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Judgment
K.A. Swami, C.J.—Writ Appeal 879 of 1993 is preferred against the order dated 28.8.1989 passed by the learned single judge in W.M.P.
No. 16090 of 1989 in W.P. No. 11327 of 1989. The learned single judge has allowed the writ petition following the judgment of this Court in
Ramaswami v. State of Tamil Nadu 1990 WLR 42. It is also brought to our notice that a learned single judge of this Court has allowed W.P. Nos.
8855, 11327 of 1989, 3005 and 17186 of 1990 and 6665 of 1991 by the order dated 3.4.1992 W.P. Nos. 14338 of 1988, 4446, 5077 and
14235 of 1989, 2921, 3139, 9547, 13554 and 15479 of 1990, 433, 2347 and 11680 of 1991 have also been allowed by a learned single judge
of this Court following the decision in Ramaswami''s cast (cited supra). Therefore, when the Writ Appeal (W.A. No. 879 of 1993) came-up for
hearing, we directed that the other connected writ petitions should also be posted along with the writ appeal. Accordingly, the other connected writ
petitions have been posted along with the writ appeal. We have heard Learned Counsel appearing for the parties to the writ appeal as well as the
writ petitions.
The question for consideration in the writ appeal as well as in the writ petitions is as to whether the State Government can issue a direction to the
private educational institutions, whether of minority institutions or otherwise, receiving aid from the State to make recruitment to the post of
teachers only from among the candidates sponsored by employment exchange.
2.1. There are three Government orders in this regard. The first one is G.O.Ms. 1138 dated 25.9.1978. It relates to all departments, including
private educational institutions receiving aid. Thereafter, the second order, G.O.Ms. 778 dated 19.5.1979 came to be issued specifically relating to
the education department. The third order, G.O.Ms. 2085 dated 20.9.982 came to be issued as applicable to all private colleges.
2.2. In Ramaswami v. State of Tamil Nadu 1990 WLR 42 the appointment of Ramaswami as a teacher came up for consideration. Two
contentions were raised. One of the contentions related to appointment through employment exchange. It was contended that Ramaswami, was
not sponsored by the employment exchange, therefore he could not have been appointed as at teacher, as such his appointment was not valid. It
may be noted that in that case, G.O.Ms. 1027 Education dated 24.5.987 and other relevant Government Orders were considered. It was found
by this Court that Ramaswami was sponsored by the employment exchange. Therefore, it was held that the requirement as to appointment of the
candidates sponsored by the employment exchange was satisfied. Thus the decision on the other point was not necessary. The Bench also referred
to a decision of the Supreme Court in Union of India (UOI) and Others Vs. N. Hargopal and Others, and held thus: ""This settles the contention
raised on behalf of Respondents 1 and 2 impeaching the validity of the appointment of the Petitioner by the third Respondent on the ground that the
Petitioner was not a candidate sponsored by the employment exchange. Otherwise, no impediment has been found and expressed before us by
Respondents 1 and 2 with reference to the countenancing of the recruitment of the Petitioner by the 3rd Respondent and for regularising his
services."" Accordingly, the writ appeal was allowed. The order of the learned single Judge was set aside and the writ petition was allowed. The
appointment of Ramaswami was upheld.
It is contended on behalf of the Petitioners that the State Government is not competent to issue a direction that the teaching staff required for the
respective schools should be recruited from among those who are sponsored by the employment exchange; that such a direction would take away
the right of the management of private educational institutions to choose the candidates on merits and the best one required for the post. It is also
contended on behalf of such of those institutions which are managed by the religious minority that the State Government is not competent to issue
such a direction, as the same would affect the right to have the management of the minority educational institutions exclusively as guaranteed under
Article 29(2) and 30(2) of the Constitution.
