Madras High Court
Raja Aided Middle School vs –
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. (MD) No.9425/2022
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
Reserved on Pronounced on
21.02.2023 03.03.2023
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. (MD) NO.9425 OF 2022
AND
W.M.P. (MD) NOS. 6759, 6761 & 9413 OF 2022
Raja Aided Middle School
Vedichipalayam
Karur & District 639 114
Rep. by its Secretary &
Correspondent
Dr. M.Jawahar .. Petitioner
- Vs –
1. The Director of Elementary Education
DPI Campus, College Road
Chennai 600 006.
2. The Chief Educational Officer
Karur District, Karur.
3. The District Educational Officer
Karur Educational District, Karur.
4. The Block Educational Officer
Karur Block, Karur District. .. Respondents
1
https://www.mhc.tn.gov.in/judis
____________
W.P. (MD) No.9425/2022
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorari to call for the records relating to the
impugned order issued by the 2nd respondent in Na. Ka. No.5076/E1/2022 dated
28.04.2022 and quash the same.
For Petitioner : Mr. G.Sankaran, SC, for
M/s. F.Deepak
For Respondents : Mr. J.Ashok, AGP
ORDER
Assailing the impugned order passed by the 2nd respondent in and by which the 2nd respondent, while cancelling the appointment of Headmaster to the School further directed entrustment of the affairs of the petitioner school by appointing a Special Officer, the present writ petition has been filed.
2. The facts, as evidenced in the affidavit filed in support of the writ petition reveals that the petitioner-School is a Government Aided School established in the year 1933 and since then has been imparting quality education 2 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 to the rural poor and downtrodden children. The School originally established as a Primary School, was upgraded as Middle School in the year 1970.
3. It is the further case of the petitioner that upon a vacancy arising in the post of Middle School Headmaster due to the retirement of the incumbent in office on 1.6.2011, in consequence of the permission obtained from the department, the petitioner appointed one Tmt. K.Sujatha as Middle School Headmaster with effect from 2.9.2011 vide order of appointment dated 29.8.2011. It is the further case of the petitioner that in view of the non- availability of qualified hands with five years teaching experience in the post of B.T. Assistant available through Employment Exchange, after obtaining Non- availability Certificate, as prescribed under G.O. Ms. No.97, School Education Department dated 5.7.2001, the said Tmt. Sujatha was appointed as Headmaster.
4. It is the further case of the petitioner that proposal sent for approval of the said person to the post of Middle School Headmaster was returned by the Director of Elementary Education vide communication dated 26.6.2012 quoting a similar case of one Tmt. G.Metilda Viji, which was also rejected by the 3 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 Department. It is the further case of the petitioner that against the said order, W.P. (MD) No.14735/2012 was filed by the petitioner and by quoting the order passed in the case of the said Tmt. J.Metilda Viji, and also the order passed in W.P. No.10832/2-013 dated 21.11.2013, this Court had directed the respondents therein to grant approval of her appointment.
5. Aggrieved by the said order, the writ appeal in W.A. (MD) No.1119/2014 filed by the Department, the said writ appeal was allowed by the Division Bench by setting aside the order passed by the learned single Judge in the impugned order therein, on recording the submission of the learned Special Government Pleader that till the said Sujatha achieves the requisite experience, viz., completes five years of service as B.T. Assistant, though she holds the post of Headmaster, she will be entitled to draw salary as that of B.T. Assistant and only thereafter, she may be permitted to draw the salary of the post of Headmaster.
6. It is the further case of the petitioner that pursuant to the said order passed by the Division Bench, vide order dated 13.7.2015, the District Elementary Educational Officer, Karur, issued orders approving the appointment of the said 4 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 Tmt.K.Sujatha in the post of Middle School Headmaster on condition that she should be given salary in the post of B.T. Assistant for a period of three years from 2.9.2011 to 1.9.2014 and, thereafter, she will be eligible for getting the scale of pay applicable to Middle School Headmaster with effect from 2.9.2014.
7. It is the further case of the petitioner that such being the position, after several years, the 3rd respondent, vide notice dated 23.3.2022, citing an audit objection with respect to the appointment of Tmt. K.Sujatha as Headmaster of the School premising that she was granted salary for the post of Middle School Headmaster on promotion from the date of promotion from the post of B.T. Assistant.
8. Reply was submitted by the petitioner to the said show cause notice pointing out the orders passed by this Court in the writ petition and writ appeal and the consequential order of the District Elementary Educational Officer, Karur and further requested for providing a copy of the audit report so as to enable the petitioner to file suitable reply and also settle the objections pointed out in the audit.
5 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
9. It is the further case of the petitioner that out of the blue, the impugned order was passed by the 2nd respondent premising that the appointment of K.Sujatha is contrary to the rules and that the salary paid to the teacher for the service rendered by her from 2.9.2011 is objectionable and further ordered direct payment against the School u/r 19 Annexure-III of the Tamil Nadu Recognized Private Schools (Regulation) Rules and the 4th respondent was appointed as Special Officer of the School from 28.4.2022.
