T.E.L.C. Middle School vs The Director Of Elementary Education on 26 February, 2010

[Cites 1, Cited by 2]

Madras High Court

T.E.L.C. Middle School vs The Director Of Elementary Education on 26 February, 2010

2.The petitioner school is an aided minority middle school having approved staff strength of one Head Master, 11 Secondary Teachers and one full time Special teacher viz., Agri teacher. Mr.Alagathevan was the Agri teacher and he retired on 31.10.1998. The petitioner school felt that the rural students will be benefited if the Agri teacher post is converted into sewing teacher post and therefore, by letter, dated 13.04.1999, requested the respondents through Additional Elementary Educational Officer, Usilampatti, to convert the Agri teacher post into sewing teacher post. Expecting the conversion of post, the petitioner school also appointed, Selvi D.Saral Selvi Anbumani, a qualified sewing teacher in the vacancy caused by the retirement of Alagathevan and applied to the respondents to approve the appointment of Mr.Selvi D.Saral Selvi Anbumani as sewing teacher and the Additional Educational Elementary Educational Officer, Usilampatti, forwarded the proposal of the petitioner school for approval to the respondents, but no order has been passed by the respondents. The aforesaid Selvi D.Saral Selvi Anbumani was working in the petitioner school from 05.07.1999 to 13.02.2006 and as her appointment was not approved and salary was not paid, she left the petitioner school on 15.11.2004 and in her place, the petitioner school appointed, Mrs.Pournami, who is also a qualified sewing teacher on 13.02.2006 and sought for the approval of the respondents through Additional Elementary Educational Officer, Usilampatti, by letter, dated 09.02.2007. The 2nd respondent, by his proceedings, dated 24.01.2006, accorded the sanction for conversion of Agri teacher into sewing teacher post in terms of G.O.Ms.No.39, School Education (D1) Department, dated 21.03.2003. Nevertheless, the appointment of Selvi D.Saral Selvi Anbumani or Mrs.Pournami was not approved by the educational authorities and therefore, the petitioner school filed W.P.No.10739 of 2007 for direction, directing the 2nd respondent to approve the appointment of sewing teacher and this Court has passed an order directing the respondents to consider the representation of the petitioner school, dated 14.06.2007 and passed orders with regard to grant of approval of the said sewing mistress with effect from 24.01.2006 on merits. Thereupon, the impugned order was passed by the 2nd respondent that as per G.O.Ms.No.39, School Education (D1) Department, dated 21.03.2003, the appointment of Selvi D.Saral Selvi Anbumani or Mrs.Pournami, as sewing teachers cannot be approved and the order passed by the 2nd respondent, dated 24.01.2006 was made against the terms of G.O.Ms.No.39, School Education (D1) Department, dated 21.03.2003 and only the first respondent has got power to sanction conversion of one post into another and as per G.O.Ms.No.39, dated 21.03.2003, conversion cannot be permitted and therefore, the request of the management cannot be considered and the appointment cannot be approved. This order passed by the 2nd respondent, dated 11.06.2008 is challenged in this writ petition.

3.The 2nd respondent filed a counter stating that the petitioner school is having a staff strength of 13 teachers, consisting of one Headmaster, 11 Secondary Grade Teacher and one Pre-vocational Instructors(Agri). The appointment of Selvi D.Saral Selvi Anbumani, as sewing teacher was made against the rules viz, without getting permission for conversion of Agri subject into Sewing subject and without the approval for the post, the appointment cannot be approved. Further, as per G.O.Ms.No.39, dated 21.03.2003, no pre-vocational post of sewing or music be filled up with effect from 12.07.2002 and the vacant post in the petitioner school has to be filled up by Agri qualified teacher and as no conversion order was passed, that post must be kept vacant for Agri subject and as per the aforesaid G.O.Ms.No.39, dated 21.03.2003, the vacant post of Agriculture craft cannot be filled up, by appointing sewing teacher and the order passed by the 2nd respondent, dated 24.01.2006 was an erroneous one and therefore, it was cancelled and as that post was filled by a person not qualified to take the Agriculture subject and in that place, a sewing teacher was appointed, the approval sought by the management was not granted. It is further stated that when vacancy arose in the year 1999, by the retirement of Alagathevan, the petitioner school ought to have filled up the vacancy, by appointing Agri teacher and there is no necessity to change the craft subject into sewing subject and no conversion order was passed.