On the contrary, it is the contention of the teamed Special Government Pleader (Education), Sari P. Shanmugam (as he then was), that the
private schools, whether of minority institutions or otherwise, receiving grant are governed by the Tamil Nadu Recognised Private Schools
(Regulation) Act, 1973 and the Rules framed hereunder known as the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974
(hereinafter referred to as ''the Act'' and ''the Rules'' respectively); that the State Government extend aid to these Institutions and bears the entire
expenditure. As a part of granting aid, the State Government is entitled to impose such conditions as ate deemed necessary. In fact, it is submitted
that Rule 11(5)(ii)(d), (c), (d) and (e) and Rule 9(g), relating to recognition, prescribe that the educational agency shall carry out the Instructions
issued by the Director of School Education; that while granting the aid, a condition is imposed that they should carry but such directions or
instructions as may be issued from time to time and that they have also executed the agreement to carry out those direction instructions. Therefore,
it is submitted, that the order issued by the Government was to the effect that recruitment to the post of teachers should be made only from among
the candidates sponsored by the employment exchange. It is submitted that during we year 1992-1993 there were 5124 primary schools with
30437 teachers; 1901 middle schools with 28240 teachers; 430 high schools with 14579 teachers and 768 higher secondary schools with 39032
teachers, totalling to 8223 schools with 112288 teachers. The State for quite a number of years has been granting aid to educated unemployed
persons, who have registered their names in the employment exchange for more their five years and have paid for a period of three years at the
rate of Rs. 100/- per month for graduates, Rs. 75/- per month for PUC/ + 2 passed and Rs. 50/- per month for SSLC passed. In this way, a sum
of Rs. 7.66 crores was disbursed as relief. In addition to the grants made to the private educational institutions for the year 1993-94, Rs. 1483
crores have been, spent on the elementary and secondary education. The number of teachers Government, Municipal and Panchayat Unions was
100487 compared to the teachers underlie private management being 112288. Therefore, it is contended that the State Government is justified in
issuing a direction to make recruitment to the post of teachers only from among the candidates sponsored by the employment exchange.
We may point out here that Rule 11 of the Rules, which relates to payment of grant, specially provides that ""recognised private schools may be
paid grants from State Funds directly or through Panchayat Unions. Such payment of grants shall be subject to Government orders and instructions
issued from time to time. Sub-rule (5) of Rule 11 further provides, that ""notwithstanding anything contained in the Act or in any other law for the
time being in force or in any other decree or order or direction of any court or other authority,- (i) no private school shall, only on the ground of
having been granted recognition under the Act, be entitled to any grant or other financial assistance from the Government; (ii) the Government may,
subject to (a) the availability of funds; (b) the norms and conditions specified in the Grant-in-aid Code of Tamil Nadu Education Department; (c)
the condition that every private school receiving any grant or financial assistance from the Government levies and collects from the pupils only such
fee, charge or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment
levied and collected from the pupils studying in the schools or institutions established and administered or maintained by the State Government, or
any local authority in the locality; (d) the Rules, Orders and Notifications issued by the Government from time to time; and (e) such other
conditions as may be prescribed, pay to the private school, grant or other financial assistance at such rate and for such purposes as may be
prescribed."" In addition to this, Section 14(1)(c)(d) and (e) of the Act specifically provides that ""the condition that every private school receiving
any grant or financial assistance from the Government levies and collects from the pupils only such fee, charge, or other payment as may be
specified by the competent authority, which shall not be in excess of the fee, charge or other payment, levied and collected from the pupils studying
in the schools or institutions established and administered or maintained by the State Government, or any local authority in the locality; (d) the
Rules, Orders and Notifications issued by the Government, from time to time; and (e) such other conditions as may be prescribed pay to the
private school grant or other financial assistance at such rate and for such purposes as may be prescribed."" In the light of the averments made in the
counter-affidavit, and in the light of the aforesaid provisions of law, it is the contention of the learned Special Government Pleader that the State
Government is entitled to issue a direction as to filling up of the vacancies in the schools and colleges receiving aids from among the candidates
sponsored by the Employment Exchanges. In this regard, G.O.Ms. 1138, Labour and employment Department, dated 25.9.1978, and also
G.O.Ms. 778, Education Department dated 19.03.1979 were relied upon. G.O.Ms. 2085, Department of Education, Science and Technology,
dated 20th September, 1982 were relied upon in so far as the aids to colleges are concerned.
5-A. G.O.Ms. 1138 is the general G.O., which covers not only the schools and colleges, but also all the industries, institutions, Universities,
hostels, orphanages, Co-operative Societies, etc., which receive financial assistance by way of grant or loan or material assistance, etc., from the
Government or State quasi Government institutions, statutory corporations, public sector undertakings, autonomous boards, co-operative
institutions etc. It directed that they should recruit personnel only through Employment Exchanges by way of notifying the vacancies to the
concerned Employment Exchanges (Compulsory Notification of Vacancy) Rules, 1960 and resort to any other from of recruitment like
advertisement in Dallies Etc., only after obtaining a non-availability certificate from the concerned Employment Exchange or obtaining the prior
sanction of Government through the financial institutions or Government Department in the administrative departments of the Secretariat in
consultation with the Labour and Employment Department in the Government. The G.O. further directed that the financial grant or material
assistance to any institution which violates the terms of the G.O., would be stopped. Further, all the heads of the departments were directed to
take appropriate action and also to ensure that the G.O. is obeyed and an agreement to that effect is also obtained, from the private institutions,
etc. for granting financial assistance by way of grant or loan or material, assistance. The G.O. further made it clear that the statutory corporations,
autonomous, Boards, cooperative institutions, etc. which give financial or material assistance, should send an annual return to the Director or
employment and Training, the Administrative Department of the Secretariat and the Government in the Labour and Employment Department in
Proforma I and II enclosed with the G.O., after obtaining the particulars in Proforma II from the institutions which receive assistance within a month
from the date of expiry of the financial year. It also further directed that the Director of employment and Training, Madras should make a
consolidated report, review the working of Government Orders and send his report to Government in the Labour and Employment Department
annually for record. Lastly, the G.O. directed that it would not be applicable to the schools and colleges run by the minorities in the State as
guaranteed under the Constitution.
