is only to be accepted. In this case, the appointment of Suriyakala is sought to be approved from 1.6.1995. Even though G.O. Ms. No. 873 is dated 13.11.1995, it is effective from 17.2.1995, i.e., the date of judgment in Writ Appeal No. 879 of 1993. Relevant portion of the Government Order reads thus:
The Government have considered the above directions of the Hon''ble Court, Madras in W.A. No. 879/93 and issue the following orders: -(i) The Private Aided Educational Institutions shall make all appointments in their institutions through the Employment Exchange only when no candidate is available from the Employment Exchange or the candidates who are sponsored from the Employment Exchange are found to be unfit, it would be open to the Private Educational agency to seek the permission of the concerned authority and go ahead with the recruitment from the open competition.
(ii) This order shall take effect from 17.2.95 i.e., the date of judgment of the High Court in the W.A No. 879/93. The Director of School Education / Director of Elementary Education and the Private School Managements shall compute the vacancies well in advance and take steps to fill up the same within three months, so that there will not be any difficulty and the vacancies will be filled up without any loss of time.
(iii) The Employment Exchange should send the list within 10 days from the date of the receipt of the requisition made from the Private Aided School Managements for appointment of candidates as stipulated in G.O. Ms. No. 778 Edn. dated 19.5.79. If the qualified candidates are not available in the Employment Exchange, it should send a Nil Report to the Private School Managements within 10 days.
(iv) The appointments made upto 17.2.95, i.e., the date of judgment in the Writ Appeal in the Private Aided Educational Institutions without consulting the Employment Exchange shall be regularised, if the appointments are found to be otherwise regular and in accordance with the Rules.
In view of this Government Order, which has been held to be valid, Respondents herein were justified in not approving the appointment of Suriyakala. In fact, the judgment in Writ Appeal No. 879 of 1993 has been reported in 1995 WLR 499 (State of Tamil Nadu, etc. and 93 Ors. v. The Tamil Nadu Recognised Private Schools Manager'' Association, rep. by its Joint Secretary and Ors.). In paragraph 18 of the judgment, the First Bench of this Court has justified the Government Order. It reads thus:
It is also necessary to point out that thousands of educated graduates, non-graduates, rained and untrained have registered in the Employment Exchanges and the State Government is paying them some money on the ground that they are unemployed. Such being the situation if the candidates who have registered in the Employment Exchanges and have been waiting for employment for several years, are to be ignored and the recruitment is to be made in the open market, it would cause great injustice and public interest will suffer. When the Government is bearing the entire expenditure, we do not see, why it should not have the power to issue a direction to the Private Institutions to make recruitment through Employment Exchanges. The Government is making the grant only because if is not possible for it to open so many Schools at a time and at the same time, it cannot afford to keep quiet without providing educational facilities to the citizens. Therefore, the mode of granting aid to the Private Educational Institutions is evolved so that education can be imparted to the citizens by the Government through the media of Private educational Institutions. If that would be so, it would be well within the power of the State Government to issue the directions regarding the mode and manner of recruitment without affecting the right of the management to make selection.
It was after the judgment of the Bench extracted above, the impugned Government Order itself was issued.
Admittedly, the Petitioner-School has not appointed Suriyakala after following the procedure Prescribed in the Government Order.
It was argued by learned Counsel for Petitioner that Shakila was also appointed along with Suriyakala, that her appointment has been approved and, therefore, as between them, there cannot be change in the situation. One illegality will not justify the commission of another illegality. Petitioner, when it seeks a relief of Writ of Mandamus or Writ of Certiorarified Mandamus, it must prove that it has got a legal right to get that relief, namely, approval of the appointment. Therefore, the Court cannot consider the approval of appointment of Shakila as a ground for justifying the appointment of Suriyakala and consequently issue a direction to the Respondents herein to approve the appointment of Suriyakala.
In the result, the Writ Petition is dismissed. No costs. WMP 18139 of 1997 for interim direction is also dismissed consequently.