Madras High Court
The Director Of School Education vs S.Vanitha on 22 April, 2016
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 22.04.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)Nos.828 of 2014 and 129 to 132 of 2015
and
M.P.(MD)Nos.1 & 2 of 2014 in W.A.(MD)No.828 of 2014
and
M.P.(MD)No.1 of 2014 in W.A.(MD)Nos.129 to 132 of 2015
W.A.(MD)No.828 of 2014:
1.The Director of School Education,
College Road, Chennai-6.
2.The Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Paramakudi-623 707,
Ramanathapuram District. .... Appellants/
Respondents 1 to 3
vs.
1.S.Vanitha .... Respondent-1/
Petitioner
2.The Chairman,
TELC Education Board,
Tranqubar House,
Tiruchirapalli-620 001.
3.The Correspondent,
T.E.L.C.High School,
Mudukulathur-623 704,
Ramanathapuram District. ... Respondents 2&3/
Respondents 4 and 5
W.A.(MD)No.129 of 2015:
1.The Director of School Education,
College Road, Chennai-6.
2.The Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Ramanathapuram,
Ramanathapuram District. .... Appellants/
Respondents 1 to 3
vs.
1.C.Selvamary .... Respondent-1/
Petitioner
2.The Correspondent,
St.Francis Higher Secondary School,
C.K.Mangalam,
Ramanathapuram-623 504. ... Respondent 2/
Respondent-4
W.A.(MD)No.130 of 2015:
1.The Director of School Education,
College Road, Chennai-6.
2.The Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Ramanathapuram,
Ramanathapuram District. .... Appellants/
Respondents 1 to 3
vs.
1.R.Balan .... Respondent-1/
Petitioner
2.The Correspondent,
St.Francis Higher Secondary School,
C.K.Mangalam,
Ramanathapuram-623 504. ... Respondent 2/
Respondent-4
W.A.(MD)No.131 of 2015:
1.The Director of School Education,
College Road, Chennai-6.
2.The Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Ramanathapuram,
Ramanathapuram District. .... Appellants/
Respondents 1 to 3
vs.
1.S.Juliamary .... Respondent-1/
Petitioner
2.The Correspondent,
St.Francis Higher Secondary School,
C.K.Mangalam,
Ramanathapuram-623 504. ... Respondent 2/
Respondent-4
W.A.(MD)No.132 of 2015:
1.The Director of School Education,
College Road, Chennai-6.
2.The Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Ramanathapuram,
Ramanathapuram District. .... Appellants/
Respondents 1 to 3
vs.
1.M.Ramajayam .... Respondent-1/
Petitioner
2.The Correspondent,
Columbu Alim Memorial High School,
Ramanathapuram-623 504. ... Respondent 2/
Respondent-4
W.A.(MD)No.828 of 2014:
Appeal filed under Clause 15 of Letters Patent, against the order
made in W.P(MD)No.8535 of 2008, dated 09.01.2014.
W.A.(MD)No.129 of 2015:
Appeal filed under Clause 15 of Letters Patent, against the order
made in W.P(MD)No.6726 of 2014, dated 25.08.2014.
W.A.(MD)No.130 of 2015:
Appeal filed under Clause 15 of Letters Patent, against the order
made in W.P(MD)No.6725 of 2014, dated 25.08.2014.
W.A.(MD)No.131 of 2015:
Appeal filed under Clause 15 of Letters Patent, against the order
made in W.P(MD)No.6727 of 2014, dated 25.08.2014.
W.A.(MD)No.132 of 2015:
Appeal filed under Clause 15 of Letters Patent, against the order
made in W.P(MD)No.954 of 2014, dated 25.08.2014.
!For Appellants : Mr.V.R.Shanmuganathan,
in all the WAs Spl.Govt.Pleader.
^For Respondent-1 : Mr.Isaac Mohanlal
In all the WAs
:COMMON JUDGMENT
(Delivered by Mr.Justice S.MANIKUMAR) Since the issue involved in all these writ appeals is one and the same, they are disposed of by this common judgment, though arguments were heard on different dates.
2.The common issue involved in these writ appeals is whether the first respondents/writ petitioners are entitled for approval of their appointments as B.T.Assistants from the date of their initial appointment or from a subsequent date, namely from the date on which permission was granted by the appellants, for the conversion posts.
