Madras High Court
S. Arulraj vs The Director Of Elementary Education on 5 March, 2013
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:5-03-2013
CORAM
THE HON'BLE MR.JUSTICE VINOD K. SHARMA
WRIT PETITION Nos.10329 and 25695 of 2009
and M.P.Nos.1 and 2 of 2009
S. Arulraj .. Petitioner in WP No.10329 of 2009
D. Arul Mary .. Petitioner in WP No.25695 of 2009
vs
1.The Director of Elementary Education,
College Road, Chennai-6
2. The Chief Educational Officer,
Kanchipuram
3. The District Elementary Educational Officer,
Kanchipuram
4. The Correspondent,
St. Joseph Higher Secondary School,
Tambaram,
Chennai-59
5. D. Arul Mary
(impleaded as per order dated 28.10.2009
in MP No.3/2009)
... Respondents in WP No.10329 of 2009
1. District Educational Officer,
Chengalpattu
2. The Correspondent,
St. Joseph Higher Secondary School,
Tambaram,
Chennai-59
... Respondents in WP No.25695 of 2009
W.P.No.10329 of 2009: Writ Petition filed under under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the records pertaining to the impugned order passed by the first respondent in proceeding Mu.Mu.No.11284/G2/05 dated 10.11.08 and he consequential order passed by the third respondent in proceeding Na.Ka.No.2743/A3/05 dated 27.4.2009 and the order of the second respondent in proceeding Na.Ka.No.8630/A5/2009 dated 28.5.2009 and quash these orders.
W.P.No.25695 of 2009: Writ Petition filed under under Article 226 of the Constitution of India praying this Court to issue a Writ of Mandamus to direct the respondents to implement the order passed by the Director of Elementary Education, College Road, Chennai-600006 in Mu.Mu.No.11284/G2/05 dated 10.11.08 and the consequential order passed by the third respondent in proceeding Na.Ka.No.2743/A3/05 dated 27.4.2009 and the order of the second respondent in proceeding Na.Ka.No.8630/A5/2009 dated 28.5.2009.
For petitioner in
W.P.No.10329/09 : Mr.S.M. Subramania,
For petitioner in
W.P.No.25695/2009
& R.5 in WP No.10329/09 : Mr.A.R. Nixon
For R.1 to R.3 in : Mr.P. Karthikeyan
W.P.No.10329/29 & Govt. Advocate
R.1 in WP No.25695/09
For R.4 in WP No.10329/09
& R.2 in WP No.25695/09 : Mr.Fr.A. Xavier Arulraj
COMMON ORDER
This judgement shall dispose of the writ petitions, viz., Sl. No. Case No. Name of the Petitioners 1 W.P.No.10329 of 2009 S. Arulraj 2 W.P.No.25695 of 2009 D. Arul Mary as common question of law and facts are involved in both the writ petitions. However, for the sake of brevity, the facts are taken from W.P.No.10329 of 2009.
2. The petitioners have approached this Court with a prayer for issuance of a Writ in the nature of certiorari, to quash the impugned order Mu.Mu.No.11284/G2/05 dated 10.11.08 passed by 1st respondent and the consequential order passed by the third respondent Na.Ka.No.2743/A3/05 dated 27.4.2009 and also the order of the second respondent Na.Ka.No.8630/A5/2009 dated 28.5.2009.
3. The petitioner was appointed as Secondary Grade Teacher on 18.7.2005 and subsequently promoted to the post of Middle School Head Master on 12.12.2001. The school was upgraded as High School on 1.1.2003 and from June 2004 onwards it became the Higher Secondary School. Consequent to the upgradation of School as High School the petitioner was posted as B.T. Assistant (History) on 1.1.2003, since he possessed requisite qualification for the post of B.T. Assistant (History).
4. The petitioner had completed B.A. Degree in 1980 and B.Ed in December 1986 in English and Social Studies. The petitioner acquired M.A History in May 1992 and M.Ed in May 1994 therefore was entitled to hold the post of B.T. Assistant (History).
5. The respondent school is a minority institution. The appointment of the petitioner as Middle School Head Master was approved by the District Elementary Educational Officer, Kanchipuram on 26.12.2001 and accordingly, his pay was fixed by the competent authority.
6. One Smt.Arul Mary filed a complaint to challenge the appointment of the petitioner, as Middle School Head Master on 12.12.2001 as also the grant of incentive increments for additional qualifications. The petitioner, for the reason best known, has not impleaded the Tmt. Arul Mary as a party to this writ petition. However, on the application by the Tmt. Arul Mary, she has been impleaded as party to this writ petition.
7. It is on the complaint filed by the fifth respondent D. Arul Mary, that the impugned order was passed holding that the appointment of the petitioner as Middle School Head Master was wrong on the ground that D. Arul Mary was senior to the petitioner. The respondent has also ordered that the increment and the salary paid to petitioner be recovered.
8. The petitioner claims himself to be senior to D. Arul Mary, and submits that impugned order are totally arbitrary.
9. The impugned order is challenged by the petitioner on the ground, that before passing the impugned order, no opportunity of hearing was given to the petitioner, nor the copy of the order was supplied to the petitioner. Therefore, impugned order suffers from violation of principle of natural justice.
10. The second ground of challenge is that the order of recovery cannot be sustained, in view of the settled law that the benefit, even if wrongly given, then in absence of allegations of fraud or misrepresentation against the employee, cannot be withdrawn with retrospective effect, and recovery effected.
11. The learned counsel for the fifth respondent vehemently contends, that the notice was issued to the petitioner and that copy of the impugned order was also supplied.
