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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
D. HARIPARANTHAMAN, J.
Deva Asir - Petitioner
Vs.
The Secretary to Government, School Education Department, State of Tamil Nadu & Ors. – Respondents
W.P.(MD) Nos.11481 of 2008, 1740 of 2009, 4949, 4950 and 12508 of 2011, 12469 and 16325 of 2012, 1228, 2885, 10115, 10116, 10117, 10860, 10861, 10862, 13011, 13924, 13925, 18000, 18130, 18193 of 2013, 318, 623, 1075, 1713, 2041, 2399, 3141, 3327, 4059, 4060, 5164, 5174, 7457, 7561, 7562, 9879, 12045 to 12048, 12085, 12159, 13661, 13759, 14542 to 14544, 15432, 17074, 17089, 17090, 17119, 17574, 17578, 17857, 17902, 19038, 19597, 19773 to 19778, 19926, 20252, 20289, 20400, 20401, 20560, 20765, 20971, 20972 of 2014, 529, 986, 1296, 1935, 1977, 2394, 2966, 3068, 3412 to 3415, 3706, 3869, 3887, 3892, 4955, 5680, 7773, 8859, 10955, 12036, 12777, 13072, 13242, 13868, 14095, 15148, 15408, 16063, 16183, 16184, 16637, 16675, 17197, 17199, 17207, 17280, 18420, 18925, 20013, 20374, 20379, 20428, 20520, 20748, 20947, 20974, 21271, 21375, 21716, 21717, 21804, 21988, 22026, 22102, 22107, 22108, 22206, 22218, 22346, 22429 to 22431, 22613 to 22620, 22626 to 22628, 22739, 22794, 22810, 23397, 23401, 23417, 23523 to 23526 of 2015, 12, 25, 34 to 37, 47, 272, 278, 314 to 316, 549, 818 to 820, 892, 895, 976, 977, 988, 989, 1072, 1081, 1082, 1085, 1146, 1368, 1501 to 1503, 1640 to 1642, 1755, 1757, 1785, 1898, 1911 to 1913, 1977, 1978, 2060, 2097 to 2100 of 2016 and connected miscellaneous petitions in these petitions
Decided on : 15-03-2016
Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 - Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 - Government of India Act, 1935 – Constitution of India,1950 - Articles 37, 41, 45 and 46 - Admission to aided - Caste system has been in existence for centuries may to vast majority of people in caste ridden Indian Society - It is an undeniable fact one may like it or not thousands of years in India - There were many Kingdoms - There were many religions - But caste system continued to exist in feudal system - That was the Rule of day Society was basically divided into Four (Caste) and Scheduled Caste are the outcast system of education that prevailed in those days was confined to upper caste - aforesaid fact is reality though our Literatures speak a volume about importance of education – Immortal Poet whose will surpass all ages and transcend all religions spoke about education - That is how they landed in India during Century - There was a breach in feudal system in India due to coming in of Europeans into India - Held, Division Bench of this Court in judgment has categorically held that Rule 15(4) is only applicable to teachers - Said judgment relates to appointment of Junior Assistant - It is useful to extract the following passage in of judgment - It is seen from rule 15(4) which deals with the appointment of teachers only nothing is stated in entire rule about appointment of non-teaching staff - learned Additional Government Pleader has not placed any clarification issued by Government extending above said provision of law to appointment of any other posts in private schools - Therefore when rule is confined to appointment of teachers in private schools Junior Assistant is a non-teaching post which is not covered - Miscellaneous Petitions are closed
The issue in these writ petitions concerns appointment and approval of non-teaching staff in aided minority and non-minority schools governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules, 1974. (!)
Education was historically confined to upper castes in caste-ridden Indian society, despite literary emphasis on its importance. (!) (!) (!)
Constitutional provisions under Articles 41, 45, 46 mandate state efforts for right to education, free compulsory education up to age 14, and promotion of weaker sections' interests. (!) (!) (!) (!) (!)
Article 21A, inserted in 2002, makes free education up to age 14 a fundamental right; school education up to +2 level is constitutionally guaranteed by reading Articles 21A, 30, 41, 45, 46 together. (!) (!)
Private aided schools in Tamil Nadu, established by missionaries/philanthropists, receive state aid and provide free education; no fees collected practically. (!) (!) (!) (!)
Private unaided schools have mushroomed, catering to affluent while aided schools serve downtrodden; state policy post-1991-92 denies aid to new schools via Section 14A. (!) (!)
Act and Rules comprehensively regulate aided private schools, including sanction, appointment, qualifications, and grants for teaching/non-teaching staff. (!) (!) (!) (!)
"Private school" defined under Section 2(7) includes pre-primary to higher secondary schools, whether aided or not. (!) (!) (!)
Director of School Education sanctions posts based on academic needs, teacher-pupil ratio, financial considerations (Rule 15(1)); regular vacancies filled by qualified persons on regular basis (Rule 15(3)); qualifications in Annexure V. (!) (!) (!) (!)