4.It is contended by Mr.C.Godwin, the learned counsel appearing for the petitioner that the petitioner school has applied for conversion of Agri post into sewing teacher on 16.11.99 and the Additional Elementary Educational Officer, Usilampatti, forwarded the same to the 2nd respondent, dated 27.11.1999, recommending the conversion into Sewing post and the 2nd respondent also in-turn forwarded the representation of the petitioner school for conversion of the post, by proceedings Na,.Ka.No.4099/A2/2000, on various dates starting from 19.06.2000 and by letter, dated 05.07.2002 requested the first respondent to consider the representation of the petitioner and the first respondent, did not take any action on the representation made by the petitioner and also on the recommendation of the subordinates to approve the conversion for more than six years. Therefore, the 2nd respondent, by his proceedings, dated 24.01.2006, granted approval for the conversion of the post in Agri teacher to sewing teacher post and even after that, the appointment of the teachers in that place was not approved by the first respondent. In that circumstances, the petitioner filed W.P.No.10739 of 2007 seeking for the approval of the post of sewing mistress from the date of appointment and this court has directed the 2nd respondent to consider the representation and thereafter, the impugned order was passed stating that as per G.O.Ms.No.39. School Education (D1) Department, dated 21.03.2003, the request of the petitioner cannot be considered. He further submitted that the first respondent having delayed the approval of conversion for more than 6 years cannot take advantage of the G.O.Ms.No.39, dated 21.03.2003, which was passed in the year 2003.

5.According to the learned counsel appearing for the petitioner that had the first respondent granted approval for conversion for the subject Agri to sewing subject in the year 1999, the teacher appointed would have received the salary and G.O.Ms.No.39, dated 21.03.2003, prohibits the appointment came into effect only from 12.07.2002 and the first respondent having failed to act on the representation made by the petitioner, cannot now take advantage of the G.O.Ms.No.39, dated 21.03.2003 and refuse to accord approval for conversion. He further submitted that as per students strength, the petitioner school is entitled to take 14 teachers and therefore, there is no surplus teacher and realising the need for the appointment of a qualified sewing teacher, the petitioner had applied for conversion of that post and without realising the welfare of the students, the first respondent delayed the request for approval for more than seven years and hence, he cannot take shelter under G.O.Ms.No.39, dated 23.03.2003. Further, he submitted that the petitioner school is a minority school and therefore, they are entitled to appoint teachers without getting prior permission and therefore, the approval sought for by the petitioner cannot be denied.

6.Per contra, the learned Government Advocate, Mr.M.Rajarajan, submitted that the approval sought for by the petitioner cannot be granted by reason of G.O.Ms.No.39, dated 23.03.2003 and the earlier order passed by the 2nd respondent, granting conversion of the subject was also not legal as the 2nd respondent has no power to do so and it is also against the terms of G.O.Ms.No.39, dated 23.03.2003 and hence, erroneous order passed by the 2nd respondent was cancelled and the impugned order was passed rejecting the request of the petitioner for granting approval for conversion of the post and also for the appointment of Sewing teacher. In short, the learned Government Advocate, submitted that as per G.O.Ms.No.39, dated 23.03.2003, the appointment cannot be approved and the first respondent did not find any reason for the conversion of the post of Agri teacher to sewing teacher .

7.I have given my anxious consideration to the submission made both the counsels.