3.Short facts, necessary for the disposal of these writ appeals, are as follows:
(a)First respondents in all these writ appeals were appointed as B.T.Assistants in various subjects, in the respective 2nd/3rd respondents schools, on different dates, in the Secondary Grade Teacher Posts, which fell vacant pursuant to the retirement/ voluntary retirement/promotion of the present incumbent. When the School Managements sent proposals for approval of their appointments, along with a request for post-conversion, from the date of their appointment, approval was granted with effect from a later date, namely, from the date on which post-conversion was permitted and not from the date of appointment.
(b)The details with regard to appointment and post conversion, in respect of the first respondents/writ petitioners, are set out in a tabular column as under:
R-1 in W.A. Date of Appointment Post in which appointed Post from which conversion sought for Approval/Conversion granted with effect from 828/2014 15.06.2006 B.T.Assistant (Science) B.T.Assistant (Maths)
04.07.2008 129/2015 28.06.2010 B.T.Assistant (History) B.T.Assistant (Maths) 25.11.2011 130/2015 28.06.2010 B.T.Assistant (Maths) Secondary Grade Teacher (Vacant) 28.03.2011 131/2015 08.02.2010 B.T.Assistant (English) Secondary Grade Teacher (Vacant) 15.03.2011 132/2015 20.01.2010 B.T.Assistant (English) Secondary Grade Teacher (Vacant) 01.12.2010
(c)Aggrieved by the orders of the appellants/educational authorities, approving the appointment of respondent No.1 in the writ appeals from the date on which permission for post conversion was granted and not from the date of their appointments, respondent No.1 in all the writ appeals filed separate writ petitions challenging the orders of the educational authorities. Those writ petitions were allowed by learned Single Judges. Orders passed in one of the writ petitions, namely in W.P.(MD)No.954 of 2014, dated 25.08.2014, against which W.A.(MD)No.132 of 2015 has been filed, reads as under:
"The petitioner was appointed by the fourth respondent as a B.T. Assistant in English, vide appointment order dated 20 January, 2010. The vacancy has arisen on account of the retirement of a Secondary Grade Teacher on 31 December, 2009.
2.The appointment of the petitioner as a Graduate Teacher against the post of Secondary Grade Teacher was made in accordance with the Government Order in G.O.Ms.No.79, School Education (U1) Department, dated 14 June, 2002. The fourth respondent, after the appointment of petitioner, submitted a proposal to approve her appointment as B.T. Assistant in English. In the meantime, the second respondent granted permission to the fourth respondent to convert the post into B.T. Assistant in English, subject to certain conditions, vide proceedings dated 30 November, 2010. The fourth respondent, pursuant to the proceedings dated 30 November, 2010, issued a fresh appointment order to the petitioner on 30 November, 2010. The petitioner was denied her past service from 20 January, 2010 to 29 November, 2010, on account of the proceedings of the second respondent dated 30 November, 2010 and the subsequent appointment order dated 30 November, 2010. This made the petitioner to challenge the proceedings dated 30 November, 2010, on the file of the Chief Educational Officer, permitting conversion with effect from 30 November, 2010.
3.The third respondent filed a counter-affidavit, wherein it was contended that only after the appointment of the petitioner, proposal was submitted to the Education Department for conversion. The order for conversion of Secondary Grade Teacher post to B.T. Assistant post was made with effect from 30 November, 2010. The petitioner was appointed only thereafter and as such, there is no question of taking into account the earlier service.
4.I have heard the learned counsel for the petitioner and the learned Government Advocate appearing on behalf of respondents 1 to 3.
5.There is no dispute that originally there was a post of Secondary Grade Teacher at Columbu Alim Memorial High School, Ramanathapuram. The Management appointed Thiru.K.Sethuramu, as a teacher and on attaining the age of superannuation, he retired on 31 December, 2009. It was only in the said vacancy, the petitioner was appointed on 20 January, 2010. It is also not in dispute that the order of conversion was made only subsequently. The subsequent appointment order dated 30 November, 2010, was issued only to comply with the proceedings of the Chief Educational Officer dated 30 November, 2010. However, the fact remains that the petitioner has been working right from 20 January, 2010. The fresh appointment order given on 30 November, 2010 would not go to show that the petitioner was appointed for the first time, notwithstanding the fact that her appointment was made as early as on 20 January, 2010. The conversion of the post was made in accordance with the Government Order in G.O.Ms.No.144, School Education (D1) Department, dated 04 July, 2008. The Government Order was not in substitution of the Regulations/Rules. The appointment was made in accordance with the Tamil Nadu Recognized Private Schools (Regulation) Rules 1974. The Government have not amended the Tamil Nadu Recognized Private Schools (Regulation) Rules 1974, subsequent to the issuance of Government Order in G.O.Ms.No.144, School Education (D1) Department, dated 04 July, 2008. The petitioner, having worked as B.T. Assistant right from 20 January, 2010, is entitled to recognise her past service even after the conversion of post.
