(Prayer: Appeal filed under Clause 15 of the Letters Patent Appeal against the order passed by this Court in W.P(MD)No.1078 of 2018, dated 20.02.2018.)
M. Sathyanarayanan, J.
1. The official respondents in W.P(MD)No.1078 of 2018 are the appellants.
2. The respondent/writ petitioner made a challenge to the proceedings of the second appellant, dated 19.01.2017 and the consequential proceedings of the second appellant, dated 26.09.2017 with a prayer to quash the same and with a further direction, directing the appellants 2 and 3 to approve forthwith the promotion of T.Thusnevis Savariammal as B.T., Assistant (Science) in their school with effect from 01.06.2015 and disburse the grant in aid towards her salary and other attendant benefits.
3. The respondent/writ petitioner also filed W.P(MD)No.1079 of 2018 praying for issuance of a writ of Mandamus directing the appellants 2 and 3 to approve forthwith the appointment of R.Merchy as Tamil Pandit in their school with effect from 26.06.2015 and consequently, disburse the grant-in-aid towards her salary and other attendant benefits.
4. Both the writ petitions were taken up together and vide common order, dated 20.02.2018, the learned Single Judge had allowed the writ petitions.
5. The official respondents aggrieved by the allowing of W.P(MD)No. 1078 of 2018, had filed this writ appeal and also filed W.A(MD)No.201 of 2000 against the allowing of W.P(MD)No.1079 of 2018.
6. The respondent/writ petitioner, in the affidavit filed in support of W.P(MD)No.1078 of 2018, among other things, averred as follows:
* The school was initially established as a Primary School in the year 1946 and was upgraded as Middle School in the year 1956 and again, upgraded as High School in the year 1997 and it was bifurcated as Primary and High School.
* The school was also further upgraded as Higher Secondary School in the year 2011 and it is receiving aid upto Middle School level, i.e., Standards VI to VIII and the medium of instruction is Tamil and 329 students are studying in the Aided Section.
* The school is providing education free of charges and a small sum is being collected as prescribed by the Government and it is known for academic excellence and extra-curricular activities and no discrimination is shown or exhibited on the ground of caste, creed or religion.
* The number of staff and the quantum of grant-in-aid are fixed periodically by the Government and the qualification for appointment of teachers is also governed by the Rules framed by the Government and the teachers manning Middle School Sections, viz., Standards VI to VIII are having the Secondary Grade Traning and had the qualification of Teachers Training Certificate (Diploma in Teacher Education) and they were running Classes upto May 2002.
* The Government of Tamil Nadu having taken into consideration the fact that the Secondary Grade Teachers with Teacher Training Certificate/Diploma in Teacher Education, were not qualified enough to handle the advanced syllabus prescribed for Middle School Sections (Standards VI to VIII), evolved a policy of appointing Graduate Teachers in those posts and accordingly, the School Education (U1) Department, has issued G.O.Ms.No.79, dated 14.06.2002.
*In terms of the said Government Order, a decision has been taken to upgrade the post of Secondary Grade Teacher into that of Graduate Teacher with effect from 01.06.2002 and the permission for such conversion also stipulated in the Government Order and after issuance of the said Government Order, no appointment of Secondary Grade Teacher has been made.
* The said Government Order also stipulated that the post of Secondary Grade Teacher should be upgraded only when they fell vacant and thereafter, the persons with Graduate qualification should be appointed in the said post and the upgraded posts will be known as Middle Grade Graduate Teachers.
* Hence, the Graduate Teachers having qualification of B.A.,/B.Sc., with B.Ed., came to be appointed as Middle Grade Graduate Teachers against the vacancies arising in the post of Secondary Grade Teacher as and when they fell vacant since 01.06.2002.
*The post of Secondary Grade Teacher in the respondent's/writ petitioner's school fell vacant on 01.06.2015 on account of the retirement of the A.Anthony Xavier Arockiamary on 31.05.2015 and in that vacancy, in terms of the above cited Government Order, the respondent/writ petitioner had promoted one T.Thusnevis Savariammal as B.T., Assistant in Science with effect from 01.06.2015 considering the need of a Science Teacher. The said person was also working in the same school as Secondary Grade Teacher since 02.06.1986 and she possesses the required qualification for the post of B.T., Assistant and she also joined as B.T., Assistant in Science on 01.06.2015 and continues to work till date.