For non-teaching staff: Clerks need S.S.L.C. with college eligibility; Record Clerks/Lab/Library Assistants need S.S.L.C. completed; Peons need VIII standard pass; Watchmen etc. need ability to read/write Tamil. (!)
Reservation applies to non-minority schools (Rules 15(7),15(8)); DEO/DEEO sanctions grants to sanctioned posts (Rule 11(2), Section 14). (!) (!) (!)
No prior permission required to fill vacancies in sanctioned posts; schools appoint immediately to avoid prejudice to education. (!)
Past bans on recruitment (e.g., G.O.Ms.No.212/2001) lifted; appointments during ban approved by court; post-lift refusals also overturned. (!) (!) (!) (!)
G.O.Ms.No.115/2007 restricts non-teaching appointments: outsource Watchman/Sweeper/Scavenger; fill only 50% Office Assistants, all existing Junior Assistants; future vacancies restricted. (!) (!) (!) (!) (!) (!) (!)
G.O.Ms.No.203/2010 directs outsourcing 467 Group D posts; allows filling 485 others like Junior Assistants. (!) (!)
Govt. Letter 09.07.2012 imposes ban pending expert committee guidelines. (!)
Act/Rules prevail over executive GOs/instructions; cannot override statutory scheme for appointments/grants. (!) (!) (!)
DEOs/DEEOs must approve qualified appointments to sanctioned posts and sanction grants; denial only for specific statutory reasons (e.g., non-compliance, no recognition). (!) (!) (!) (!)
No prior permission needed for non-teaching appointments in sanctioned posts; Rule 15(4) applies only to teachers. (!) (!) (!)
Aided schools cannot collect fees (Section 32, Rule 23); cannot be directed to outsource/meet expenses themselves. (!) (!) (!) (!)
State duty-bound for free compulsory school education up to +2; inseparable classes; cannot deny aid to existing aided schools citing finances. (!) (!) (!) (!) (!) (!)
Minority aided schools protected under Article 30; certain Act/Rules provisions inapplicable per prior court declaration. (!) (!)
G.O.Ms.No.115/2007, G.O.Ms.No.203/2010, Letter 09.07.2012 quashed; DEOs/DEEOs directed to approve appointments/sanction grants within 6 weeks. (!) (!) (!) (!)
The issue involved in all these writ petitions relates to the appointment and approval of non-teaching staff in Aided Minority and Non-Minority Schools governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 framed in exercise of the powers conferred under the said Act. Hence, these writ petitions are taken up together for hearing and disposed of by way of this common order.
IMPORTANCE OF EDUCATION :
2.1. Indeed, it is sorry to record that education was deprived
2.2. The caste system has been in existence for centuries, nay, to the vast majority of the people in the caste ridden Indian Society. It is an undeniable fact, one may like it or not. thousands of years in India. There were many Kingdoms. There were many religions. But the caste system continued to exist in the feudal system. That was the Rule of the day. The Society was basically divided into Four Varnas (Caste) and the Scheduled Caste are the outcast. The system of education that prevailed in those days was confined to the upper caste.
2.3. The aforesaid fact is the reality, though our Literatures speak a volume about the importance of education. The immortal Poet Thiruvalluvar, whose Thirukkural will surpass all ages and transcend all religions spoke about education in 40 Kurals in 4 Chapters (Adhigarams). In one of the Kurals, Thiruvalluvar said :
“Learning is excellence of wealth that none destroy : To man nought else affords reality of joy.”
2.4. There was Industrial Revolution in Europe resulting in enormous production by modern industries and a new capitalist class emerged over throwing the feudal Kingdom. They took over power from the feudal Kings. Such enormous production necessitated various European countries to have trade all over the world to market their products. That is how, they landed in India during 17th Century. There was a breach in the feudal system in India, due to the coming in of the Europeans into India. The Capitalist mode of production introduced by the Europeans in the place of feudal system brought a sea change in the caste system. That is, the introduction of the Railways, Modern Industries, Modern Schooling in contrast to the Kurugulas, etc. made an effective inroad in the caste system. However, the caste system still continues to exist.
2.5. The Apex Court in the judgment in Avinash Mehrotra V. Union of India, (2009) 6 SCC 398, recorded the following facts in paragraphs 24 and 25 :
“24. .... The Hunter Commission in 1882-1883, almost 125 years ago, recommended universal education in India. It proposed to make education compulsory for the children.
25. The Government of India Act, 1935 provided that “education should be made free and compulsory for both boys and girls”. While debating on a Bill in the Imperial Council in 1911, Shri. Gopala Krishna Gokhale strongly advocated that elementary education should be both compulsory and free.”
2.6. While so, India attained Independence on the 15th August 1947. It is the past history that most of the Indian territory came under the control of the British and other European countries, while the rest of the territories were under the control of hundreds of feudal Kings. The foreign rule came to an end. Our Constitution was enacted thereafter. Education occupies an important place in our Constitution. At three places, that is, Articles 41, 45 and 46, the Constitution speak on education.
2.7. At this juncture, it is useful to extract Articles 41, 45 and 46 of the Constitution of India :
“41. Right to work, to education and to public assistance in certain cases.— The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and
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