Madras High Court
The Correspondent vs The Inspector Of Matriculation Schools on 11 October, 2006
Bench: P.K.Misra, G.Rajasuria
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 11/10/2006 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE G.RAJASURIA W.A.No. 214 of 2006 and M.P.No.1 of 2006 The Correspondent, Chandler Matriculation Higher Secondary School, Mangalapuram Madurai - 625 016. ... Appellants Vs. 1.The Inspector of Matriculation Schools, CEO Office Campus Thallakulam Madurai - 625 002. 2.Miriam Santhosa Sahayani, ... Respondents Appeal is filed under Clause 15 of the Letters Patent, against the Order dated 19.06.2006 passed by the learned Single Judge made in W.P.No.601 of 2006 on the file of this Court. !For Appellant ... Mr.G.R.Swaminathan ^For Respondent-1 ... Mr.R.Janakiramalu Spl.Government Pleader For Respondent-2 ... Mr.Mathew Moses :JUDGMENT
(Judgment of the Court was delivered by G.RAJA SURIA,J) Heard the learned counsel appearing for the Appellant, and the learned counsel appearing for the respondents.
2.This Writ Appeal is directed against the order dated 19.06.2006 passed by the learned single Judge in W.P.No.601 of 2006 which was filed by the appellant herein for issuance of writ of certiorari or any other writ or any other direction in the nature of writ to quash the impugned order bearing No.Na.Ka.No.1670/Aa2/2005, dated 19.12.2005 issued by the first respondent, the Inspector of Matriculation Schools.
3.Succinctly and tersely the case of the appellant herein could be summarised thus:-
The petitioner in the writ petition namely Miriam Santhosa Sahayani(herein after referred to as 'petitioner') was appointed as Computer Mistress in the petitioner school in the year 1994. She was made permanent staff during August 1998. She was also assigned the task of handling LKG classes. There was change in Diocese Management and the present Management of the School came to know that certain irregularities were made in giving appointments. In fact, all the staff including the second respondent, were called upon to furnish their credentials. However, the second respondent took it amiss and resorted to legal action. She made representation to the District Collector, Madurai, who forwarded it to the first respondent. She also filed a writ petition in W.P.No.10161 of 2005 and it was dismissed by the High Court on 15.11.2005, giving liberty to her to approach the first respondent, who was directed to consider and dispose of her representation as per law.
4.The High Court order dated 15.11.2005 was passed without notice to the School Authority, the petitioner herein. The first respondent, the Inspector of Matriculation Schools, conducted an enquiry on 19.12.2005. During enquiry, the representative of the School Authority also participated. The Inspector of Matriculation Schools, passed the impugned order dated 19.12.2005 to the effect that since the second respondent herein had worked for 11 years in the school, she had to be given 5 years time to qualify herself and that the Management should give her the benefit which she had been enjoying. The petitioners institution is a minority institution and hence it is in full domination of administration. It is not in receipt of any aid from the State and in such case it is not open for the second respondent herein to direct the School to give her the same benefit which it was giving. If the School Administration finds that the second respondent herein is not a qualified person to hold the said post, it is always open to the petitioner school to take such steps as it may deem fit and proper.
5.The first respondent was not competent to give any direction that the second respondent herein should be given posting appropriate to the qualification presently held by her. The Writ Petition was filed on the following grounds.
1. The communication issued by the first respondent was illegal and against the Code of Regulation for Matriculation School, Tamil Nadu.
2. The School being the minority institution is entitled to the protection under Article 30 of the Indian Constitution.
3. The first respondent acted without any power on his part.
4. The first respondent fails to consider the representation given by the petitioner.
6.Per contra, the first respondent filed the counter inter alia with the averments which run thus;
In pursuance of the order in WP.No.10161 of 2005, the first respondent conducted the enquiry on 19.12.2005 at Chandler Matriculation Hr.Sec.School, Madurai.
7. Chapter-VI of the Code of Regulation for Matriculation School, Tamil Nadu and proceedings in R.C.No.6113-1 E8/2004 envisage only qualified staff to be appointed in Matriculation Higher Secondary Schools. The appellate authority, the first respondent herein issued only such a direction and so contending she prayed for the dismissal of the writ appeal.
8.The second respondent would file the counter inter alia with the averments which runs thus;
The second respondent herein was appointed as LKG Teacher in the year 1994 and she also worked as part time Computer Teacher from 1994 to 1998. She was made a permanent staff of the School. Her present designation is Assistant Mistress. Till 20.06.2005, there was no mis-understanding. Thereafter, the School Management cavilled at her. She was not allowed to sign the attendance register from 12.08.2005, but she was allowed to sign it on 18.08.2005. Once again she was prevented from signing the attendance on 19.08.2005. She was prevented from entering the School Campus, which necessitated her to issue a legal notice. From the month of August 2005 her salary has been withheld. As per Matriculation Codes ESCC with Nursery Training Certificate is sufficient qualification for being appointed as Teacher for LKG.
9.She possesses SSLC qualification along with certificate in Nursery Training issued by the recognized Teacher Training Institute. Her qualification is more than the one required for LKG Teacher. The School also disobeyed the order of the learned Single Judge of this Court and prevented her from working in the Institution suppressing the real facts a separate writ petition was filed by the School, instead of preferring appeal as against the earlier order of the Court in the Writ Petition. Accordingly, she prayed for the dismissal of the Writ Petition.
10.The writ petition in W.P.No.601/2006 filed by the appellant herein was dismissed and as against which the Correspondence filed this Writ Appeal on the following Grounds among other.
(i) The learned Single Judge was wrong in dismissing the writ petition.
(ii) The Learned single Judge failed to hold that there should not be any interference in the internal administration of the School which being a minority and unaided institution.
iii) The Learned single Judge himself misconstrued the scope of the direction given by this Court in W.P.No.10161 of 2005.
iv) The earlier order passed in the writ petition in W.P.No.10161 of 2005 was without giving notice to the School. The Regulation Governing Administration of Matriculation School did not provide for any intervention by the first respondent herein.
v) The first respondent gave a direction mechanically, oblivious of Articles 30 of the Constitution.
vi) The School Management, barely required only the documents relating to the Academic qualifications of the second respondent herein and to preempt the appellant, the second respondent resorted to litigatious path.
11. Even as per the second respondent's version, she completed only the 10th standard and that was why a direction given by the School Management for granting 5 years' time to qualify herself.
12.The second respondent passed only 10th standard and the validity of such a certificates remains to be tested. The School authority is competent to test it. The first respondent cannot compel the appellant herein to resort to any particular Course of action.
13.The second respondent herein was given employment even though she was having no requisite qualification and in such a case the question arises whether five years time to qualify herself against the will of the Management should be given. Accordingly, he prayed for setting aside the order of the learned Single Judge.
14.Based on the aforesaid pleas and the arguments advanced, on either side, the following points arise for consideration.
i) Whether there is clear evidence available on record relating to the actual qualifications of the second respondent, namely, Miriam Santhosa Sahayani?
ii) Whether she is entitled to 5 years period for acquiring qualification, if there is deficiency in her qualification?
iii)Whether the first respondent is the competent authority to issue any direction as found in the impugned order?
Points 1 & 2: These points are taken together for discussion as they are interlinked with each other.
15) The above narration of facts, would at once make the point clear that there has been prolonged litigation touching upon the qualification of the second respondent herein and the right of the petitioner to call for her credentials. Consequently, the right of the first respondent to give necessary direction, is challenged. The learned counsel for the first respondent advanced the argument to the effect that there is no backing of the law for the first respondent to act as an authority and issue any direction much less the directions as found in the impugned order as against the school authority in this matter.
16.The perusal of the report of the first respondent, is not clear relating to the actual qualification of the second respondent. In fact, the first respondent acted, so far this case is concerned, as ordered in W.P.No.10161 of 2006 by the High Court, on 19.06.2006. However, without notice to the School Authority such order was passed by the High Court. The first respondent could have very well given a categorical finding regarding the qualification of the second respondent, but she did not do so. The second respondent in her counter affidavit would state that she passed SSLC in addition to possessing the certificate issued by the competent authority relating to training in nursery School Teaching, (Montessori Training) required for LKG teachers. It is also her contention that she got diploma in computer science.
17.We are at a loss to understand as to what prevented the second respondent in producing those certificates before the School authority at the initial stage itself so as to enable them to verify the particulars. The Order of the first respondent is not at all clear relating to the qualification of the second respondent. Even though the second respondent had put in 11 years of service yet there is no embargo for the petitioner school authority to demand the credentials of the second respondent for verification. It is an admitted fact that the Regulations relating to Matriculation School contemplate minimum requisite qualifications for such teaching post and in the event the second respondent, found to be not possessing such qualification she should be given 5 years time to get herself qualified.
18.The maxim Ubi jus ibi idem remedium could be pressed into the service in favour of both sides and the rights of one cannot be sacrificed in favour of other. Accordingly, this point is answered.
19.The grievance of the School Authority is that still they were not given opportunity to verify her certificates and ascertain the genuineness of them. There is force in the contention of the appellant. It is argued on behalf of the second respondent that the certificates were all given to the School Authority, but they were suppressing these facts. Be that as it may, there is no harm in directing the second respondent to furnish her certificates to the School authority for verification as required by them and in the event of the School Authority finding any infirmity they shall give opportunity to the second respondent adhering to the principles of natural justice as envisaged in the maxim audi alteram partem to explain herself and thereafter, if the institution finds that she has no proper qualification, she shall be allowed to acquire the requisite qualification within a period of 5 years as it obvious that for more than a decade she worked in the institution and she shall not be deprived of any of the benefits, which she had been enjoying before the arisal of the dispute. Accordingly the points 1 & 2 are decided.
Point No.3:-
20. The learned counsel for the second respondent relied on the decision of the High court in Tamil Nadu Matriculation and CBSSE School Teachers Association v. State of Tamil Nadu and others (2002 Writ.L.R. 688) to the effect that the first respondent is the competent authority, to wit, the appellate authority also in this matter.
21.The perusal of the cited decision supra would show that it was the writ petition which was filed challenging the Code of Regulation for Matriculation Schools and the Honourable High Court upheld the Regulation.
22.The learned counsel appearing for the second respondent relied on the following excerpt from it:-
".... for all other categories of staff including non teaching staff the Inspector is the appellate authority. Further, an appeal shall lie with the Government against the orders passed by the Director and an appeal shall lie with the Director against the order passed by the Inspector. In such circumstances, I am unable to accept the contentions raised by the learned counsel for the petitioner."
23.The learned single Judge after elaborate analysis of the Code of Regulation of Matriculation Schools, upheld the constitutional validity of the same. The Rule 23(A) of Code of Regulation for Matriculation Schools, contemplates that the Inspector of Matriculation is the appellate authority for the staff such as the second respondent herein.
24. In view of the fact that admittedly, the second respondent herein was not allowed to sign the attendance register by the appellant, be that even for one day, it amounted to arbitrary termination warranting interference by the appellate authority. In such a case, the learned single Judge correctly gave the direction to the Inspector of Matriculation School, to enquire into the matter and pass suitable orders.
25.The Rule 23(A) of the Code of Regulation for Matriculation Schools contemplates that against the order of the appellate authority, an appeal would lie to the Director of Education. But the appellant herein has not chosen to prefer any appeal as contemplated under Rule 23(A) of the Code of Regulation for Matriculation Schools, but he has chosen to file the fresh writ petition in W.P.No.601 of 2006. The appellant could have very well invoked the above said provision and approached the Director of Education seeking redressal.
26.The next phase of analysis is relating to the fact as to whether the appellate authority would be the competent person to entertain any grievance of the second respondent relating to any direction that may be given by the school authority, under Rule 17 of the said Code. However, it is stated that the Inspector is the authority relating to the assessment of the qualification. However, considering the spirit of Code of Regulation for Metric School in Tamil Nadu, the Director of School Education is to be taken as competent authority and more specifically, Rule 17 would contemplate that the director is the authority who has the power to exempt certain staff, who have put in 15 years of service from acquiring qualification in commensurate with Code of Regulation for Metric School in Tamil Nadu. The Annexure VI of the said Regulation would read thus;-
"The Director shall be the authority competent to evaluate and accept other qualifications for purpose of appointment in schools."
27. It is therefore clear that only the director has got the power to assess whether qualification of a staff member is actually in commensurate with the said regulation or not. If any disciplinary action is taken by the school authority and any punishment is imposed, in such an event only, the Inspector would be the appellate authority. In the event of the second respondent failing to furnish the credentials, the School Authority has the right to initiate the disciplinary proceedings as against the second respondent and pass order and as against such order the appeal would lie under Section 23(A) of the Code as stated supra.
28.But on the other hand, if the School authority simply gives direction after verifying the credentials of the staff to acquire requisite qualification within a period of five years, no appeal apparently would lie to the Inspector; in as much as the direction given by the School Authority would not amount to any punishment. In such a case, the only remedy available for the aggrieved person is to approach the competent authority, who is the Director of Education.
29. The above analysis, therefore, reveals that the single Judge was right in directing the Inspector of Matriculation Schools to consider the matter. However, the Inspector of Matriculation Schools did not give any finding on the qualification of the second respondent. In the written submission furnished by the second respondent also there is periphrasis and yet there is implied admission to the effect that the Inspector of Matriculation Schools, did not give any specific direction in his order. There is also no clarity what was her actual designation at the time of arisal of dispute. One fact is clear that she was LKG teacher and also taking computer classes for senior students. In Annexure-VI of the Code, the qualification relating to computer teacher is not found prescribed. Eventhough the parties were litigating for a long time, yet precisely, the parties are not setting out in unison the name of the post or the qualification for such post. In the written arguments,the second respondent would state that she joined the Institution as LKG teacher and got qualification in computer and had been taking computer classes for the last 11 years, whereas, the school authority did not state so. Hence the valuable right of the school authority to verify the Educational qualifications of the second respondent cannot be prevented by the Court by passing any order. Accordingly, this point is decided. Hence, in these circumstances, the Writ Appeal is partly allowed with the following directions:
i) The appellant has got the right to demand the second respondent to furnish all her educational qualifications and analyse the same, after giving due opportunity to the second respondent to explain herself regarding her qualifications. After such due analysis, if the School Authority finds that there is dearth of qualification, the school authority can direct the second respondent to acquire the qualifications within 5 years. Rule 17 of the Code would Contemplate five years period from 01.07.1978, but such five year period elapsed long ago. However, considering the facts and circumstances of the case and the fact that the School Authority has got the right to verify the educational qualification of the second respondent, the five year period contemplated under Rule 17 of the said Code should apply mutatis mutandis from the date of direction if any that would be given by the School authority to the second respondent for acquiring the requisite qualification. If the Second respondent is aggrieved by such order, she is at liberty to approach the Director of Matriculation Schools for getting redressal if any.
30.Hence, in this view of the matter the appellant shall continue to pay the same scale of pay and extend the same benefits as prevailed before the arisal of the dispute. There is no order as to costs. Consequently, connected Miscellaneous Petition is closed. The cost of Rs.5000/- awarded by the learned single Judge is set aside.
Mpk To The Inspector of Matriculation Schools, CEO Office Campus Thallakulam Madurai - 625 002.