Aided Middle School Rep.by Its Correspondent Nagapattinam District Vs. Principal Secretary to Government Social Welfare and Nutritious Meal Program Department and Others - Court Judgment

(Prayer in W.P.No.18025 of 2012: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 1st respondent in G.O.Ms.No.4, Social Welfare and Nutritious Meal Program Department dated 06.01.2011 and quash the same and consequently directing the 1st respondent to select and appoint Noon Meal Organiser only from the panel sponsored by the Petitioner School Management.)

COMMON ORDER:

These are the strange cases filed by the managements of the private School running in Nagapattinam and other Districts. In these three Writ Petitions, the challenge made by the petitioners is the order passed by the State Government in G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department dated 6.1.2011 and after setting aside the same seeks for a direction to select and appoint Noon Meal Organizers only from the panel sponsored by the petitioner management.

2. When Writ Petition Nos.18025 to 18030 of 2012 came up on 13.7.2012, this Court directed the respondents to maintain status quo till 17.7.2012 as similar order has been passed batch cases. However, the challenge made by the management is misconceived as they have no locus standi in filing the Writ Petitions.

3. It must be noted that the Aided Private School is covered by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder. Under the provisions of the said Act, the State Government can frame Rules regulating the number, qualifications and conditions of service (including promotion, pay, allowance, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary proceedings) of the teachers and other persons employed in any private school. Pursuant to the power, the State Government has framed Rules, viz., Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Rule 15(1) provides that the number of Teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by Director of School Education from time to time with reference to the academic requirements teacher-pupil ratio and overall financial considerations. The independent scheme of the noon-meal provision for students studying in Schools does not arise either under the provisions of the Act or under the Rules and no post of Noon Meal Organizer has been sanctioned by the State Government to any School.

4. On the contrary, it is the scheme and an adhoc post was made on regular basis by creating a separate Department by the Government functioning under the Social Welfare Department. A separate Minister incharge of the Department and also a separate Directorate monitoring the Department have been provided for. The funds for the post of noon meal organizers under the scheme has been provided by the State Government and the appointments are done on the basis of the various orders issued by the Government.

5. By the District Collector, after getting recommendation by the Committee concerned, an advertisement was made in papers calling for applications and after scrutinizing of the applications and on the basis of the committee's interview and qualifications, a formal order is issued by the District Collector. This Court in D.Pothumallee and others vs. District Collector, Collectorate, Thiruvarur District and others reported in (2010) 5 MLJ 46 holding that the post under the Noon Meal scheme though do not constitute the service, but yet it is a public employment attracting the provisions of the Articles 14 and 16 of the Constitution. This Court held that once it becomes a public employment, the necessary corollary with the Rules of reservation for public employment should be scrupulously followed.

6. It is pursuant to the direction issued by this Court, the State Government issued G.O.Ms.No.142, Social Welfare and Nutritious Meal Programme Department dated 6.7.2010 implementing the judgment of this court and it introduced the Rules of reservation for appointing the post. But, notwithstanding the same, the said private school management filed Writ Petitions on finding that their recommendation for the appointment was not considered as was done in the past.

7. A batch of Writ Petitions in W.P.(MD) Nos.3799 of 2007 and etc., which was originally posted before the Division Bench and was subsequently transferred to the single Bench, was disposed of by a common order dated 3.11.2011. In the said judgment in R.Alagar Samy vs. the District Collector, Virudhunagar District, this Court passed a detailed order and in the course of the judgment, it was brought to the notice of this Court that the State Government, subsequent to the earlier order in G.O.Ms.No.142, Social Welfare and Nutritious Meal Programme Department dated 6.7.2010 had issued G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department dated 6.1.2011. While continuing the same method of employment, the G.O., which is now the subject matter of challenge in the Writ Petition, the State Government granted exemption in respect of minority schools. This court taking note of the said exemption, in paragraphs 25 and 26 of the said judgment had observed as follows:

"25. After the decision was accepted and implemented by G.O.No.142, the State has no power to delegate its essential constitutional power of employment to any private agency and cannot compromise the scheme of communal roster in such employments. First of all, the minority management do not have any say in a matter if children who are studying in the centres are fed by the State Government. The State Government do not require the consent of the management for feeding poor children under the noon meal scheme. Even the minority management is bound by the constitutional scheme of rendering social justice. They are bound to obey the laws of the land. It is only in case where the right of the management is taken away in the matter of appointment of their own teachers and non teaching staff, the question of exercising right under Article 30(1) will come into play. Even a minority management should follow the laws of the land as held by the Supreme Court in Christian Medical College Hospital Employees' Union v. C.M.C. Vellore Assn., reported in (1987) 4 SCC 691. The following passage found in paragraph 18 may be usefully extracted below:

