Madras High Court
R. Balavadivel vs Chief Educational Officer, District ... on 28 October, 2005
Equivalent citations: (2005)4MLJ679
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, S.R. Singharavelu
ORDER M. Karpagavinayagam, J.
1. R. Balavadivel, petitioner herein, has filed this Writ Petition for issuance of a writ of certiorari, to call for the records pertaining to the order passed by the District Educational Officer, Dindigul, Dindigul District, second respondent, in his proceedings Rc. No. 2434/B1/2004, dated 30.06.2004, and quash the same.
2. The facts leading to the filing of this Writ Petition are summarised as follows :
"(a) Petitioner was appointed as a Laboratory Assistant in the year 1991 in N.S.V.V.Higher Secondary School, Pattiveeranpatti, third respondent herein. He is having the qualification of B.Com.,B.A.(English), and B.Ed. As such, he is fully qualified to be appointed as B.T.Assistant. One post of Tamil Pandit and one post of B.T.Assistant became vacant. Since he is qualified to the post of B.T.Assistant, he made a representation to the management, requesting to consider him for promotion to the post of B.T.Assistant, as there were no qualified hands working in the cadre of Secondary Grade Teacher or any other teaching category. After receipt of his representation, the management, without considering the same, gave an advertisement in the newspaper on 10.05.2004, calling for applications for the post of B.T.Assistant. Since his representation was not taken into consideration as per the rules provided, he filed W.P. No. 14383 of 2004, challenging the said advertisement. When the writ petition was taken up for admission on 19.05.2004, it was represented on behalf of the management that the post had already been filled up on 17.05.2004 and the fourth respondent was appointed. Therefore, this Court dismissed the writ petition, recording the said statement made by the management, but giving liberty to the petitioner to challenge the appointment order of the fourth respondent as B.T.Assistant.
(b) On coming to know that the fourth respondent was appointed by the management, which is an aided school, in violation of the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder, the petitioner filed another W.P. No. 18516 of 2004, seeking for a mandamus to cancel the appointment of the fourth respondent. When the said writ petition was taken up by a learned single Judge of this Court on 14.07.2004, it was represented on behalf of the management that though the appointment order was issued on 17.05.2004, the same was not yet approved by the Government. On the basis of the said representation, the writ petition was dismissed by the learned single Judge, giving liberty to challenge the order of approval, in the event of the approval being given by the Government.
(c) As against that order of the learned single Judge, the petitioner filed W.A. No. 3273 of 2004; the same was entertained and notice issued. In the meantime, the second respondent, namely, District Educational Officer, Dindigul, approved the appointment of the fourth respondent on 30.06.2004.
(d) In order to avoid any technicality, the petitioner has filed this Writ Petition, challenging and seeking for quashing of the order of approval of the second respondent, dated 30.06.2004.
(e) When the W.A. No. 3273 of 2004, challenging the order passed in W.P. No. 18516 of 2004, was pending before this Court, it was brought to the notice that the present Writ Petition No. 3605 of 2004 was connected. This Writ Petition was pending in the Madurai Bench of this Court. Therefore, on the orders of the Hon'ble Chief Justice, this Writ Petition was directed to be posted along with the Writ Appeal.
(f) Accordingly, the Writ Appeal as well as the Writ Petition came up before this Bench. When we found that the main question relating to the violation of Rule 15 (4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules,1974, was common in both the matters, we dismissed the Writ Appeal No. 3273 of 2003, which was filed against the mere appointment order, for having become infructuous, as the comprehensive question, relating to the appointment and the approval, could be considered in the Writ Petition itself."
3. The Government Pleader has not chosen to file any counter on behalf of the Chief Educational Officer, Dindigul, first respondent, and the District Educational Officer, Dindigul, second respondent, before this Court. The third respondent management alone has filed a counter.
4. The gist of the arguments, advanced by the learned Senior Counsel for the petitioner, is as follows :
"Under Rule 15 (4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, if any person is working in the same school in aided post, when vacancy arises in the aided post, he or she has to be given promotion, in accordance with the rules. In the present case, when the petitioner has been working in the school as a non-teaching staff, in the absence of a fully qualified teacher for the post in the lower category of Secondary Grade or other Vocational subject, he has to be given promotion. Ignoring the above rule, the appointment order and the approval order have been passed. Therefore, the order impugned, inasmuch as the fourth respondent is not at all a staff in the school working in the sanctioned post, is liable to be set aside, mainly on the reason that the appointment order is not valid in law."