8.In this case, it is not in dispute that the petitioner school is entitled to have 14 teachers including headmistress and the school is entitled to have one pre-vocational teacher. Mr.Alagarthevan, was working as Agri teacher in the category of pre-vocational teacher and he retired on 31.10.1998 and in that place, having regard to the needs of the students a sewing teacher was appointed and approval was sought for, for conversion of the post. Being the minority school, there is no need for the petitioner to get prior permission for the appointment of teacher and it is enough after the appointment, if the school seeks approval of the authorities for the appointment made by them. In this case, had the petitioner appointed one Agri teacher, there would not have been any difficulty and the appointment would have been ratified by the respondents, but instead of appointing Agri subject qualified teacher, the petitioner school management thought it fit that the school needs a sewing teacher, than an Agri teacher and appointed one qualified sewing teacher and applied for conversion of that post, by letter, dated 11.04.1999. Though the Additional Elementary Educational Officer, Usilampatti, forward the letter seeking approval by the petitioner, even on 27.11.1999, no action was taken by the respondents either to refuse or grant approval for the conversion.

9.Further, the respondents have taken a stand that as per G.O.Ms.No.39, dated 21.03.2003, conversion is permitted for exchanging of post from Music teacher to sewing teacher and no permission was given for exchanging of Agri teacher to sewing teacher and the Assistant Elementary Educational Officer, Usilampatti, has no power to approve the conversion and therefore, the order passed by Assistant Elementary Educational Officer, approving the conversion of post from Agri teacher to Sewing teacher is erroneous.

10.For better appreciation of the stand taken by the learned Government Advocate, appearing for the respondents, G.O.Ms.No.39, School Education (D1) Department, dated 21.03.2003 is to be considered. The aforesaid G.O. reads as follows:

"muR cjtp bgWk; gs;spfspy; cs;s rpwg;ghrphpah; gzpaplA;fis epug;g[tJ kw;Wk; gzpapl khw;wk; mDkjpj;jy; bjhlh;ghf Kjyhtjhf gotf;fg;gl;l murhizapy; Mizfs; btspaplg;gl;Ls;sd. nt;thizfis bray;gLj;JtJ bjhlh;ghf rhh;epiy mYtyh;fshy; Bfl;fg;gLk; bjspt[iufSf;F gjpyspf;Fk; bghUl;L gs;spf; fy;tp naf;Feh; rpy bjspt[iufisf; Bfhhpa[s;shh;. njdog;gilapy; Kjyhtjhf gof;fg;gl;l murhiz (pep.vz;.104 gs;sp fy;tp ehs; 12.07.02 f;F fPH;f;fz;lthW bjspt[iufs; btspaplg;gLfp;d;wd.

1.muRg; gs;spfspYs;s ijay; kw;Wk; nir Mrphpah; gzpaplA;fis epug;gpf; bfhs;tjw;fhd jilia ePf;fp btspaplg;gl;l murhiz (epiy) vz;.132, gs;spf; fy;t,p ehs; 27.4.98I 12.07.02 Kjy; muR cjtp bgWk; gs;spfSf;Fk; ePl;of;f mDkjpf;fg gLfpwJ.

2.murhiz (epiy) vz;.132 gs;spf; fy;tp, ehs; 27.1.98I muR cjtp bgWk; gs;spfSf;F 12.07.02 Kjy; ePl;of;f BkBy ndk; (1) Mizaplg;gl;lLs;sjhy; 12.07.2002 Kjy; ijay; kw;;Wk; nir Mrphpah; epakdk; kl;LBk bra;ag;glBtz;Lk,; nju rpwg;ghrphpah;/ifj;bjhHpy; Mrphpah; epakdA;fs; bra;ag;glf;TlhJ vdj; bjhptpf;ffg;gLfpwJ.

3.11.07.2002 Koa bra;ag;gl;Ls;s midj;J tif ifj;bjhHpy; Mrpphpah;fspd; epakdA;fsisa[k; (tptrhak;, ku Btiy, bert[, ijay;, nir Bghd;wit) mit mDkjpf;fg;gl;l epue;ju gzpaplA;fspy; tpjpKiwfspd;go bra;ag;gl;oUg;gpd; mtw;wpw;F chpa mYtyh; xg;g[jy; tHA;fp mDkjpf;fg;gLfpwJ.

4.11.07.2002 Koa fhypahf nUe;j midj;J tif (tptrhak;, ku Btiy, bert[, ijay; nir Bghd;wit ifbjhHpy; Mrphpah; gzpaplA;fis chpa tjpKiwfisg;gpd;gw;wp epug;gp bfhs;s mDkjp tHA;g;gLfpwJ.