G.O.Ms. 778, Education, dated 19.5.1979, specifically dealt with the schools. It directed that the vacancies that arise and the teaching posts to
be created in the coming years shall be filled up as far as possible from among the candidates sent by the Employment Exchange on seniority basis,
i.e., on the basis who have got their names registered with the Employment Exchange first. The Appointing Authorities are also instructed to follow
the procedure as follows:
(1) The Chief Education Officers or the appointing authorities concerned shall estimate the vacancies approximately taking into account the
vacancies that may arise during the academic year, newly oreated posts (posts sanctioned by the Government) under Plan Schemes as per the
Director of School Education/Chief Educational Officers/District Educational Officers/Others) and leave vacancies that may arise during academic
year and send it to the respective Employment Exchanges before 20th May (By certificate of posting). The respective Employment Officer shall
send the list of candidates to the appointing authorities before 5th June.
(2) The Employment Exchange shall send the list of candidates within 10 days from the date of receipt of indents from the Chief Educational
Officers or the appointing authorities. If there are no eligible candidates available in the Employment Register, non availability certificate shall also
be sent within 10 days.
(3) The appointing authorities shall send the indents to the Employment Officer before May end during the year 1979-80 only. Employment Officer
shall send the list of candidates before 10th of June.
(4) The Employment Officer shall sponsor the candidates at the ratio of 1:10 for each vacancy. If the list of candidates is not received within 10
days from the employment Exchanges, the Chief Educational Officers or appointing, authorities can fill up the vacancies by Direct recruitment from
among the candidates who have registered their names with the Employment Exchanges. (Not lapsed).
(5) The list received from the Employment Exchanges shall be Valid for one year (In so far Education Department) instead of six months. The list
should be obtained from the Employment Exchanges within the prescribed dates for each academic year.
(6) The Chief Education Officers shall estimate the exact vacancies that may arise during the academic year and select the Candidates by direct
recruitment from among the list sent by the employment Exchanges and fill up the vacancies during the year (including leave vacancies) then and
there.
(7) In respect of new posts in the Higher Secondary Schools, during 1979-80, the Director of School Education'' shall get the list from the
Assistant director of Employment (Professional Education), Madras 35 and select the required candidates and allow them in needy Government
Higher Secondary Schools. The appointing authorities of the District level shall issue appointment orders. The above procedure shall be followed
by the Director of School Education and the Assistant Director of Employment (Professional Education), Madras.
(8) This Order is applicable to the Schools under all kinds of managements (excluding minority schools). The appointing authorities in private
school managements, corporation, Municipalities, local body, Harijan Welfare and Backward Welfare Departments shall follow this procedure in
their schools. The Director of School Education shall inform the details to them.
Thus, the aforesaid G.O. made it clear that the G.O. would be applicable to schools under all kinds of management excluding minority schools.
G.O.Ms. 2085 dated 20th September, 1982 relates to private colleges. It directs that the recruitment of personnel in private colleges receiving
aid would be through Employment Exchange by way of notifying the vacancies to the concerned Employment Exchange in respect of appointments
to all categories of staff in the aided colleges and that the Tamil Nadu Private Colleges (Regulation) Rules, 1976 framed under the Tamil Nadu
Private Colleges (Regulation) Act, 1976 should be amended to that effect.
Thus, it is clear from the aforesaid G.Os. that any college or school run by a private educational agency receiving aid should fill up the vacancies
on obtaining the list from the Employment Exchange and in the event the Employment Exchange intimates that no candidates is available, then, it
has to seek permission from the concerned Department and proceed with the recruitment from the open market.