6.The order passed by the Chief Educational Officer permitting conversion should relate back to the date of appointment of the petitioner. Since the post of Secondary Grade Teacher was available for appointment in the school in question and the conversion was only the said post, necessarily the earlier appointment should be recognized by the second respondent and more particularly, on account of the fact that it was a sanctioned post. Therefore, I am of the view that the second respondent was not correct in imposing a condition that the subject conversion would take effect only from 30 November, 2010.
7.In the result, the impugned order is set aside and the matter is remitted to the second respondent for fresh consideration.
8.The second respondent is directed to pass appropriate orders deleting condition No.2 and making it clear that the order would be effective from 20 January, 2010, the date on which the petitioner was appointed to the post in question.
9.In the upshot, I allow the Writ Petition. Consequently, the connected miscellaneous petitions are closed. No costs."
4.Being aggrieved by the orders of the learned Single Judges, the educational Authorities are before this Court with the present writ appeals. Common grounds raised in the writ appeals are:
(i)The Writ Court ought to have considered that the Secondary Grade Teacher vacancy cannot be automatically upgraded as B.T.Assistant, as per G.O.Ms.No.144, School Education Department, dated 04.07.2008.
(ii)There cannot be automatic upgradation of a secondary grade teacher post as B.T.Assistant post, by the management itself and fix the subject of their choice and it is for the Director of School Education to consider the issue and order for conversion of a vacant post of secondary grade teacher into a B.T.Assistant and fix the subject.
(iii)As per G.O.Ms.No.100, Education Department, dated 27.06.2003, post of secondary grade teacher, fell vacant in standards 6 to 8, can be filled-up with a Graduate Teacher in the subject roster, namely Maths, Science and English. Therefore, appointment made in one subject against the vacancy meant for other subject, without following subject roster, cannot be approved.
5.G.O.Ms.No.79, School Education (U1) Department, dated 14.06.2002, enables appointment of B.Ed.qualified Middle Grade-Graduate Teachers in the posts of Secondary Grade Teachers in Standards 6, 7 and 8, as and when fall vacant due to superannuation of the incumbents or voluntary retirement or promotion or for any other reason, including posts vacant as on 01.06.2002. G.O.Ms.No.100, School Education (Budget) Department, dated 27.06.2003, was issued for appointing B.Ed.qualified Middle Grade-Graduate Teachers in the posts of Secondary Grade Teachers in Standards 6, 7 and 8, in consolidated pay. G.O.Ms.No.244, School Education (Va.Se.) Department, dated 22.09.2007, speaks of appointment of B.T.Assistants (Tamil). G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008, sets out certain guidelines in respect of appointments of Middle Grade-Graduate Teachers in the place of Secondary Grde Teachers, in Government Aided Schools.
6.Mr.Isaac Mohanlal, learned counsel appearing for the first respondents/writ petitioners, submitted that the issue involved in these writ appeals is no more res integra, as it has been decided by this Court, in a number of decisions, in favour of the teachers, holding that approval has to be granted only from the date of appointment and not from a later date, namely from the date on which permission for post conversion was granted. In support of his contention, Mr.Isaac Mohanlal, learned counsel, relied on the following decisions, which were followed by a learned Single Judge, while allowing W.P.(MD)No.8535 of 2008, dated 09.01.2014, against which W.A.(MD)No.828 of 2014 has been filed.
(i)2005 Writ L.R.515 - M.Sivakumar v. The Government of Tamil Nadu & 2 Others;
(ii)Unreported decision in W.P.No.19902 of 2008, dated 30.04.2009 - The Manager, RC Schools, Salem Diocese Society vs. The State of T.N. and three others;
(iii)Unreported decision in W.A.No.2058 of 2010, dated 21.03.2011 - The State of Tamil Nadu and three others vs. The Manager, RC Schools, Salem Diocese Society;
(iv)Unreported decision in Contempt Petition No.1443 of 2009, dated 22.06.2011 - The Manager, RC Schools, Salem Diocese Society vs. The State of T.N. and three others;
(v)(2012) 3 MLJ 678 - C.Wilson Sundar Raj v. Director of School Education.
