JUDGMENT:

S.B. Sinha, J.

1. Leave granted.

2. Appellant is an aided institution. It is aided by the State of Tamil Nadu. Terms and conditions of its teachers are governed by Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 framed under Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.

3. Respondent was appointed in the said school on or about 11.7.1977. He was a graduate in Master of Education as also in Master of Science. He was having the requisite qualification for recruitment to the said post.

4. The State, however, issued a Government Order dated 16.9.1994 raising the qualification of a teacher, inter alia, stating :

"XV Staff Requirements:

Teaching Staff Qualifications etc.

(b)Subject Teacher A Post Graduate Degree in the relevant subject and M.Ed. Degree with teaching experience preferably in recognized schools.

There shall be four subject teachers to handle Tamil, English, Mathematics, Science and Social Science. The Headmaster shall handle one of the five subjects."

5. On the plea that the respondent did not hold the requisite qualifications in terms of the said GOMs dated 16.9.1994, his services were terminated by the appellant by an order dated 6.1.1995 with effect from 22.12.1994.

6. Respondent filed a writ petition before the High Court questioning the said order of termination, inter alia, stating that the said purported G.O.Ms. dated 16.9.1994 could not have been given a retrospective effect.

7. A learned Single Judge of the said Court, by an order dated 5.9.2005 quashed the said order of termination opining that once the appointment was made in a lawful manner and the teachers were found to have the requisite qualifications as prescribed at the time of such appointment, a revision in qualification so as to be applied retrospectively and affect the career of an appointee would not be permissible. Appellant institution was held to be amenable to writ jurisdiction. It was also found that the State had not issued any direction to remove the respondent from service. On the said findings, it was directed :

"Therefore, it is not open to the respondents to adopt an erroneous interpretation and to deny employment to the petitioner who has been serving the school from 1977. It is pertinent to note that in W.P.M.P. No.9628 of 1995, the learned Single Judge has issued interim orders on 21.4.1995 itself that no appointment shall be made for a period of two weeks if the third respondent had not appointed any one in the place of the Petitioner. There is nothing on record to show that the said interim order had been vacated subsequently, though the respondent, in their counter affidavit, has stated that a qualified teacher had been appointed on 23.12.1994."

8. An intra court appeal was preferred thereagainst before the Division Bench of the said Court. The question which was raised before the said Bench was limited to the question of payment of the back wages to the respondent and as to whether the State is liable therefor or the appellant institution. The contention of the parties were noted by the Division Bench as under :

"According to the appellant, namely the Teacher's Training Institute, the teachers services were terminated only because the Government repeatedly wrote letters that the Government Order has to be strictly adhered to and that it is only at their instructions that the teacher was terminated. The learned Special Government Pleader would submit that while it is true that the Government insisted on all Institutes to strictly comply with the conditions stipulated in the Government Order, no instructions had been specifically issued in this case to terminate the services of the teacher, nor had any instructions been issued to comply with the Government Order retrospectively in respect of any person who has already been in service. According to them, since they are bearing the expenditure arising out of the appointment of the new teacher, they cannot be saddled with the burden twice. It is al