The contention of the Petitioners is that though the private educational agencies are receiving aids, the power or authority of the management to
make recruitment to the vacancies in their institutions lies with them and the impugned Government Orders restrict their power of making
appointments and thereby they affect the fundamental right to run an educational institution. As far as the minority schools and colleges are
concerned, as the G.O. specifically states that the same do not apply to them, we do not consider it necessary to deal with the question as to
whether it would be open to the State Government to issue a direction of the nature contained in the impugned Government Orders to the minority
educational institutions receiving aids. Therefore, that question is left open.
We only consider the question as to whether the private educational institutions other than minorities receiving aids, can be directed to make
recruitment through the Employment Exchanges.
It may be pointed out here that the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as the Act)
specifically empowers the State Government while granting aid, to impose such conditions as may be prescribed. Section 14 of the Act deals with
the payment of grant. Section 14(1)(ii) deals with the conditions which can be imposed while granting the aid. Clause (e) of Section 14(1)(ii)
specifically provides that the Government may subject to, such other conditions as may be prescribed, pay to the private school grant or other
financial assistance at such rate and for such purposes as may be described. Rule 11 of the Tamil Nadu Recognised Private Schools (Regulation)
Rules, 1974 (hereinafter referred to as ''the Rules'') deals with the payment of grant. Rule 11(1) specifically says that the recognised private schools
may be paid grants from State funds directly or through Panchayat Unions and such payment of grants shall be subject to Government Orders and
instructions issued from time to time. The impugned government Orders do fall within Rule 11(1) of the Rules. In addition to that, Rule 11(5)(ii)(e)
is also similar to Section 14(1)(ii)(e). Thus, a reading of Section 14(1)(ii)(e) and Rule 11 together makes it clear that the State Government is
empowered by the statute to issue the directions to the private educational institutions receiving aid regarding the mode and manner of filling up of
the vacancies. The contention that the power of the management is taken away by this process or by issuing such directions, also does not hold
water. It may be pointed out here that the power of the Management to make selection of the candidates is not taken away. It is open to the
Management to make selection out of the candidates who are sponsored by the Employment Exchange. It is 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.
In fact, the question as to whether the recruitment through the candidates sponsored by the Employment Exchange only can be considered to
be in accordance with Articles 14 and 16 of the Constitution, came up for consideration before the Supreme court in Delhi Development
Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, and it was specifically held thus:
Apart from the fact that the Petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious
consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been
leading. Although there is Employment Exchange Act which required recruitment on the basis of registration in the employment Exchange, it bat
become a common practice to ignore the Employment Exchange and the persons registered in tie Employment Exchanges and to employ and get
employed directly those who are either not registered with the Employment Exchange or who, though registered, are lower in the long waiting list in
the Employment Register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal
considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant Rules and is
continued for 240 or more days with view to give the benefit or regularisation knowing the judicial trend that those who have completed 240 or
more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of
corruption and frustration of those who are waiting at the employment Exchanges for years. Not all those who gain such back-door entry in the
employment are in need of the particular jobs, though already employed elsewhere, they join the jobs for better and secured prospects. That is
why most of the cases which come to the Courts, are of employment in Government Departments, Public undertakings or Agencies. Ultimately, it
is the people who War the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many
of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed
on such works, are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-
bound and there is no need for the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both
counts.
In the circumstances, it is not possible to accede to the request of the Petitioner so that the Respondents be directed to regularise them. The most
that can be done for them, is to direct the Respondent-Delhi Administration to keep them on a panel and if they ate registered with the
Employment Exchange and are qualified to be appointed on the relevant posts, give them a preference in employment whenever there occurs a
vacancy in the regular posts, which direction we give hereby.
In Union of India (UOI) and Others Vs. N. Hargopal and Others, it was held that
Insistence of recruitment through Employment Exchanges advances rather man restricts the rights guaranteed by Articles 14 and 16 of the
Constitution. The plea that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is
adopted. Advertisement in the daily Press, for example, is also equally ineffective as it does not reach every one desiring employment. In the
absence of a better method of requirement, any restrictions that employment in Government Departments should be through the medium of
Employment Exchanges does not offend Articles 14 and 16 of the Constitution.
As far as the power of the Management is concerned, we have already pointed out that such a direction does not take away their power as to
who should be selected and who should be suitable for the post in their institutions. Therefore, the grievance on the part of the management of the
private institutions is not justified. We have already explained the scope and ambit of the Division Bench decision of this Court in Ramaswami''s
case and held that the decision on the other point was"" not necessary as such it was obiter dicta and as such, learned single Judges who have
followed the said decision cannot be held to have correctly construed in appreciating the said decision.