5.12.07.2002 Kjy; ijay; kw;Wk; nirahrphpah; gzpaplA;fis kl;LBk epug;gpf;bfhs;s mDkjp tHA;fg;gLfwJ. 12.07.2002 Kjy; Btbwhe;jtif rpwg;ghrphpah;/ifj;;bjhHp;y; Mrphpah; fhypg;gzpaplA;fisa[k; epug;gf;TlhJ vdf; bjhptpf;fg;gLfpwJ.

6. 11.07.2002 tiu bra;ag;gl;l epakdA;fspy; gzpapl khw;wk; Bfhhp epakdk; bra;ag;gl;L Vw;gspf;fg;glhkYs;s mdij;J tif tptrhak;, ku Btiy, bert[, ijay; nir Bghd;wit ifbjhHpy; epakdA;fis; mit gs;spfspd; Bjit kw;Wk; jFjpapd; mog;gilapy; tpjpfspd;go bra;ag;gl;oUg;gpd; mtw;wpw;F chpa mYtyh; xg;g[jy; tHA;f mDkjp mspf;fg;gLfpwJ.

7. 12.7.02 Kjy;; nir Mrphpah; gzpaplj;ij ijay; Mrphpah; gzpaplkhft[k; ijay; Mrphpah; gzpaplj;ij nir Mrphpah; gzpaplkhft[k;, gs;spfspd; Bjit kw;wk; jFjpapd; mog;gilapy; khw;wk; bra;J bfhs;s mDkjp tHA;fg;gLfpwJ. 12.7.02 Kjy; BtW ve;j tif bjhHpyhrpah; gzpapl khw;wKk; mDkjpf;fglf;TlhJ vdj; bjhptpf;fgLfpwJ.

8. BkBy ndk; 1 Kjy; 7 bjhlh;ghf rpWghd;ik gs;spfisg; bghWj;jtiu chpa mYtyhpd; Kd; xg;g[jy; bgwhky; fhypg;gzpaplA;fis epug;g tHptif cs;sjhy; mjw;F gs;spfspy; 11.7.02 tiuapy; gs;sp eph;thfA;fshy; jhkhfBt bra;agl;l epakdA;fSf;F chpa mYtyh;fs; xg;g[jy; tHfA;fyhk; vd;Wk;, rpWghd;ikapy;yhj gs;spfisg; bghWj;jtiu 11.7.2002 my;yJ mjw;F Kd;dh; chpa mYtyhpd; Kd; xg;g[jy; bgw;W mjdog;gilap;y; bra;ag;gl;l epakdA;fSf;F chpa mYtyh;fs ;xg;g[jy; tHA;fyhk; vd;Wk; bjspt[gLj;jg;gLfpwJ.

nJ bjhlh;fhf Bkw;bfhz;L gs;sp eph;thfA;fs; kw;Wk; rhh;epiy mYtyh;fshy; Iak; VJk; vGg;gg;gLkhapd; nt;thizap;y; Behf;fj;jpw;Fk; (Spirit of the Order) tpppjpKiwfSf;Fk; Fe;jfk; Vw;glhj tifapy; jf;f bjspt[iufs; tHA;fp bewpg;gLj;JkhW gs;spf; fy;tp naf;Feh; Bfl;Lf; bfhs;sg;gLfpwhh;.

11.As per the said G.O., permission was granted to appoint sewing and music teacher from 12.07.2002. Further, if any pre-vocational post is filled up upto 11.07.2002 in a permanent post, those appointments can be ratified. Further, permission was also granted to fill up pre- vocational post after following the rules. From 12.07.2002 sewing and music teacher post can be filled up and except, those two posts other pre-vocational posts cannot be filed up.