* The respondent/writ petitioner sent a proposal to the third appellant herein on 03.07.2015 requesting to approve the promotion of T.Thusnevis Savariammal as B.T., Assistant in Science with effect from 01.06.2015 and also sought for approval of appointment of R.Mercy as Tamil Pandit, who came to be appointed by way of transfer and consequential vacancy due to promotion of T.Thusnevis Savariammal as B.T., Assistant and the third appellant returned the proposals and were represented and however, the third appellant insisted the school to submit a proposal for upgradation of Secondary Grade Post into that of B.T., Assistant to the second appellant.
* Though in terms of the said Government Order, it is not at all required, but at the insistence of the third appellant, the respondent/writ petitioner had sent a representation praying for such upgradation on 20.07.2016.
* The second appellant, vide proceedings dated 19.01.2017, had accorded approval for upgradation of the Secondary Grade Post as B.T., Assistant, however, with a rider in the condition No.17, to fill up the post only from the academic year 2016-2017 instead of 2015-2016 and also insisted for submission of a fresh proposal from the academic year 2016-2017 instead of 01.06.2015.
* The respondent/writ petitioner submitted the objection to the second appellant on 31.01.2017 and certain clarifications were sought and they were also clarified and once again, it was returned for which, a detailed reply has been sent on 11.07.2017. However, the second appellant taking into consideration the purport of the Government Order and other facts and circumstances of the case, had informed the respondent/writ petitioner, vide proceedings dated 26.09.2017 that he is having power to grant permission for conversion based on the need of the school, however, he has no power to grant pre-dated permission and in view of the said proceedings, the third appellant is now insisting the school to issue a fresh appointment order and submit a fresh proposal seeking approval with effect from 01.06.2016.
* Therefore, the respondent/writ petitioner made a challenge to the impugned proceedings of the second appellant, dated 19.01.2017 with a consequential proceedings of the second appellant, dated 26.09.2017 by filing the writ petition in W.P(MD)No.1078 of 2018.
* The respondent/writ petitioner took a primordial stand that the contents of G.O.Ms.No.79, dated 14.06.2002, do not stipulate as to the approval/permission for upgradation and it is automatic and that apart, it is a minority educational institution and as such, no permission is required to fill the sanctioned vacancy and therefore, the second appellant is bound to grant permission for such upgradation from the date on which it became vacant and as a natural corollary, the third appellant is bound to grant approval for the post of B.T., Assistant from the date of such appointment.
7. The writ petition in W.P(MD)No.1078 of 2018, along with W.P(MD)No.1079 of 2018 which pertains to the appointment of R.Mercy as Tamil Pandit, are entertained. The official respondents filed individual counter affidavits.
8. The third appellant/third respondent, in the counter affidavit, took the following stand:
* The third appellant/third respondent has explained the reasons for issuing G.O.Ms.No.79, dated 14.06.2002 and also dealt with the factual aspects and would aver that it was the duty of the school to get upgraded the vacant Secondary Grade Post according to the instructions and after getting required particulars, the second appellant issued orders upgrading the post of Secondary Grade Teacher as B.T., Assistant, vide order dated 19.01.2017 and it is prospective in nature and also took a stand that the respondent/writ petitioner school, suo motu, filled the post before getting specific orders from the competent authority, namely, the second appellant, on 01.06.2015.
* It is further pointed out that though the minority is based on religion or language, they are having fundamental freedom to establish and manage educational institutions of their own choice, but the State has a right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers and health, hygiene and discipline and allied matters and it, in no way, shall be construed as interference of minority's fundamental right of administering their educational institutions. There are no provisions of retrospective upgradation and the action of the respondent/writ petitioner promoting T.Thusnevis Savariammal as B.T., Assistant in Science without getting the approval of conversion, is irregular and therefore, took a stand that the impugned proceedings are perfectly in order.
9. In W.P(MD)No.1079 of 2018 also, counter affidavit has been filed and the learned Judge took both the writ petitions together and taken note of the dismissal of W.A.No.828 of 2014 and 129 to 132 of 2015, vide judgment dated 22.04.2016, wherein it has been held that the approval has to be granted only from the date of appointment and not later, i.e., from the date on which, the promotion/conversion is granted and further taken into consideration that it was a sanctioned post, for which, no prior approval is necessary, the act of the respondent/writ petitioner school is in order, especially, for the reason that T.Thusnevis Savariammal was already working as Secondary Grade Teacher and became qualified for the post of B.T., Assistant and she was promoted as B.T., Assistant in the resultant vacancy.
10. The official respondents aggrieved by the said order, had filed this writ appeal.
11. The primordial submission made by the learned Special Government Pleader appearing for the appellants is that for upgrading the post of Secondary Grade Teacher to the post of B.T., Assistant, permission is required and admittedly, the respondent/writ petitioner school promoted T.Thusnevis Savariammal as B.T., Assistant (Science) without prior permission and though there were repeated representations and the mistakes were pointed out, the respondent/writ petitioner school was insisting for grant of approval from the date of initial appointment and it was further added that the common judgment, dated 22.04.2016, has no application to the case on hand and prays for interference.