In Francis John Vs. Director of Education and Others, , it has been specifically held that,
Any private school which receives aid from the Government under the Grant-in-Aid Code, which is promulgated sot merely for the benefit of the
management but also for the benefit of the employees in the school for whose salary and allowances the Government was contributing from the
public funds under the Grant-in-Aid Code cannot escape from the consequences following from the breach of the Code and particularly where the
Director of Education who is an instrumentality of the State is participating in the decision making process.
It is also further held that when the Government gives the grant-in-aid in exercise of executive power though not under a statute, still the
Management is bound by the directions that would be issued as a condition for making the grant, (see para 5). It may also be pointed that this
decision related to a minority school.
In All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, , the scope and ambit of Article 30 of the
Constitution were pointed out and it was also held that in spite of the right guaranteed under Article 30, it is open to the State Government to issue
instructions or directions in the matter relating to conducting of a course and also other matters to ensure the standard and discipline in the schools
and such directions which are all regulatory measures, will not in any way destroy the administrative autonomy of the institution, nor start interfering
willy pilly with the core of the management of the institution so as to render the right of the administration of the management of the institution
concerned nugatory or illusory.
However, it is the contention of the Petitioners that Employment Exchanges do not send the list as and when required well within time and
even, if they send the list. The list of proper candidates as demanded is not sent and a list of some other candidates who are not required for the
institution, is sent, as a result thereof, there would be delay in the recruitment and the institutions will be compelled to go on without the requisite
number of teachers. Consequently, the interest of students will be affected, as there will not be sufficient number of teachers. Therefore, it is the
case of the Petitioners that the direction as to recruitment of candidates sponsored by the Employment Exchanges would work great hardship to
the institutions as well as to the students, whose interest should be uppermost.
Learned Government Pleader submits in this regard that all the Employment Exchanges haw already been instructed and they would be further
instructed to send the list of candidates as sought for by all the private educational institutions without any delay and that any inconvenience caused
to them and any lapse on the part of Employment Exchanges in this regard, if brought to the notice of the concerned Authorities, the same will be
immediately attended to and every step will be taken to ensure that no hardship or obstacle is caused in the matter of recruitment of teachers
through Employment Exchanges.
It is also necessary to point out that thousands of educated graduates, non-graduates, trained 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 id 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 though
Employment Exchanges. The Government is making the grant only because it is not possible for it to open so may 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.
Lastly, it is contended by the Petitioners that in the event this Court were to come to the conclusion that the State Government is entitled to or
is authorised under law to issue a direction to the private educational institutions to make recruitment through Employment Exchanges, the
appointments so far made should not be disturbed, because the appointees have been working, for the last several years and if they are to be
disturbed, they will not be eligible for securing another job, as most of them would be barred by age.
We see merit in this submission. These writ petitions have been pending for the last several years. There has been an interim order passed in
these writ petitions. As a result thereof, recruitments have been made by private educational institutions, without going through Employment
Exchanges. The appointees cannot be considered to be at fault, therefore they should not be made to suffer. Hence, we are of the view that the
appointments so far made upto this day should not be affected by this decision or by the impugned Government Orders and the approval sought
for by private educational institutions in respect of appointment already made, shall be considered on merits and without reference to the fact that
such appointments have been made from open market and not from the candidates sponsored by Employment Exchanges.
We, accordingly, answer the pout raised for determination in the affirmative and hold that the impugned Government Orders directing private
educational institutions to fill up the vacancies from among the candidates sponsored by the Employment Exchanges and in the event the names of
candidates furnished by the Employment Exchanges are not found to be suitable and if no other suitable candidate is available among the
candidates registered in the Employment Exchanges, it would be open to the private educational institutions to obtain permission from the State
Government or toe concerned authorities, as the case may be, and proceed to make recruitment through open market, are well founded. In such
cases, the State Government should bear in mind that any delay in recruitment would cause great loss to the students of the schools and it should
be diligent in considering such representations, without any delay. The State Government shall also instruct the Employment Exchanges, that as and
when the request is made by private educational institutions, the Employment Exchanges shall send the list of candidates if, available with the
Employment Exchanges, answering the specifications mentioned in the requisition made by the private Educational institutions, within the time
specified. If no such candidate is available, it shall also intimate the institutions immediately. We may also point out here that the Director of School
Education and also the private school management must also compute the vacancies well in advance and take steps to fill up the same. If this is
followed, there will not be any difficulty and the vacancies will be filled up, without any loss of time. In view of the decision arrived at by us, the
mandamus sought for by the Petitioners cannot at all be issued. The writ petitions are dismissed, subject to the directions and observances made in
the order. Consequently the writ appeal is also dismissed. However, there shall be no order as to costs. The C.M.P. and W.M.Ps. are also
dismissed.