7.In W.P.No.19902 of 2008, dated 30.04.2009, a learned Single Judge of this Court has passed the following order:
"1.The facts involved in this case are that the Petitioner Management sought for conversion from the post of PG Assistant History to PG Assistant English with effect from 3.9.2003, the date on which the concerned teacher was appointed; that the 2nd Respondent passed the impugned order partly allowing the claim of the Petitioner with effect from 09.12.2005 by order dated 13.12.2004 instead of 3.9.2003.
2.A similar issue came up before this court, which is reported in 2005- WLR-515 (M.Sivakumar vs. The Government of Tamil Nadu by Secretary, Education Department, Fort St.George, Chennai-9 and two others), in which paragraph 7 is relevant and the same is extracted as under:-
"7.A careful perusal of the impugned orders would show that no reasons have been assigned by the Respondents to order salary for the Petitioner only from 28.3.1996 when the Management has very clearly stated that he joined duty as PG Assistant on 25.10.1993 itself and is serving in the said capacity till date. But, neither the second Respondent in his order dated 28.3.1996 nor the third respondent in his order dated 18.3.1997 have considered this aspect so as to grant the approval as it has been sought for on the part of the Management nor any reason has been assigned for denying the salary to the Petitioner from 25.10.1993 to 27.3.1996 and granting the same only from 28.3.1996 in spite of the specific case of the school authorities that on the retirement of the erstwhile Headmaster Mr.S.Krishnamoorthy, who was also taking History classes for the Higher Secondary Sections, there was virtually no teacher to take the History Classes in the school and hence the Petitioner who was MA (History) B.Ed.ccandidate was appointed to cater to the needs of the school. Therefore, both orders passed by the Respondents 2 and 3, since being inconsistent ones, this Court has to cause its interference into the same and quash the same and grant the relief as sought for on the part of the Petitioner and hence, the following order:-
In result,
(i) the above Writ Petition succeeds and the same is allowed.
(ii) The order of the second respondent dated 28.3.1996 made in his K.Dis.No.47458/W6/95 and the consequential order of the third Respondent passed in his Na.Ka.No.1516/95/A1 dated 18.3.1997 are quashed.
(iii) The Respondents 2 and 3 are hereby directed to issue necessary orders granting approval of the Petitioners' appointment as PG Assistant (History) in Sri Kayilai Subramani Desiga Swamigal Higher Secondary School, Tirpanandal, Thanjavur District with effect from 25.10.1995 i.e. from the date of his appointment in the school, within sixty days from the date of receipt of a copy of this order. However, in the circumstances of the case, there shall be no order as to costs."
3.It is also not explained by the Respondents as to why they refused to approve the said conversion with effect from 3.9.2003, despite the admitted fact that the said teacher wa appointed to the said post on that date.
4.In view of the said reasons and following the said judgment, this impugned order is set aside, in so far as the case is adverse to the Petitioner is concerned and accordingly, this Writ Petition is ordered, directing the Respondents to disburse the arrears of salary to the concerned teacher within a period of twelve weeks from the dat of receipt of a copy of this order. No costs. Consequently, the connected MPs are closed."
8.Aggrieved by the above said order of the learned Single Judge, the Department filed appeal in W.A.No.2058 of 2010, a Hon'ble Division Bench of this Court, by judgment dated 21.03.2011, dismissed the writ appeal. The judgment of the Hon'ble Division Bench reads as follows:
"Aggrieved by the order of the learned single Judge in W.P.No.19902 of 2008, dated 10.04.2009, allowing the writ petition filed for conversion of the BT Assistant Post into English with effect from 3.9.2003 with all attendant benefits, the State along with its Subordinate Officers have come with the present appeal.
2.Learned Addl.Government Pleader appearing for the appellants submitted that when the respondent Management sought for conversion from the post of PG Assistant History to PG Assistant English with effect from 3.9.2003, the date on which the concerned teacher was appointed, the second appellant allowed the conversion sought for by the respondent with effect from 8.12.2005, instead of 3.9.2003 on the ground tht no prior permission of the Chief Educational Officer is sought for. Since the refusal on the part of the appellants is in accordance with G.O.Ms.No.285, Educational Department, dated 1.10.1999, the impugned order is liable to be set aside.