5. Learned counsel for the third respondent management, through the counter as well as the oral submissions, would make the following :
"(a) One Sri Nagendira Pandian, a Secondary Grade Teacher working in the school, was promoted as Tamil Pandit. The resultant vacancy for the post of Secondary Grade Teacher was not filled up, because of the ban, imposed by the Government on recruitment. Thereafter, permission to fill up the vacancy was given by the proceedings of the Chief Educational Officer, Dindigul.. Accordingly, applications were invited, by affixing a notice in the school on 07.05.2004, but the petitioner did not apply for the same.
(b) After introduction of G.O.Ms. No. 100, Education, dated 27.06.2003, there is no Secondary Grade Teacher post and the same is redesignated as Junior Grade Graduate Teacher.
(c) According to Section 41 of the Tamil Nadu Recognised Private Schools (Regulation) Act, the petitioner has a statutory appeal remedy before the competent authority, but he has not chosen to file any such appeal.
(d) G.O.Ms. No. 212, dated 29.11.2001, imposing ban on recruitment of non-teaching staff, is still in force. The petitioner, being a non-teaching staff, if appointed to the teaching post, the resultant vacancy of Lab Assistant cannot be filled up. This is one of the important reasons for direct recruitment of the fourth respondent.
(e) The appointment of fourth respondent on 17.05.2004 was approved by the second respondent on 30.06.2004 as a Junior Grade B.T.Assistant, on a consolidated scale of pay for five years. The petitioner's claim is based on promotion. There is no fundamental right to the petitioner to claim promotion. Therefore, the Writ Petition is liable to be dismissed."
6. On the strength of the above pleas, learned counsel for the parties would argue at length.
7. We have carefully considered the rival submissions and perused the records.
8. At the outset, it shall be stated that there is no dispute in the fact that the third respondent management is an aided school and, as such, it is governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder for all the purposes, including promotions. Therefore, it would be better to refer to Rule 15 (4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, which is as follows :
"15 (4) (i) Promotion shall be made on grounds of merit and ability seniority being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of teachers shall be made by the following methods :-
(i) Promotion among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method (i) above,-
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers.
(b) Appointment of teachers from any other school.
(c) Direct recruitment.
In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-Primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers Training Institutions setting out the reasons for such appointment."
9. On going through the above rule, it is clear that in terms of Rule 15 (4) (i), promotion shall be made on merit and ability, seniority being considered only when merit and ability are approximately equal. Rule 15 (4) (ii) mandates that appointments to various categories of teachers shall be made firstly by promotion among the qualified teachers in that school and, if no qualified teachers are available in that school, other persons including the non-teaching staff working in that school, can be employed, provided they are fully qualified to hold the post of teachers, and, only when they are not available, appointment of teachers from any other school or by direct recruitment can be made with the prior permission of the District Educational Officer or the Chief Educational Officer, as the case may be.
10. Admittedly, in this case, the fourth respondent is appointed as a Secondary Grade Teacher or a Junior Grade Graduate Teacher. He is not working in a sanctioned post in the same school. On the other hand, the petitioner is working as a Laboratory Assistant, a non-teaching staff, from the year 1991 in the same school and he has the qualification of B.Com., B.A.(English) and B.Ed.
11. Before filling up the post, the management is under obligation to comply with the rules, to find out whether any suitable candidate for filling up of the post is available in the school itself. As a matter of fact, no other teacher for the post of Secondary Grade Teacher was available in the school. Then, Rule 15 (4) (ii) would apply and the post has to be filled up by promotion among the qualified teachers available in the school. When no qualified and suitable candidate is available in the school, under Rule 15 (4) (ii) (ii) (a), the management has to appoint other persons employed in the school i.e., non-teaching staff, provided they are fully qualified to hold the post of teachers. Admittedly, this was not done. On the other hand, an advertisement was given on 10.05.2004 for filling up the post of B.T.Assistant. Even prior to that, on 05.02.2004, the petitioner sent a representation, requesting the management to consider him for appointment of B.T.Assistant, as he has got the qualification of B.Com., B.A.(English), and B.Ed. Without considering that, the advertisement was given, seeking for applications. When the petitioner challenged the same in W.P. No. 14383 of 2004, it was represented on behalf of the management on 19.05.2004 that the said post had already been filled up, by passing an order of appointment. Hence, the writ petition was dismissed, giving liberty to the petitioner to challenge the appointment order.
