Minority Managements are escaping from the department by telling that they are minorities without knowing the fact that their powers are very limited. The education department also bows before the managements without knowing the rules. Ave Maria gives the following stuff. They are requested to read and know the facts about administration. Not only the managements but also the teachers can learn something for their knowledge.
Before the TN Act of 1974 was enacted, all the private schools were being governed by the Madras Educational Rules in force since 1893. The MER was not statutory and not amenable to Writ Jurisdiction. One of the conditions for giving recognition to Private School was that the management had to enter into an agreement with the teachers in the format given in Appendix 28 under Rule 12(2) (ii) (J) which contained under clause 7 (1) (ii) “the school authority shall not , except, with the previous permission of the District Educational Officer, terminate the services of the said teacher for incompetence if he has put in five years of efficient service after being confirmed in his appointment” and under clause 10 “ that in the event of either party to this agreement failing to observe the terms thereof the aggrieved party shall have a right to represent to the Director of School Education/Chief Educational Officer/Inspectress of Girls Schools, who shall pass suitable orders in the matter. Appeal shall however, lie to the government in respect of orders passed by the Director of School Education and to the Director of School Education in respect of orders passed by the Chief Educational Officer or the Inspectress of Girls Schools as the case may be”.
“Provided that an appeal under the provision of clause 10 shall be preferred within one month from the date of receipt of the orders to the appellate authority and any appeal preferred after the expiry of the above period will be liable for summary rejection”.
Note:- Pending the decision of the appellate authority on any appeal either by a teacher or headmaster or by a management the management shall not relieve the teacher or headmaster nor shall the teacher or headmaster stop away from the school (GO Ms No. 2331 Education dated 13th September 1962). It is pertinent to note this was the position when the government used to give only two thirds of the staff grant.
In 1964 education upto SSLC (11 year course) was made free and the private schools were made non-fee levying schools. Before that the government gave two thirds teaching grant and the schools were allowed to collect fees from the students at government rate. After 1964 the government began to give cent per cent teaching grant to schools. Though MER was only non-statutory and the relation between management and teacher was only that of master and servant, the Honourable Supreme Court has held in Kumar Regina Vs Saint Alosious Higher Elementary School (1972 MLJ 1 Page 41) that “ as the government has the power to admit schools to recognition and grant-in-aid, it can de hors the act, lay down conditions under which it would grant recognition and grant” and a breach of non compliance of such conditions would entail either the denial or withdrawal of recognition and aid. (S.C Order 1972 MLJ 1 annexed as Appendix II).
The TN Act 29 of 1974 was enacted with good intention to give statutory service conditions to teachers. A number of Writ Petitions were filed in the Honourable High Court of Madras. On 17.12.1975 the first bench of High Court gave the judgment and order in the Act, making among others Sec (11) (1) (b) dealing with recognition, Sec 14 regarding the payment of grant and Sec 22 and 23 regarding the service security to teachers inapplicable to minority schools.
The above order of the High Court has created some practical problems in the administration of minority schools. With a view to get them, the GO No. 2080 dated 14.09.1977 was issued regarding “TN Minority Schools (Recognition and Payment of grant) Rules 1977.
The GO 2080 dated 14.09.1977 does not contain any rules regarding the job security to teachers terminated from minority schools. Perhaps the government might have been of the opinion that because Sec 28 of the Act having been made applicable to minority schools with a proviso entitling the teachers to the more favourable benefits in the MER agreement they might have thought it not necessary to incorporate rules for job security for teachers in the GO No. 2080 dated 14.09.1977. Hence in the Meston Training College Association, Madras Vs State Government and others in WP 3152/ 1975 decided on 14.06.1979, the then learned Advocate General contended that Sec 28 of the TN 29 of 1974 having been held to apply to minority institutions and that the existing agreement entered into between the managements and teachers should be taken to be operative as between the parties even though some of the provisions of the Act have been held not applicable to them and Sec 28 keeping alive the terms of the agreement, can still be enforced notwithstanding the judgment of the High Court Bench holding Sec 23 to be inapplicable. But the High Court did not accept the contention of the learned advocate general and made clause 10 MER Agreement inoperative in the face of Article 30 of the constitution of India. Except clause 10 no other classes of the agreement have been made inoperative. Hence clause 7 (1) (ii) of the MER agreement must be deemed to be operative and the education department has the power to enforce this clause 7 (1) (ii). It is to be noted here that agreement has to be entered between the employee and the management.
