A. THOMAS S.H.J. GENERAL MANAGER Vs. DEPUTY INSPECTOR OF SCHOOLS

JUDGEMENT

(1.) WE are concerned with St. Joseph Elementary School, Vikaramasingapuram, which is a denominational institution covered by Article 26 (1) of the Constitution. By an order dated 21st June, 1973, of the Deputy Inspector of Schools, the correspondent of the school was informed that, according to the prescribed rules, secondary grade teachers should not be appointed in higher grade vacancies and that, therefore, the appointments made by the school of secondary grade teachers in higher grade vacancies were not approved. It is the validity of this, that is under attack. The rules referred to by the Deputy Inspector of Schools apparently refer to G. O. Ms. No. 262. Education Department, dated 23rd February, 1972 and the Government Memorandum No 65265 -B. 2/72 -5 Education dated 16th November, 1972 which amended the Government Order. The crux of the Order of the Government is that, since there were about 7679 secondary grade teachers working in the higher grade posts as on 1st April, 1971, who have to be upgraded in the future years, it was necessary to direct that secondary grade teachers should not be appointed in higher grade posts in Elementary and Higher Elementary Schools under any of the managements with effect from the date of the issue of the order. In the course of the order of the Government it was mentioned that the number of of secondary grade teachers working in the higher grade posts was increasing and the scheme approved by the Government in G. O. Ms. No. 1355, Education dated 3rd August 1967 had to be continued indefinitely and that the existing higher grade teachers who were awaiting employment would not get employment in future. Stopping there for a moment, we would like to observe that this order by itself appears to be rather unreasonable, inasmuch as nothing was stated in the Government order as to how many higher grade teachers were awaiting employment and that in view of such d large number it was unnecessary to make a direction in the Government Order. As a matter of fact, the memorandum of the Government, which we have already referred to, stated that, in the working, take school management's were finding it difficult to get sufficient number of higher grade teachers in spite of the fact that they had exhausted resort to the employment exchange, Noticing this fact, the Government in the said memorandum said that if no higher grade teachers were available for appointment, a certificate to that effect should be obtained from the employment exchange and the same should be sent to the District Educational Officer concerned with a request for permission to appoint secondary grade teachers in higher grade vacancies and that prior permission of the District Educational Officer concerned was absolutely necessary for the filling up of the higher grade vacancies by the secondary grade teachers.

(2.) IT seems to us that, having regard to the protection afforded by the Constitution to denominational institutions like the one with which we are concerned, whose rights under the Constitution this Court had occasion to point out in Director of School Education, Tamil Nadu Government v. G. Arogiasamy (1971) 1 Mad LJ 325 : (AIR 1971 Mad 440 : 84 Mad LW 195) it will be an unreasonable interference to tell the institution before us that it could not employ a more highly qualified teacher in the interests of better standards of education in its schools because it would not assist the scheme of the Government to find employment for higher grade teachers.

(3.) THE learned Government Pleader strenuously contends that, though the petitioner -institution is a protected institution, inasmuch as it receives aid from the Government, and as all the teachers whether they are in protected or unprotected institutions are paid by the Government through the aid, the Government have a right, in order to do social justice inasmuch as it has to provide employment for the higher grade teacher in higher grade vacancies. We are unable to accept this contention so far it relates to protected institutions. The Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : (AIR 1974 SC 1389) as well as earlier decisions go a long way to recognise the freedom of management on the part of denominational institutions and the management includes also appointment of teachers of their choice. It is not necessary to say more than that in this case. Here, it happens to be a case of employment of more qualified teachers in the interests of higher standards of education and the Education Department cannot insist that that should not be done by the institution. This has nothing to do with the aid given. The aid given by the Government does not clothe the Government with any right of the type they have claimed to interfere with the freedom of management of the institution to employ teachers of their choice, who have a higher qualification than that prescribed by the Department. On that view, the petition is allowed. No costs. Petition allowed.