12. Per contra, the learned Counsel for the respondent/writ petitioner has drawn the attention of this Court to G.O.Ms.No.79, dated 14.06.2002 and would submit that in terms of the said Government Order, there is no specific stipulation as to the prior permission for appointment of an eligible teacher to the post of B.T., Assistant and in terms of the said Government Order, it has become a sanctioned post for which, no prior approval is required if the institution happened to be a minority institution and the learned Judge, taking into consideration the factual aspects and legal position, rightly allowed the writ petition and prayed for the dismissal of the writ appeal with costs.
13. The learned Counsel for the appellant has also drawn the attention of this Court to the subsequent Government Orders in G.O.Ms.No.100, School Education (Budget) Department, dated 27.06.2003; G.O.Ms.No.125, School Education (X2) Department, dated 12.11.2003 and G.O.Ms.No.174, School Education (G) Department, dated 15.09.2006.
14. This Court has carefully considered the rival submissions and also perused the materials placed on record.
15. The purpose for which G.O.Ms.No.79, dated 14.06.2002 came to be issued, is for the purpose of improving the standard of education in respect of the students studying Standards VI to VIII. The said Government Order also says that if the Secondary Grade Teacher retired or tendered resignation or promoted to higher post, otherwise the said post became vacant, a new post, namely, Middle Grade Graduate Teacher is to be created and in terms of the vacancy position on 01.06.2002 and from the academic year 2002-2003, the said new post is to be filled up by the Teachers having B.Ed., qualification by increasing the scale of pay from Rs.4,500-125-7000 to Rs.4,625-127-7000. The said Government Order further stipulates that when the new post of Middle Grade Graduate Teacher is created, the post of Secondary Grade Teacher is to be considered as lapsed. The post of Middle Grade Graduate Teacher cannot be taken as additional post. Sub paragraph (3) of the Paragraph 1 of the said Government Order would also state that since on account of creation of Middle Grade Graduate Teacher post, the relevant amendment should be brought forth to the Rules. Sub paragraph (4) says that in respect of Government Aided Schools, the additional expenditure incurred in the form of advance increment is to be borne by the respective Management and details/opinion in respect of Middle Grade Graduate Teachers is to be obtained District wise and after getting the permission of the Government only, the post should be filled up and thereafter, the amendments should be made.
16. It is relevant to extract hereunder sub paragraph (4) of Paragraph 1 of G.O.Ms.No.79, dated 14.06.2002:
17. It is the stand of the respondent/writ petitioner that it is a case of upgradation of the Secondary Grade Teacher to Middle Grade Graduate Teacher. The heading of the said Government Order would read as follows:
“Schools – Standards VI to VIII – Appointment of Middle Grade Graduate Teachers in lieu of Secondary Grade Teachers – Orders issued.”
18. Paragraph 1 of the said Government Order, would read, among other things, that a new post of Middle Grade Graduate Teacher is to be created gradually and in the said post, from the academic year 2002-2003, the Teachers having B.Ed., qualification should be appointed by giving advance increment (Rs.4,625 – 127 – 7000).
19. In the light of the said contents of the said Government Order, an incidental question is arising for consideration as to the meaning and purport of “upgradation”.
20. The Honourable Supreme Court in BSNL v. R.Santhakumari reported in (2011) 10 SCALE 136, has taken into consideration various decisions and in paragraph 21, culled out the following principles:
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both that is advancement to a higher position and advancement to a higher pay scale - are described by the common term 'promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.”
21. The contents of the said Government Order would disclose that the post of Secondary Grade Teacher has been abolished and in it's place, a new post of Middle Grade Graduate Teacher is ordered to be created gradually and from the year 2002-2003, it shall be filled up with qualified Teachers in the pay scale of Secondary Grade Teacher (Rs.4,500-125-7000) with retrospective increase in pay (Rs.4,650-127-7000).
22. Sub paragraph 4 of the Paragraph 1 of the said Government Order has taken into consideration the fact that the said advance increment and the stipulated additional expenditure shall be borne out by the respective Management and in respect of the Middle Grade Graduate Teacher post, the proposals should be sent District wise and after getting the permission of the Government, it shall be filled up and thereafter only, the amendments will be made to the relevant Rules.