The state, based on assurance given in legislative council in No. 252 regarding provision for job security to teachers terminated from minority schools, issued GO Ms. No. 2529 dated 18.11.1981 ordering that “if any of the minority educational agency acts in contravention of any rules in force, the Director of school education can stop grant of aid though they may continue to have recognition”. This GO seems to have been not enforced by the education department even at any time during the life time of Madras Legislative council where the assurance was given but it remained ineffective and only empty formality and exercise in futility. Though clause 7 (1) (ii) of the MER agreement contains more favourable benefits to the minority school teachers according to proviso given under Sec 28 of Act, the education department does not seem to have acted upon this GO but would readily entertain appeals from the terminated teachers. The education department does not seem to have applied their mind to clause 7 (1) (ii) of the MER agreement which is still applicable to minority schools (GO Ms. No. 2529 dated 18.11.1981 is shown as Annexure IV).
The Honourable High Court in its Order dated 17.12.1975 did not make section 19 of the Act inapplicable to minority schools and according to section 19 the government have made rules applicable to both minority and non minority schools regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and the age of retirement and rights as respect disciplinary matters) of the teachers and other employees in any private school. But it is painful to submit that the education department has failed to enforce the rights as respects disciplinary matters of minority school teachers thus infringing the teachers’ right of equality under article 14 of the constitution which the Hon’ble Supreme Court has held as one of the basic structures of the constitution of India.
That the Gujarat High Court in Chaganbhai P. Oza Vs Ahmedabad Jesuits School Society (1978) (19) G.L.R 347 has observed “the teachers are entrusted with extremely delicate and vital functions by the society. They are the architects engaged in building a new generation… Therefore nothing surprising in restrictions being enforced on the management in the matter of terminating the services of teachers”. In All Saints School case in from Andhrapradesh (AIR 1980 S.C 1042), the Honourable Chief Justice Mr. Chandrachude has observed “educational instruction has to be imparted through the instrumentality of the teachers and unless they are given constant assurance of justice, security and fair play, it will be impossible for them to give up their best which alone can enable the institution to attain the ideal of educational excellence” and moreover His Lordship observed “I do not think that in the name of discipline and in the purported exercise of the fundamental rights of administration and management, any educational institution can be given the right to ‘hire and fire’ its teachers” In Frank Antony Public Schools case (AIR 1987 S.C 311) in Delhi Educational Act 1973 under Section 82 aided minority school teachers shall not be dismissed except with the prior approval of the Director.
The Honourable Supreme Court in T.M.A. PAI Foundation Case (2002) 8 SCC 481 has held in para 135 on page 578 that “the constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the constitution are subject to atleast other provisions of the said part” and in para 138 on page 579 that “the essence of Article 30 (1) is to ensure equal treatment between majority and minority institution. No one type or category of institutions should be favoured or disfavoured or for that matter receive more favourable treatment than another. Laws of the land including rules and regulations, must apply equally to the majority as well as to the minority institutions.”
Since most of the minority managements do not know the above facts, troubles are given incessantly to the teachers. They do not know the following simple fact. Even the institutions being run without getting grant from government have to follow certain rules strictly. As such, how can a minority management can go scot-free, when it gets cent per cent grant from the public fund. On one hand they say that they are minorities. On the other hand they follow the “hire and fire” rules in the matter of employees. In Tamil we say Koolukkum aasai meesaikkum aasai. Public comments that the worst minority management in India is “The Tuticorin Diocesan Association”. Ave Maria hopes that the administrators will learn something from this article.
a) Even before the TN Act 29 of 1974 came into force from 01.12.1974 all teachers were having service security under MER Agreement for uniformity and certainty without any discrimination.
b) Cluase 7 (1) (ii) of the MER Agreement is still applicable because of the proviso given under Section 28 of the Act which is applicable even to minority schools.
c) The Honourable Supreme Court in its judgment in Kumari Regina Vs. St. Alosius Higher Elementary School (1972 MLJ I) has categorically held that “the rules that govern the terms on which the government would grant and recognition and aid and government can enforce these rules upon the management”
d) The non-compliance of the vital rule 7 (1) (ii) of the MER Agreement is unsustainable.