12. Accordingly, the petitioner filed W.P. No. 18516 of 2004, challenging the appointment order, seeking for a mandamus to cancel the said appointment, on the ground of violation of Rule 15 (4) of the Rules. When the said writ petition was taken up, it was represented on behalf of the management that though the appointment order was passed, it was not yet approved. On the basis of the said representation, the petitioner was asked to wait till the approval was made and then challenge the same. On coming to know of the approval order passed by the second respondent, the petitioner has again come up with this Writ Petition, seeking for a certiorari.
13. The records would reveal that even though the approval order was passed by the second respondent on 30.06.2004, it was represented before this Court on 14.07.2004 that the appointment order was not yet approved and, on the basis of the said representation, the learned single Judge dismissed the Writ Petition, giving liberty to the petitioner to challenge the approval order, whenever it is passed. There is no reason as to why the management or the Government Pleader had suppressed the actual fact and not brought to the notice of the learned single Judge on 14.07.2004 that the approval order was passed on 30.06.2004 itself. Thus, it is clear that the petitioner has been driven from pillar to post. The petitioner was vigilant enough even when the advertisement was given, violating Rule 15 (4) of the Rules, to approach this Court in W.P. No. 14383 of 2004, challenging the same, when the writ petition was dismissed, directing the petitioner to challenge the appointment order. Since the appointment order was issued in the meantime, the petitioner challenged the appointment order in W.P. No. 18516 of 2004 and the said writ petition was also dismissed on the ground that no approval order was passed, but liberty was given to challenge the approval order whenever it was passed, even though, factually, the approval order was already passed.
14. Learned counsel for the management would submit that the post of Junior Grade Graduate Teacher alone has been filled up on a consolidated salary and, as such, Rule 15 (4) would not apply.
15. This submission, in our view, is quite untenable. As a matter of fact, it is not disputed that on 05.02.2004 itself the petitioner sent an application, requesting for his appointment as B.T.Assistant, as he has got the required qualification. But, without considering the same, an advertisement was given on 10.05.2004. This shows that the applications were called for, to fill up the post of B.T.Assistant.
16. One another argument advanced by the learned counsel for the management is that the petitioner was not promoted and posted as B.T.Assistant, for the reason that if the petitioner, being a non-teaching staff, is appointed to the teaching post, the resultant vacancy of Lab Assistant cannot be filled up.
17. But, it is now brought to the notice through the typed set filed by the respondents that the petitioner has been promoted as Junior Assistant from 01.09.2005. Therefore, the reason given for not promoting and posting the petitioner in the post of B.T.Assistant by following Rule 15 (4) of the Rules, in our view, is not bona fide.
18. The following decisions of this Court would cover the application of Rule 15 (4) :
(i) W.P. No. 6607 of 1991 (D.Singarayan and Ors. v. Government of Tamil Nadu), dated 05.09.1995 ;
(ii) W.A.Nos.1179,242 of 1993 etc. (Somasundaram v. The Secretary, CBI Diocese, Madras, and Ors.), dated 06.09.1994 ;
(iii) W.P. No. 18900 of 1999 (M. Chelladorai v. Joint Director of School Education and Ors.), dated 08.01.2003 ; and
(iv) (The Secretary, Saliar Mahajana Higher Secondary Schools v. G.Subburaj).
19. Therefore, we are of the view that the appointment order dated 17.05.2004 and the consequential approval order dated 30.06.2004 would suffer from grave illegality. As such, they are quashed. The management is directed to consider the request of the petitioner and appoint him, subject to the suitability, after applying Rule 15 (4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, framed under the Act.
20. Writ Petition is allowed. No costs. Consequently, the connected W.P.M.P. No. 3635 of 2004 is closed.