23. Though the learned Counsel for the respondent/writ petitioner has produced the additional typed set of papers, dated 24.07.2020, containing the Government Orders in G.O.Ms.No.100, School Education (Budget) Department, dated 27.06.2003; G.O.Ms.No.125, School Education (X2) Department, dated 12.11.2003 and G.O.Ms.No.174, School Education (G) Department, dated 15.09.2006, the contents of the said Government Orders do not disclose as to the amendment made to the relevant Rules. 24. The fact remains that a new post of Middle Grade Graduate Teacher is ordered to be created gradually after the above cited Government Order in G.O.Ms.No.79, dated 14.06.2002 and increase in scale of pay has also been made and that apart in respect of the Middle Grade Graduate Teacher post, District wise opinion/details to be collected and after getting the permission from the Government, the post should be filled up.
25. In the considered opinion of this Court, in the light of the contents of the Government Order in G.O.Ms.No.79, dated 14.06.2002, coupled with the legal position as to the distinction between promotion and upgradation, the stand taken by the respondent/writ petitioner that there was an automatic upgradation as Middle Grade Graduate Teacher, is unsustainable. It is also to be noted at this juncture that on account of retirement of A.Anthony Xavier Arockiamary, who was holding the post of Secondary Grade Teacher, the respondent/writ petitioner had promoted T.Thusnevis Savariammal as B.T., Assistant (Science) with effect from 01.06.2015 and she also joined the said post on the said date. Thus, it is their stand that it is a case of promotion only.
26. Now, coming to the case of the respondent/writ petitioner, after grant of approval of the said appointment and the date of her appointment as 01.06.2015, the fact remains that her competency and qualification to hold the said post have not been doubted by the educational authorities and she was working as B.T., Assistant (Science) ever since the date of appointment, viz., 01.06.2015 and discharged her duties.
27. It is not the case of the appellants/official respondents that the promotion of T.Thusnevis Savariammal as B.T., Assistant (Science), has been made to a non-sanctioned post as she possessed the requisite qualification in the form of B.Sc., and B.Ed., Degrees.
28. In Brahmo Samaj Education Society v. State of W.B., reported in (2004) 6 Supreme Court Cases 224, the scope of Article 19(1)(g) and (6) of the Constitution of India came up for consideration and the Honourable Supreme Court has taken into consideration the decision in T.M.A.Pai Foundation v. State of Karnataka reported in (2002) 8 Supreme Court Cases 481 and extracted paragraph 72 of the said judgment, wherein it is observed, “... The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State. ... The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. ... In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. ... The State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution.”
29. In Kolawana Gram Vikas Kendra v. State of Gujarat reported in (2010) 1 Supreme Court Cases 133, the extent of Government control over minority educational institution which is receiving 100% grant, came up for consideration and it is relevant to extract hereunder paragraph 7:
“7. In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there were actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter-affidavit.”
30. In Sindhi Education Society v. Government of NCT of Delhi reported in 2010 (6) SCALE 578, the enforceability of Rule 64(1)(b) of the Delhi School Education Rules, 1973, in respect of a linguistic minority school came up for consideration and in paragraph 49, it is observed, “... The right to receive grant thus has to be accepted as a legitimate right in contra-distinction or opposed to legal right to get recognition including the case of a minority institution. ... to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law”. It is also relevant to extract hereunder paragraph 63:
“63. A linguistic minority has constitution and character of its own. A provision of law or a Circular, which would be enforced against the general class, may not be enforceable with the same rigors against the minority institution, particularly where it relates to establishment and management of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration. Every linguistic minority may have its own socio, economic and cultural limitations
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. It has a constitutional right to conserve such culture and language. Thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64(1)(b), could be enforced against the general or majority category of the Government aided school but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers.” 31. It is observed in the said paragraph that “a linguistic minority educational institution would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community” and insofar as the enforcement of Rule 64(1)(b) of the Delhi School Education Rules, 1973, is concerned, it is further observed in the said paragraph that “the said Rule could be enforced against the general or majority category of the Government aided school, but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority.” 32. It is also a well settled position of law that once it is a sanctioned post, for which, a vacancy arose in respect of a minority educational institution, it need not obtain prior approval. 33. In the case on hand, it is not even the case of the appellants/official respondents that the post of B.T., Assistant (Science) in which, T.Thusnevis Savariammal got her promotion with effect from 01.06.2015, is not a sanctioned post and the date on which, she assumed charge and worked in that capacity is also not under dispute. The only stand appears to be that the second appellant lacks power to grant retrospective approval. 34. In the considered opinion of this Court, in the light of the reasons assigned above, that stand is untenable. 35. Therefore, for the reasons assigned above, W.A(MD)No.200 of 2020 deserves dismissal and accordingly, the same is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected civil miscellaneous petition is also dismissed.