3.We have perused the materials on record. It is seen that one Thiru S.Sebastian, who served as B.T.Assistant (History) was promoted as PG Assistant with effect from 03.09.2003 and in the said post the appellant was appointed with effect from 03.09.2003. On the aforesaid factual scenario, the learned single Jude by relying on the earlier decision of this Court reported in 2005 - WLR - 515 (M.Sivakumar v. The Government of Tamil Nadu by Secretary, Education Department, Fort St.George, Chennai & 2 others) has set aside the order passed by the appellant. It is not the case of the appellants that the aforesaid decision is not applicable to the facts of the present case. Since the post fell vacant on 3.9.2003 and the respondent had appointed the concerned teacher on 3.9.2003, we do not see any illegality in the order passed by the learned single Judge and the appellants cannot resist the claim of the respondent on the ground that prior permission ought to have been sought for.
4.In view of the above, we do not see any reason to entertain the writ appeal, which is accordingly dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed."
9.After dismissal of the writ appeal, the order in W.P.No.19902 of 2008, dated 30.4.2009, has been complied with by the educational Authorities, as it is evident from the order passed in Contempt Petition No.1443 of 2009, dated 12.06.2009.
10.In C.Wilson Sundar Raj vs. Director of School Education, Chennai and others, reported in (2012) 3 MLJ 678, a learned Single Judge of this Court, following the judgment in (1) M.Sivakumar Case, (2) W.P.No.19902 of 2008, dated 30.04.2009, and (3)W.A.No.2058 of 2010, dated 21.03.2011, cited supra, has held as follows:
"12.A Perusal of the judgments, which are relied on by the learned counsel for the petitioner support his case for seeking approval of the post of P.G.Assistant (English) from the date of appointment of the petitioner namely on 19.01.1999 and get the salary and other attendant benefits instead of 19.03.2002 being the date of the order passed by the 1st respondent permitting the conversion. Once the 1st respondent granted permission to convert the post from P.G.Assistant (Tamil) into P.G.Assistant (English) at the 4th respondent school, such permission should take effect from the date of appointment of the petitioner, especially when the request for con"version of the post was made by the school based on the appointment of the petitioner on 19.1.1999.
13.It is also submitted that the 4th respondent School was sanctioned with two posts of P.G.Assistant (Tamil). Out of which, one P.G.Assistant (Tamil) is already working. Therefore, there is no monitory loss to the department also apart from the fact that the 4th respondent school had also given an undertaking to the 1st respondent that they will not claim the post of P.G.Assistant (Tamil) in future."
11.In view of the above consistent decisions of this Court on the issue, we are of the view that the issue is no more res integra. As rightly contended by the learned counsel for the 1st respondents/teachers, approval has to be granted only from the date of appointment and not from a later date, namely from the date on which permission for post conversion was granted.
12.Contention by the appellants that the returned proposals were not challenged by the management and hence it has to be treated as accepted and hence the teachers have no right to question the same cannot be accepted. It has to be seen that ultimately, it is the teachers who are affected. Therefore, even if the management has not taken up the cause, the aggrieved teacher has every reason to question the returned proposals. The educational authorities ought to have considered that the very object of the the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules made thereunder are to protect the interests of the teachers and students. Therefore, right of the teacher cannot be said to be extinguished. Power of the educational authorities to issue directions to fill-up the posts on conversion cannot be questioned. At the same time, the schools should be given latitude to fill-up the required posts. If Maths and other subject teachers are already working in a school, the management should have the right to fill up the posts with other subjects, if there is a need for filling up the posts with the required subjects.
13.In the light of the decision in W.A.No.2058 of 2010, dated 21.03.2011 and the discussions, all the writ appeals are dismissed. No order as to costs. Connected miscellaneous petitions are closed.
To
1.The Director of School Education, College Road, Chennai-6.
2.The Chief Educational Officer, Ramanathapuram, Ramanathapuram District.
3.The District Educational Officer, Paramakudi-623 707, Ramanathapuram District.
4.The District Educational Officer, Ramanathapuram, Ramanathapuram District..