Madras High Court
The Director Of Elementary Education vs Panditha Malvia Aided Middle School on 22 February, 2022
Author: S. Vaidyanathan
Bench: S. Vaidyanathan
W.A. No. 308 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2022
CORAM
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A. No. 308 of 2022
&
C.M.P. No. 2335 of 2022
1. The Director of Elementary Education,
College Road, Chennai – 6.
2. The District Elementary Educational Officer,
Vellore.
3. The Additional Assistant Elementary
Education Officer,
Walajha West – 632 513
Vellore District. ..Appellants
Vs.
Panditha Malvia Aided Middle School,
rep.by its Manager,
V. Arumugam, M.A. B.Ed.,
Anathalai – 631 513
Vellore District. ..Respondent
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https://www.mhc.tn.gov.in/judis
W.A. No. 308 of 2022
Prayer: Writ Appeal as against the order dated 08.03.2019 passed in
W.P. No. 16698 of 2012.
For Appellants :: Mrs.S.Mythreyee Chandru
For Respondent :: Mr.S.N. Ravichandran
JUDGMENT
S. VAIDYANATHAN,J. AND MOHAMMED SHAFFIQ,J.
The present writ appeal has been filed against the order dated 08.03.2019 in W.P. No. 16698 of 2012.
2. The appellants herein were the respondents in the writ petition and the school/respondent herein had filed the writ petition seeking to quash the proceedings dated 06.03.2012 issued by the Additional Assistant Elementary Educational Officer and consequently, direct the District Elementary Education Officer to approve the appointment of V.A. Sathiyamoorthy as B.T. Teacher with effect from 05.03.2012 with all consequential benefits based on proposal.
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3. According to the writ petitioner, it is an aided minority institution. As there arose a vacancy of Secondary Grade Teacher, on account of the demise of one A.S. Nagarajan on 08.03.2011, it was decided to fill up the said vacancy and the School sent a representation through the 3rd appellant to the 2nd appellant on 22.09.2011 seeking to upgrade the post of Secondary Grade Teacher as B.T. Assistant and sought permission on 22.09.2011. The third appellant, by proceedings dated 11.11.2011 recommended for upgradation of Secondary Grade Post as B.T. and forwarded the proposal to the 2nd appellant. In anticipation of permission from the 2nd appellant and due to shortage of staff, list of candidates suitable for the post of B.T. Assistant was sought from the Employment Exchange on 29.12.2011. The list of candidates from the Employment Exchange was furnished on 16.11.2011. Apart from calling for the list of candidates from the Employment Exchange, paper advertisement was also given on 09.01.2012 for filling up the vacancy that arose on account of the demise of Nagarjan on 08.03.2011. The School Committee appointed one V.A. Sathiyamoorthy as B.T. Assistant (English) on 02.03.2012 and he joined service on 05.03.2012. Thereafter, the school forwarded the proposal 3\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 for ratification of appointment of V.A. Sathiyamoorthy by proposal dated 05.03.2012 to the 2nd appellant through the 3rd appellant. However, by letter dated 06.03.2012, the proposal was returned by the 3rd appellant on the following grounds:
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Further, the writ petitioner school was directed to furnish the order issued by the 2nd appellant granting permission to fill up the vacancy. The proposal was re-submitted by the School along with representation dated 12.03.2012 requesting to ratify the filled up vacancy, which was again 4\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 returned by the 3rd appellant on 25.04.2012 stating that the defects pointed out in the proceedings dated 06.03.2012 had not been rectified. Aggrieved by the same, the writ petition was filed by the School challenging the rejection of proposal dated 06.03.2012.
4. After considering the rival submissions and perusing the materials on record, the learned Single Judge had allowed the writ petition and issued a direction to the 2nd appellant herein to approve the appointment of V.A. Sathiyamoorthy, as B.T. Assistant (English) from the date of his appointment on 05.03.2012 and necessary orders were directed to be passed within a period of six weeks from the date of receipt of that order. While allowing the writ petition, the learned Single Judge had taken note of the fact that on account of the demise of A.S. Nagarajan, the school had decided to fill up the said vacancy and permission and approval to upgrade the post of Secondary Grade Teacher as B.T. Assistant had also been sought and that the appointment had been done following due process. The learned Single Judge had also referred to the proceedings of the 1st appellant herein dated 12.03.1992 wherein it is stated that it has been clarified by the Government 5\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 that prior permission is not required at each and every stage for appointment of a teacher whenever vacancy arises due to death, resignation in aided institutions.
5. The contention of the appellants herein are two fold, i.e, firstly, the candidate should have cleared TET for considering his/her appointment to the post of B.T. Assistant and secondly, the post of Secondary Grade Teacher had not been upgraded as B.T. Assistant.
