F.M. Ibrahim Kalifulla, J.

1. This order of reference came to be made by the Division Bench in its order dated 11. 2007 on finding a conflict of view as between two Division Bench Judgments reported in State of Tamil Nadu, etc. and 93 others v. The T.N. Recognised Private Schools Managers Assn., etc., 1995 WLR 499 and Nehru Memorial College v. The State of Tamil Nadu and others, 2003 WLR 31.

2. The issue relates to appointment of teachers in the Private Aided Schools. The first respondent in the Writ Appeal preferred Writ Petition No.5643 of 2000 challenging the order of the third appellant dated 9. 1999 in proceedings No.O.Mu.9189/Aa4/97 in and by which the third appellant expressed its disinclination to approve the appointment of the first respondent as graduate teacher in the second respondent school. Pending Writ Petition, in W.P.M.P. No.8556 of 2000 learned single Judge granted an Order of Interim Injunction restraining the third appellant from terminating the services of the first respondent and also granted further directions to pay salary from the date of Interim Injunction pending disposal of the Writ Petition. As against the said interim order, the appellants have come forward with the Appeal.

3. The second respondent in W.A. No.1680 of 2002 is a Private school to which the Tamil Nadu Recognised Private schools Regulation Act and Rules are applicable. The first respondent came to be appointed in pursuance of the notification issued by the second respondent notifying the vacancies in a newspaper. The first respondent thus came to be appointed in an existing vacancy as Drawing Master by order dated 8. 1997. The refusal to approve the said appointment came to be made by the third appellant in the light of Government Order in G.O.Ms. No.873 dated 111. 1995. The said Government Order in turn came to be issued in the light of an earlier Government Order in G.O.Ms. No.1138 dated 29. 1978. The validity of G.O.Ms. No.1138 was subject matter of challenge in Writ Petition No.879 of 1993. The Division Bench in its decision therein reported in State of Tamil Nadu, etc. and 93 others v. The T.N. Recognised Private Schools Managers Assn., etc., 1995 WLR 499, upheld the said Government Order and further directed that while the state Government is empowered by the statue to issue directions to the private educational institutions receiving aid as to the mode and manner of filling up of vacancies, the power of the management, in the selection of the candidate is not taken away. It went on to hold that while making a selection from out of candidates sponsored by the employment exchange, in the event of the management finding that no candidate sponsored by employment exchange was suitable can seek for the permission of the concerned authority to proceed with the recruitment from the open market.

4. The Division Bench after noting the submission of the counsel appearing for the Private educational Institutions that for quite some time the posts were not filled up and thereby the students community were put to serious prejudice, directed the state Government to instruct the employment exchanges to send the list of candidates within a specified time limit and if no suitable candidate is available, intimate the same to the institutions immediately. simultaneously, the Division Bench also directed that appointments so far made up to the date of its judgment should not be affected and that such appointments should be approved by the concerned authorities based on merits.

5. Subsequently, the very same G.O.Ms. No.1138 dated 211. 1998 came up for consideration before another Division Bench and in the decision reported in Nehru Memorial College v. The State of Tamil Nadu and others, 2003 WLR 31, the subsequent Division Bench by relying upon the decision of the Honourable supreme Court reported in Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Vishweshwara Rao and others, 1996 (6) CC 216, as well as Rule 15(4)(i)