12.It is further made clear from clause (6) of the said G.O. that permission was granted to the Educational Officer concerned to grant approval, if any post has been filled up after converting the post in respect of pre- vocational post, according to the necessity of the school, if the appointments were made prior to 11.07.2002, after applying for the conversion. Therefore, according to me, as per clause 6, when any application is made by the school authorities for conversion of post, from one pre-vocational subject to another pre-vocational subject and when such requests were not considered and the school management appointed any person, in that place, according to the necessity of the school and on the basis of the qualification, the Educational Authorities can approve the same. In this case, the post of Agri teacher became vacant by the retirement of Alagathevan on 31.10.1998. On 13.04.1999, the petitioner school applied for conversion of Agri post into sewing post and Selvi D.Saral Selvi Annbumani, was appointed as sewing teacher on 05.07.1999. On 16.11.1999, representation was sent by the petitioner school to approve the appointment of Selvi D.Saral Anbumani, as sewing teacher and that was forwarded by the Additional Elementary Educational Officer, Usilampati on 27.11.1999 with his recommendation and that was also further followed by the request of the 2nd respondent, by his proceedings, in Na.Ka.No.4099/A3/2005, dated 24.01.2006, but no action was taken by the respondents either to approve the conversion of post or rejecting the request made by the Educational Authorities. Mean-while, Selvi D.Saral Selvi Anbumani, who was appointed on 05.07.1999, resigned her post due to non payment of salary and in her place, on 13.02.2006, Mr.Pournami, a qualified sewing teacher was appointed and that appointment was also sought to be approve and earlier to that 21.03.2003, the 2nd respondent granted approval for the conversion. These facts would make it clear that by reason of the in- action on the part of the first respondent in not considering the request of the petitioner school from 1999 onwards, the school was not able to appoint a qualified teacher and even though, the appointment was made, the teachers were not able to function effectively as they were not paid salary. Further, the petitioner school sought for approval for conversion prior to 11.07.2002 and anticipating the approval for conversion Selvi D.Saral Selvi Anbumani, was appointed and she also worked till 15.11.2004 and on 21.04.2006, the 2nd respondent approved the conversion of post and on 13.02.2006, Mr.Pourmani was appointed and therefore, it has been made clear in the representation of the petitioner that having regard to the demand from the students and having realised that the students will be benefited, by appointing a sewing teacher, conversion was sought for. Therefore, according to me, the appointment of Selvi D.Saral Selvi Anbumani and Mrs.Pournami were made as per the rules, and even prior to the appointment, approval was sought for, for converting Agri post to Sewing post and that request for conversion pending for consideration before the first respondent and hence, as per clause 6 of the aforesaid G.O., the Educational Authorities have to grant permission such request for approval for conversion. Hence, the order of the first respondent stating that the 2nd respondent has no power to order conversion and as per G.O.Ms.No.39, School Education (D1) Department, dated 21.03.2003, the conversion of post cannot be permitted is wrong and that order cannot be sustained.

13.Further, as per clause (7) of the G.O.Ms.No.39, from 12.07.2002 onwards, conversion of Music teacher to sewing teacher and vis-a-vis alone is permitted. In this case, the approval was sought for earlier to 12.07.2002 and therefore, clause (6) will come into play and the authorities are directed to grant approval.

14.This case can be viewed from another angle. As stated supra, an application for approval was made in the year 1999 and had the educational authorities considered the same, immediately within a reasonable time, the appointment of Selvi D.Saral Selvi Anbumani, would have been ratified and the authorities were lethargic in considering the representation of the petitioner for more than seven years and therefore, they cannot take advantage of their in- action and deny such permission after the same was pending for seven years. Therefore, in my opinion, the respondents cannot take advantage of their in- action and deny the benefit that is being enjoyed by the students of the school by the service of the sewing teacher. Therefore, the impugned order is liable to be quashed and accordingly, it is quashed and the respondents are directed to grant approval for conversion and approve the appointment of Saral Selvi Anbumani as well as Pourmani for the post of sewing teacher.

15.In fine, this writ petition is allowed. Consequently, Accordingly, this writ petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

er To

1.The Director of Elementary Education, Nungampakkam, Chennai.

2.The District Elementary Educational Officer, Thallakulam, Near Gandhi Museum, Madurai-2.

3.The Government Advocate, Madurai Bench of Madras High Court, Madurai.

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