The Madurai bench of the Madras High Court(MHC) has held that government-aided minority schools can fill up vacancies only after government approval. Judges observed that even though they are subsidised by the government they have full autonomy in running the institutions. “Dioceses maintain registers akin to employment exchanges”, they said while hearing a case concerning a government-paid employee of a Christian school.
In a petition filed by one Jesu Prabha, an employee of the St.Joseph’s Girls Higher Secondary School, Sathankulam, Thoothukudi, the court made the above observations. Judges made further observations about the disparity in the field of education noting that “The minority schools have so far been successful in exempting themselves from the purview of the Right of Children to Free and Compulsory Education Act 2009.”
In a scathing note, judges G.R. Swaminathan and R. Tharani called to attention the exemptions minorities get in running schools with absolute freedom. “Their teachers need not be TET-qualified. The requirement that appointments have to be made as per communal roster to achieve social justice does not apply to minority institutions. Though grant-in-aid comes out of the public exchequer, appointments are often made as per the seniority list maintained by the respective dioceses. Petitions have been filed by aggrieved individuals contending that their local church has breached the seniority principle”, they observed.
The bench further noted, “It is a fact that the dioceses have been maintaining registers akin to the district employment exchanges. In other words, the management need not invite eligible and meritorious candidates from the open market. Even a cursory survey would reveal that these appointees are invariably from the same religion or even denomination. Of course, Article 30 of the Constitution of India will be projected as a shield”.
TN government had appealed against the lower court’s ruling that it should pay the petitioner the pending arrears. Jesu Prabha was appointed as a BT Assistant in 2014 following the retirement of a second-grade teacher at St.Joseph’s Girls Higher Secondary School. The school sent her profile for the approval of the school education department with an undertaking that it will not demand salary until the conversion of the post.
Later the school education department approved the appointment and paid her salary starting in 2017. Jesu Prabha filed a petition demanding that her appointment should be recognised from 2014. The court ruled that the department should pay salaries from 2014. While hearing the appeal petition, the Madurai bench of the MHC observed that the government also delayed the approval for long periods and directed the concerned department to approve the appointments within 10 weeks.
Many state-aided schools, the majority of which are run by the church, have surplus teachers. As per the rules, surplus teachers have to be transferred to other schools of the same group of institutions with government approval. If not, the surplus post has to be surrendered which would deprive the school of a state-paid teacher as no new posts can be created for classes started after 1989. In regard to this issue, MHC observed “managements make appointments if a vacancy arises in a sanctioned post in one school, even if they have surplus teachers in the other schools”.
As the matter is pending in the Supreme Court, the bench refrained from commenting further on the issue. It is to be noted that Christian clergy are appointed in teaching positions in most of the church-run schools. They keep only a nominal amount for their personal expenditure and give the remaining to their respective churches. As the churches are exempt from income tax the state’s funds go to the church which can invest more in its institutions.
Thus minority institutions, especially Christian-run ones, not only get huge advantages through exemptions from rules but monetary help as well through government salaries and schemes like IDMI effectively making the state a part of their conversion activities. Article 30 gives them immunity obstacles in establishing and running an institution.
To establish a minority institution, the minority commission (with all its members from minority communities) has to give a No Objection Certificate. But the institution doesn’t have to wait for it whether or not the commission doesn’t provide it in the stipulated time of 90 days. Even though they run them using government funds and their staff get paid by the government, they have full autonomy in appointing staff, admission process and other administrative works. Considering this aspect, it is surprising that despite knowing the unequal playing field in education, the judiciary is keeping mum on RTE.