6. On the other hand, according to the learned counsel for respondent/writ petitioner, the ground taken by the appellants in assailing the impugned order that the candidate should have cleared TET, which is mandatory, was not at all raised in the writ petition and it has been raised for the first time in the grounds of appeal. Therefore, according to the learned counsel, the appellants are estopped from raising such a plea at this stage, as the said plea is both factual and legal.
7. Admittedly, the respondent/school had appointed one V.A. 6\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 Sathiyamoorthy as B.T. Assistant (English) in the vacancy that arose due to the demise of one A.S. Nagarajan, who was a Secondary Grade Teacher and had also requested the authorities concerned to ratify the same. The main contention of the appellants before the Writ Court was that neither prior permission was obtained to fill up the vacancy nor upgradation of the post was granted. As rightly putforth by the learned counsel for the respondent, clearance of TET for getting appointment as B.T. Assistant (Engish) is projected as a ground only in the writ appeal. It is no doubt true that clearance of TET is a must, but for the appointment of a teacher as B.T. Assistant (English), the appellants had not insisted for passing of TET even in the counter filed by them in the writ petition. In this context, it is relevant to refer to the judgment of the Hon'ble Apex Court in Mohinder Singh Gill V. Chief Election Commissioner (1977 (1) SCC 404) wherein it was held that the parties cannot improve their case, which has not been a part of the impugned order. In similar circumstances, a Division Bench of this Court in W.A. No. 255 of 2015 ( The Director of Elementary Education, Govt. of Tamil Nadu, DPI Campus, College Road, Nungambakkam, Chennai – 600 006 and 2 others V. G. Raghunath) had considered the issue pertaining 7\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 to the appointment of a teacher without TET qualification as TET was not specified as mandatory in the impugned order and the Court had granted the relief. The relevant paragraphs of the said judgment are extracted hereunder:
"15. Lastly, it is the plea of the learned counsel for the respondent that the respondent/School commenced the appointment process before issuance of G.O.Ms. No. 181 dated 15.11.2011 and therefore, the appointment procedure that was in existence prior to the aforesaid G.O. ought to be followed.
16. It comes to be known that when W.P. No. 41691 of 2006 came up for hearing, the learned Government Advocate for the respondents therein submitted that subsequently, the Government of Tamil Nadu, vide its Letter No. 267 School Education Department dated 19.10.2000, had modified the category and therefore, nothing survived in the writ petition and based on the same, the writ petition was dismissed as infructuous one.
17. As far as the present case is concerned, it is to be borne in mind that the rejection of approval of appointment of R. Saravana Babu was not based on the issue pertaining to 'Teachers Eligibility Test', but it was concerned with G.O.Ms. NO. 197 dated 21.07.2000. In this connection, this Court very relevantly points out the observation made by this Court in W.P. No. 4346 of 2011 on 09.07.2012 (between E.S.T. Bakthavatchalam V. The Director of Elementary Education, Chennai and others), at paragraph 13, whereby and whereunder, which runs as follows:
8\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 "13. Therefore, there appears to have been a confusion with regard to the effective implementation of the Government Order. Moreover, Rule 21 of the General Rules for Tamil Nadu State and Subordinate Services stipulates that if suitable women candidates are not available, male candidates can always be appointed to the posts which are earmarked for women. These aspects have not been examined by the respondents."
8. Insofar as the contention of the appellants that upgradation of the post was not granted is concerned, it is evident from the order of the learned Single Judge that the appellants themselves have admitted in their counter that as per the guidelines issued in G.O.Ms. No. 79 Secondary Educaton (U-1) Department dated 14.06.2002, if the post of Secondary Grade Teacher falls vacant, the said post would automatically be upgraded as B.T. Assistant.
9. Hence, we are inclined to follow the decision rendered by this Court on 23.08.2016 in W.P. No. 255 of 2015 and the order of the learned Single Judge is perfectly in order and does not call for any interference. The writ appeal is accordingly dismissed. No costs. Connected C.M.P. is closed.
10. As the time granted by the learned Single Judge has already expired, we extend the time to comply with the directions issued in 9\10 https://www.mhc.tn.gov.in/judis W.A. No. 308 of 2022 S. VAIDYANATHAN,J.
AND MOHAMMED SHAFFIQ,J.
nv paragraph No.12 of the final order in the writ petition by 3 months from the date of receipt of a copy of this order. As the proposal sent by the school on 28.03.2019 has been forwarded to the 3rd appellant on 05.04.2019 and the same is still pending, the appellants shall take a decision within the time limit stipulated by this Court.
(S.V.N.J.) (M.S.Q.J.)
nv 22.02.2022
To
1. The Director of Elementary Education,
College Road, Chennai – 6.
2. The District Elementary Educational Officer, Vellore.
3. The Additional Assistant Elementary Education Officer, Walajha West – 632 513 Vellore District.
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