12. It is also the contention of the learned counsel for the fifth respondent that the petitioner was ineligible for appointment as the subject, in which, the petitioner was qualified, was not an approved subject for a person to be appointed as Middle School Head Master. Therefore, the appointment of the petitioner itself was illegal. It is however not disputed, that it was on the appeal by the fifth respondent, that proceedings were initiated against the petitioner, which resulted in passing of the impugned order.
13. On consideration, this Court finds that writ petition deserves to be allowed.
14. The translated copy of the impugned order reads as under:
Proceedings of the Director of Elementary Education Chennai-600 006, Tamil Nadu K.Dis.No.11284/G2/05 dated 10.11.2008.
- - - -
Sub: Elementary Education Aided Schools Kanchipuram District Chitlapakkam Union Tambaram, ST.Joseph's Middle School Headmaster Thiru S. Arul Raj issue of promotion and incentive increment given appeal regarding, Ref: 1.Appeal petition received from Thirumathi.D. Arulmary, Special Grade Secondary Grade Teacher, St. Joseph's School, Tambaram, Chennai 600 059 dated 9.3.2005 and 21.8.2008
2. From the District Elementary Education Officer,Kanchipuram Dist.R.C.No.2743/A3/05/ dated 16.6.2008.
Tmt.D. Arulmary, Secondary Grade Teacher, St. Joseph's School, Tambaram, Chitlapakkam Panchayat Union, Kanchipuram District has appealed to the Joint Director (Aided Schools) cum the Appellate Authority in the matter of wrong sanction of incentive increment and wrong promotion given as Headmaster to Mr.S.Arulraj.
On the basis of the appeal petition, remarks of the District Elementary Education Officer, Kanchipuram District were obtained in the reference 2 cited.
After careful consideration of the appeal petition and the remarks obtained from the District Elementary Education Officer the following orders are issued:-
St.Joseph's Middle School, Tambaram is a minority institution. Even though it is the right vested with the management school to appoint the teacher and promote to the particular post as they please, he should not overlook the Educational qualifications prescribed for the post by the Education Department. He should fulfill the condition of the required Educational qualifications for the post in the matter of appointment or promotion of a teacher.
The management of the minority schools should not take independent decision regarding the prescribed educational qualifications as against the set rules.
In this particular case, Thiru.S. Arulraj was appointed as a secondary grade teacher in St. Joseph's Middle School on 18.7.1995. He qualified himself B.A degree in philosophy as main subject and qualified B.Ed degree. This subject philosophy is not a teaching subject for standards 6th to 8th. Hence the incentive increment sanctioned for this subject holder on 31.12.88 is also not in order. He has also received another incentive increment for passing of P.G course (History) which is as main subject also not a related subject to basic degree course subject. This is also not in order since it is against the G.O.Ms.No.907/P & AR (FR II) dated 17.9.86.
In this circumstances Thiru.S. Arulraj was promoted as a Headmaster on 26.12.2001. In G.O.Ms.No.1732 education dated 30.8.80 and G.O.Ms.No.662 education dated 13.4.82 it has been clearly mentioned that promotion should be given only to the teachers who studied the required subject as main subject in degree course to teach the subjects in standards 9th and 10th. This particular teacher got degree only in Philosophy in his degree course. The subject Philosophy is not a teaching subject for standards 6 to 8. Hence the promotion as B.T Headmaster given is also not in order. Again, as per rules, this promotion given to Mr.S. Arulraj, the secondary grade teacher overlooking a senior most qualified teacher is also not in order.
A similar case is also on the record in the same Kanchipuram district, in Kattankolathur Union. It is ordered to recover and remit the excessive amount of 2 incentive increments wrongly sanctioned to Mr.Ramesh, Secondary grade Assistant for his M.Com., degree by the local fund Audit department vide order No.288/2000/A1/dated 2.3.2000. Likewise it is also highly objected to the sanctioning of incentive increments to Mr.S. Arulraj, Secondary Grade Assistant.
It is also contrary to G.O.Ms.No.907 P & AR dated 17.9.86. There is also a clear mention at this in the appeal.
Without considering the appeal petition of a qualified senior teacher, an unqualified person (Mr.S. Arulraj) was given promotion as Middle School Headmaster. The qualifications and seniority of the appeal petitioner was also overlooked. MR.S. Arulraj was not qualified in teaching subject as main subject in degree course. It is also not in order.
After careful examining the appeal petition, all the facts and figures are found to be correct and in order and in accordance with Government orders. So it informed to the Elementary Education Officer to take suitable action accepting the requests of the appeal petitioner and to regularise the services of legitimate individual concerned.
15. A reading of the order itself shows that the appeal filed by the fifth respondent was accepted without issuing a notice to the petitioner, but only on the comments of Elementary Educational Officer, Kanchipuram.
16. The impugned order, therefore, can safely said to be arbitrary and not sustainable in law as no order adverse to an employee, affecting his civil rights, can be passed without following the principles of natural justice. The order of recovery is also against settled Law that benefits once given cannot be withdrawn in absence of any allegations of fraud and misrepresentation.
17. Consequently, Writ petition No.10329 of 2009 is allowed as prayed and Writ petition No.25695 of 2009 is dismissed.
18. However, the respondents shall be at liberty to decide the appeal filed by the fifth respondent afresh in accordance with law after notice to the petitioner and management of the school.
No costs.
Consequently, connected Mps are closed.
5-03-2013 sr Index:yes website:yes VINOD K. SHARMA, J., sr To
1.The Director of Elementary Education, College Road, Chennai-6
2. The Chief Educational Officer, Kanchipuram
3. The District Elementary Educational Officer, Kanchipuram
4. The Correspondent, St. Joseph Higher Secondary School, Tambaram, Chennai-59
5. District Educational Officer, Chengalpattu W.P.Nos.10329 and 25695 of 2009 05-03-2013