“18. .....Due obedience to those laws would assist in the smooth working of the educational institutions and would facilitate proper administration of such educational institutions. If such laws are made inapplicable to minority educational institutions, there is very likelihood of such institutions being subjected to maladministration. Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment, unemployment, security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 30(1) of the Constitution of India is violated. If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be due to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 30(1) violated? Certainly not. Similarly the right guaranteed under Article 30(1) of the Constitution is not violated, if a minority school is ordered to be closed when an epidemic breaks out in the neighbourhood, if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school. In the same way if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose. Laws are now passed by all the civilised countries providing for such a machinery. ......

26. Therefore, while dismissing all the writ petitions, a direction will issue to the State Government to withdraw G.O.Ms.No.4, Social Welfare and Noon Meal Programme Department, dated 6.1.2011 insofar as it had changed the appointment procedure of noon meal staff in the centres attached to minority schools. The State Government shall take a decision within eight weeks from the date of receipt of a copy of this order and bring employment in consistent with the constitutional scheme covered by G.O.Ms.No.142, Social Welfare and Noon Meal Programme Department, dated 6.7.2010 and in accordance with the judgment in D.Pothumallee's case (cited supra). Otherwise it would amount to contravening the judgment of this court which had become final."

8. In other words, the request of the private managements in having a say in the matter of appointments of the noon meal organizer was negatived by this court as well as by the Division Bench, which remitted the matter for disposal and the Division Bench while approving the order passed by this Court has merely held that the appointment for noon-meal organizer post, which was followed before 6.7.2010 is no longer available after 6.7.2010. It is after the said order was passed by this Court, which was confirmed by the Division Bench and had interpreted G.O, the present impugned order came to be passed, giving exemption to the minority management. So far as the non-minority management, the law is well settled and the G.O.Ms.No.142 alone will be applicable and this Court more than once pointed out that giving the power of appointment to the private managements will only result in arbitrary selection of candidates. It is common knowledge that the educational institutions in Tamil Nadu are run either by caste based organizations or religious organizations. Giving powers to such extra constitutional authorities to recommend names will result in violation of Articles 14 and 16 of the Constitution. Further, an appointment coming under Article 16 will have to be made in a transparent manner. One such method is by public advertisement method calling for applications from public. If power is given to private Schools, it will restrain the public from getting employment opportunities.

9. Only because of this reason, this Court held that private management has no say in the matter of either selecting or appointing any person to the noon meal centre. It must also be noted that even assuming they can have a say in the matter, the scheme do not envisage any power to the Schools to take action against the erring staff under the noon meal scheme. It is completely controlled by a separate set of authority. Further, it also found that the private management, which is covered by the Private School Act, as noted above, can have say only in matters covered by the posts sanctioned in terms of Rule 15(1) of the Rules and not for any other post. Admittedly the posts under the Noon Meal Scheme is not a post coming within the purview of Rule 15(1). The Education Department is totally outside the scope of filling up the post of Noon Meal Organizer. Therefore, the petitioner has no legal right to challenge the impugned G.O.

10. However, Mr.G.Sankaran, learned counsel for the petitioner submitted that if the non-minority schools alone are covered by the G.O, granting exemption to minority school management was not valid. This Court already struck down the provision relating to exempting the minority management provided under the G.O.Ms.No.4, Social Welfare Department dated 6.1.2011 as noted already in the operative portions in paragraphs 25 and 26 of the order dated 3.11.2011.

11. Aware of the order passed by this Court, the learned counsel for the petitioner further submitted that the order has not been obeyed so far by the Department. In the affidavit there is no such allegation found. As and when any appropriate petition comes before this Court complaining about the non-implementation of the judgment, there is time enough for the Court to take note of the same. Even otherwise the Constitution itself makes a distinction between minority and non-minority managements as the minority managements are protected by Article 30(1) of the Constitution. Therefore, in matters of this nature, non-minority managements cannot claim any parity with the minority managements. The distinction or discrimination between them are not hit by Article 14 of the Constitution.

12. Under the circumstances, there is no case made out. Hence, all the writ petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed.