Madras High Court
C.Jeevarani vs The District Elementary Educational ... on 6 June, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.06.2018
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD) Nos.5211 & 5212 of 2018
C.Jeevarani ... Petitioner in W.P.(MD)No.5211 of 2018
D.Geetha Felcitta ... Petitioner in W.P.(MD)No.5212 of 2018
-vs-
1.The District Elementary Educational Officer,
Tirunelveli,
Tirunelveli District. ... 1st Respondent in both petitions
2.The Additional Assistant Elementary Educational Officer,
Radhapuram,
Tirunelveli District. ... 2nd Respondent in W.P.(MD)No.5211 of 2018
2.The Additional Assistant Elementary Educational Officer,
Valliyoor,
Tirunelveli District. ... 2nd Respondent in W.P.(MD)No.5212 of 2018
3.The Correspondent,
T.D.T.A. Primary Schools,
Anaigudi,
Tirunelveli District. ... 3rd Respondent in W.P.(MD)No.5211 of 2018
3.The Correspondent,
T.D.T.A. Primary Schools,
Thankaiyam, Valliyoor Union,
Tirunelveli District. ... 3rd Respondent in W.P.(MD)No.5212 of 2018
Common Prayer: Writ Petitions filed under Article 226 of the Constitution of
India for issuance of a WRIT OF MANDAMUS directing the 1st and 2nd
respondents to sanction yearly increments to the petitioners from the year
2011 onwards with all consequential benefits.
http://www.judis.nic.in
2
For Petitioner : Mr.V.Panner Selvam
For Respondents : Mr.K.Saravanan,
Government Advocate for R.1 & R.2
No appearance for R.3
(In both petitions)
*****
COMMON ORDER
The prayer sought for in these writ petitions is for a Writ of Mandamus directing the first and second respondents to sanction yearly increments to the petitioners from the year 2011 with all consequential benefits.
2. Heard Mr.V.Panner Selvam, learned Counsel appearing for the petitioner in both writ petitions and Mr.K.Saravanan, learned Government Advocate appearing for respondents 1 & 2 in both writ petitions. Insofar as the third respondent in both writ petitions is concerned, though notice was served and name was also printed in the cause list, there is no representation on their behalf.
3. Both the petitioners were appointed as Secondary Grade Teachers at the respective third respondent School under the same Management. The petitioner in W.P.(MD)No.5211 of 2018 was appointed on 24.09.2010 as Secondary Grade Teacher at the third respondent School and http://www.judis.nic.in 3 her appointment proposal was rejected by the official respondents on 07.08.2013. Challenging the same, writ petition was filed by the petitioner in W.P.(MD)No.4251 of 2015, where an order was passed on 17.08.2016, directing the official respondents to release the salary of the petitioner. Pursuant to the said order passed by this Court, salary was released to the petitioner by proceedings dated 15.07.2017.
4. Like that, insofar as the petitioner in W.P.(MD)No.5212 of 2018 is concerned, she was appointed as Secondary Grade Teacher at the third respondent School in that writ petition on 08.10.2010 and her appointment was rejected by the official respondents on 23.05.2014. Challenging the same, the petitioner has filed a writ petition in W.P.(MD)No.4262 of 2015, wherein, this Court by order dated 17.08.2016, directed the official respondents to release the salary of the petitioner. Pursuant to the said order of this Court, salary was released to the petitioner by proceedings dated 12.06.2017.
5. However, the fact remains that, so far the proposals sent by the respective third respondent School to the official respondents for approval of the appointment of the petitioners have not been approved. However, for the present, the grievance of the petitioners appears to be is that though http://www.judis.nic.in 4 salary has been sanctioned to them pursuant to the orders of this Court as referred to above, they have not been sanctioned the annual increment, for which, they are entitled to as that of other teachers. Therefore, in order to get the increment, the petitioners have approached this Court by filing the present writ petitions.
6. The fact remains that in both cases, though the proposals of appointment of the petitioners were rejected by the official respondents, thereafter, even though the said proposals had been submitted once again, after rectifying the minor deficiencies insofar as W.P.(MD)No.5212 of 2018 is concerned, no approval so far has been given to the said petitioner stating that the petitioner did not qualify the required Teachers Eligibility Test and in respect of W.P.(MD)No.5211 of 2018, the only reason given by the official respondents for rejecting the proposal is that the petitioner did not qualify the Teachers Eligibility Test (hereinafter referred to as “TET”).
7. In this regard, the learned Counsel appearing for the petitioners would submit that the requirement of TET qualification is no more a valid requirement as the third respondent institution is a minority institution. Therefore, the insistment of TET qualification pursuant to the Right to Education Act and the Government Order issued in this regard shall not be a http://www.judis.nic.in 5 valid requirement and in this regard, a number of judgments had been issued by this Court.
8. Therefore, the learned Counsel for the petitioners would submit that in both cases, the appointment proposals sent by the respective third respondent School to the official respondents shall be considered first and approval shall be given as no further impediment is there for the official respondents to approve the appointment of the respective petitioners.
9. Per contra, Mr.K.Saravanan, learned Government Advocate appearing for the official respondents would submit that, in both cases, the respective proposals sent by the School to approve the appointment of the respective petitioners were rejected. Of course, one of the reasons cited was that the petitioners should have the qualification of TET. At least, in the second case, ie., W.P.(MD)No.5212 of 2018, other reasons also were cited. When the petitioners moved the first round of litigations in W.P.(MD)Nos. 4251 & 4262 of 2015, challenging the said rejection orders, it was confined only to the release of salary to the petitioners alone and this Court by common order dated 17.08.2016, has given the following directions:
“4. In view of the above, all the writ petitions stand disposed of, with a direction to the official respondents to grant salary in the http://www.judis.nic.in 6 course of their employment within a period of two weeks from the date of receipt of a copy of this order and no steps to remove them from service shall be taken. However, it is made clear that these orders are subject to the final outcome of the case pending before the Supreme Court in Aswini Thanappan Vs. Director of Education and another – (2014) 8 SCC 272. It is further made clear that the petitioners shall not claim any equity on account of this order, without prejudice to the rights and contentions of the parties. No costs. Consequently, the connected miscellaneous petitions are closed.”
10. Only in response to the said directions issued by this Court, salary to both the petitioners had been released by proceedings dated 15.07.2017 and 12.06.2017 respectively. Both the petitioners are getting the salary and now they have come forward to seek further benefit of increment of salary. In this regard, the learned Government Advocate appearing for the official respondents would submit that unless the approval proposals are approved, the petitioners would normally not be entitled even to get salary. However, salary was released to the petitioners only to comply with the directions of this Court as referred to above. In the said direction itself, the learned Judge has stated that the said direction would be subject to the outcome of the issue pending before the Hon'ble Supreme Court in the case of Aswini Thanappan Vs. Director of Education and another – (2014) 8 SCC 272. When that being the position, seeking further benefit like http://www.judis.nic.in 7 increment, at this juncture, may not be justifiable and therefore, the writ petitions are liable to be rejected.
11. I have heard the submissions made on both sides and have perused the documents placed on record carefully.
12. Certain facts are not in controversy, such as the third respondent School in both cases are minority institutions. The posts where these petitioners were appointed are sanctioned posts and necessary proposals had been sent by the third respondent School in both cases to the official respondents for approval.
13. After having considered such proposals, both proposals were rejected by the official respondents for one reason or other. As far as the reason of requirement of TET qualification is concerned, this Court is of the view that the said issue, at least for the time being, has been settled by this Court in a number of decisions.
14. In this regard, I had an occasion to consider the similar issue as to whether the requirement of TET is necessary or not, for a Teacher appointed and working in a minority School in W.P.(MD)No.13395 of 2013 in http://www.judis.nic.in 8 the matter of C.Sangeetha v. The Secretary to Government, School Education Department, Chennai and others. By order dated 05.12.2016, I have passed the following order:
“13. The uncontroverted factors, in this writ petition, are that the petitioner was appointed only in a sanctioned post of Tamil Pandit on 04.10.2010. The petitioner had subsequently completed the TET and qualified successfully on 19.08.2013. The 4th respondent also has sanctioned salary for the petitioner from the date of acquiring such TET qualification ie., from 19.08.2013. The only controversial issue is that whether the petitioner is entitled to get salary between 04.10.2010 and 18.08.2013. This controversy, as has been rightly put it by the learned counsel for the petitioner, is no more res integra atleast for the time now, where the categorical findings of the Division Bench of this Court is in full force. According to the said order of this Court, any regulations framed under the provisions of the Right to Information Act includes G.O.Ms.No.181 School Education Department dated
15.11.2011 will have no application on minority institution both aided and unaided. Since the 5th respondent Institution is a minority institution and the said factor is admitted by the official respondents, certainly, the official respondents cannot deny the benefit of approval of the appointment of the petitioner from the date of appointment itself, ie., from 04.10.2010. Consequently the petitioner would also entitle to claim salary from the respondents from 04.10.2010. Therefore, the salary, which has not been paid or withheld by the official respondents between 04.10.2010 and 18.08.2013 is liable to be released to the petitioner forthwith.
http://www.judis.nic.in 9
14. In view of the aforesaid, this writ petition is allowed and the impugned order is quashed and the petitioner shall be entitled to get the approval of appointment as Tamil Pandit. Consequently she would be entitled to salary from 04.10.2010 till 18.08.2013 for the post of Tamil Pandit. Since the petitioner has already been sanctioned the salary from 19.08.2013 and the same is continuously paid, there is no further issue to be resolved. The needful, as directed above, shall be done by the official respondents within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petitions are also closed.”
15. In the said order, I have considered the judgment of the Division Bench of this Court made in W.A.No.213 of 2016 etc., batch dated 24.08.2016, particularly, paragraph Nos.59 & 60 of the judgment, which are also extracted hereunder for easy reference:
“59.Insofar as minority institutions are concerned, the contention of the learned senior counsel appearing for the minority schools is that when Tamil Nadu Recognised Private Schools (Regulation) Act 1973 received the assent of the President of India and it is still in force, it cannot be supplanted by an Executive Order, namely, by G.O.Ms.No.181 dated 15.11.2011. Further the Apex Court has clearly held in Pramati Educational & Cultural Trust that RTE Act, 2009 is not applicable to the minority institutions. Therefore, we have no hesitation to hold that the right conferred under Article 30(1) of the Constitution cannot be abrogated. Consequently, G.O.Ms.No.181 dated http://www.judis.nic.in 15.11.2011, which was issued pursuant to the directions of NCTE, 10 cannot be made applicable to the minority institutions.
60.In the light of the above, we are of the view that the Government cannot insist upon the minority institution, both aided or unaided, to abide by any Regulation framed under the provisions of the RTE Act. Therefore, we hold that G.O.Ms.No.181, School Education (C2) Department dated 15.11.2011 issued by the Government of Tamilnadu, is not applicable to the minority institutions. Similarly, G.O.Ms.No.76 dated 18.03.2015 issued by the Government of Puducherry, is also not applicable to the minority institutions.”
16. As has been pointed out in the afore cited judgment of the Division Bench of this Court, the requirement of TET qualification is no longer required in view of the law having been declared by this Court following the decision of the Apex Court in this regard.
17. Moreover, following the said decisions, a number of similar issues have been resolved like the one referred to above in C.Sangeetha's case, as the official respondents cannot insist upon the TET qualification for giving approval to a teacher appointed in a minority Education institution.
18. Here in the cases on hand, in the first case, the only reason cited for rejection of proposal was lack of TET qualification by the petitioner. In the second case, requirement of TET qualification is one of the http://www.judis.nic.in 11 reasons and some other reasons were also cited. However, the learned Counsel appearing for the petitioners would submit that in respect of the other reasons cited in the second one, ie., pertaining to the writ petition in W.P.(MD)No.5212 of 2018, the third respondent School had already rectified all those minor mistakes and had re-submitted the proposal to the official respondents for approval.
19. In both cases, it is the stand of the learned Counsel appearing for the petitioners that after rectification of the minor mistakes/infirmities pointed out by the official respondents, proposals in both cases were re-submitted by the respective third respondent School. However, this factor cannot be verified, as no one is appearing on behalf of the third respondent School in both cases. At any rate, if at all the proposal had already been forwarded by the third respondent, after rectification, it shall be considered by the official respondents without insisting upon the TET qualification. If such proposals are yet to be re-submitted by the third respondent School in both cases, the third respondent School shall immediately forward the same to the official respondents for consideration and approval.
20. Once such an exercise is completed, depending upon the outcome of the approval proposals, the decision with regard to the salary as http://www.judis.nic.in 12 well as other pay benefits payable to the petitioners can easily be decided and in fact, they would also be entitled to, in such case if the proposals are approved in both cases.
21. In view of the above said facts and circumstances, this Court is of the view that in both the writ petitions though the prayer is to consider the request of the petitioners for grant of increment to their salary, the same can be moulded or modified with a suitable direction which would give a quietus to the entire issue pertaining to the appointment and approval of the petitioners in the respective third respondent School and their other service benefits.
22. In the result, both the writ petitions are disposed of with the following directions:
(1) the third respondent in both writ petitions, if not already forwarded/re-submitted, the appointment proposal of the respective petitioners after rectifying the infirmities/mistakes, if any, pointed out by the official respondents, the same shall be immediately forwarded with the relevant documents/records to the official respondents within a period of two weeks from the date of receipt of a http://www.judis.nic.in copy of this order;13
(2) if the proposals have already been forwarded by the third respondent School or if the proposals are forwarded only pursuant to the aforesaid direction by the third respondent School, the official respondents, especially, the first respondent (presently re-designated as District Educational Officer, Tirunelveli) shall consider both the proposals without insisting upon the requirement of TET qualification from the petitioners and pass orders thereon, on merits and in accordance with law, with regard to the grant of approval to the petitioners within a period of six weeks from the date of receipt of a copy of this order if the proposals were already forwarded or within a period of six weeks from the date of receipt of such proposals if they are forwarded pursuant to the direction of this Court;
(3) it is made clear that once the appointment proposals of the respective petitioners are approved, the respective petitioners are entitled to get all service benefits including salary, increment, leave salary and other benefits as applicable to other approved teachers of that category and such benefits, by way of arrears, shall be calculated and paid to the petitioners within a period of six weeks thereafter; (4) it is further made clear that if the official respondents found any further infirmity/minor or major mistake in the proposals, other than http://www.judis.nic.in TET qualification, the same shall immediately be pointed out to the 14 third respondent School, who, in turn, on receipt of the said communication from the official respondents, shall immediately rectify and forward/re-submit the rectified proposal to the official respondents with supporting documents, if any, within a period of two weeks from the date of receipt of such communication and on receipt of such re-submitted/rectified proposal, if any, the same shall be considered by the official respondents, ie., the first respondent herein, as directed above, ie., in Direction No.2, within a period of six weeks from the date of receipt of such re-submitted/rectified proposal from the third respondent; and (5) there shall be no order as to costs.
Index : Yes/No 06.06.2018
Internet : Yes/No
gk
To
1.The District Elementary Educational Officer,
Tirunelveli,
Tirunelveli District.
2.The Additional Assistant Elementary Educational Officer, Radhapuram, Tirunelveli District.
3.The Additional Assistant Elementary Educational Officer, Valliyoor, Tirunelveli District.
http://www.judis.nic.in 15 R.SURESH KUMAR, J, gk W.P.(MD) Nos.5211 & 5212 of 2018 06.06.2018 http://www.judis.nic.in