10. It is the further stand of the petitioner that inspite of the orders of this Court in the earlier round of litigation, more especially W.A. (MD) No.1119/2014, where approval of appointment of K.Sujatha was ordered, which resulted in the consequential order passed by the District Elementary Educational Officer dated 13.7.2015, the order of the 2nd respondent in contravention of the said order is not only contemptuous but the order of direct payment is also against the interim of stay granted by this Court in W.P. (MD) No.5659/2016, which was granted by this Court against imposition of the order of direct payment passed by the 3 rd respondent. Therefore, the present petition has been filed for enforcement of 6 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 the earlier orders and for setting aside the present order passed by the 2nd respondent, which is arbitrary, ex-facie illegal and unsustainable.
11. Learned senior counsel appearing for the petitioner assails the order of the 2nd respondent by submitting that the said order is ex-facie illegal, as it is in total contravention and against the orders of this Court in W.P. (MD) No. 14735/2012 and W.A. (MD) No.1119/2014.
12. It is the further submission of the learned senior counsel that the order of the 2nd respondent ordering direct payment is in violation of the interim order granted by this Court in W.P. (MD) No.5659/2016. It is the further submission of the learned counsel that the order of direct payment on the allegation that the appointment of K.Sujatha as Headmaster is not in consonance with the rules is wholly impermissible as the appointment has not only been approved by the District Elementary Educational Officer, but the same has been done under the seal of this Court in the earlier round of litigation. That being the case, it is the submission of the learned senior counsel that the impugned order of the 2 nd 7 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 respondent being in direct contrast with the orders of the Division Bench, necessarily, on the sole ground the impugned order deserves to be struck down.
13. It is the further submission of the learned senior counsel that the order of direct payment issued by the 2nd respondent is not only in violation of the orders of this Court, but is contrary to the records and is in violation of the principles of audi alterem partem, the petitioner not having been granted an opportunity of hearing before passing of the said order. It is the further submission of the learned senior counsel that even the copy of the audit objections, which forms the basis for ordering direct payment, has not been provided to the petitioner, which also violates the principles of natural justice.
14. It is the further submission of the learned senior counsel that appointment of Special Officer is contemplated only in the event of eventualities provided for u/s 18 (A) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 (for short ‘the Act’). However, in the present case, none of the eventualities contemplated in the aforesaid provision stands attracted and, therefore, the order relating to direct payment is not only bad with reference to 8 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 the provisions of the Act, but is also against the interim orders passed by this Court and, therefore, the same requires interference at the hands of this Court.
15. Per contra, learned Addl. Government Pleader appearing for the respondents submitted that the order in W.A. (MD) No.1119/14 premised the completion of five years of qualifying service for K.Sujatha from 2.9.2011 to 1.9.2014 to an extent of three years after having been informed that she had already put in a service of two years as B.T. Assistant. However, the records pertaining to the said K.Sujatha reveal that the said individual was appointed in the year 1999 and rendered service from 1.6.1999 to 31.5.2001 as B.T. Assistant, which service of two years was also taken into consideration for the purpose of computing the five year period. It is the further submission of the learned Addl. Government Pleader that though five year computation is made in the above manner, however, it is evidenced by record that from 1.6.1999 to 31.5.2001, the two years period of service of K.Sujatha was a service during which time she was not a trained teacher, as she had obtained her B.Ed., degree only in the year 2009 and, therefore, the said service could not be taken as qualifying service for the purpose of Rule 15 (4) (d) of the Rules.
9 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
16. It is the further submission of the learned Addl. Government Pleader that the aforesaid factum of the non-qualifying service of the said Sujatha was not placed either before the learned single Judge in W.P. (MD) No.14735/12 or before the Division Bench in W.A. (MD) No.1119/14 resulting in an erroneous order being passed in contravention of the Rules. In effect, the petitioner had played fraud upon the Court by showing the qualifying service, though in actuality the said Sujatha had not rendered the requisite qualifying service for being considered for promotion to the post of Middle School Headmaster.
17. It is the further submission of the learned Addl. Government Pleader that the said teacher had been promoted as B.T. Assistant to the post of Middle School Headmistress with increase in pay by 3%, which is illegal. It is further pointed out by the learned Addl. Government Pleader that the audit wing had raised an objection that the said individual had been granted with Selection Grade Scale of Pay on 2.9.2014, though she is eligible for the salary of Headmaster only from 2.9.2014 and, therefore, she would not be eligible for 10 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 Selection Grade Scale of Pay on 2.9.2021, thereby, monetary loss has been caused to the exchequer.
18. It is the further submission of the learned Addl. Government Pleader that certain other lapses in the service of the said individual has also been pointed out by the audit department, which was the result of the show cause notice. It is the further submission of the learned Addl. Government Pleader that initially direct payment was ordered by the District Elementary Educational Officer for certain irregularities in not complying with the directions of the Department against which W.P. (MD) No.5659/16 was filed in which interim order has been granted and the writ petition is pending. However, inspite of the directions by the Department, the petitioner is continuing with the irregularities, which has resulted in the order of direct payment passed by the 2nd respondent. The direct payment passed by the District Elementary Educational Officer was the issue in which interim orders were granted. However, the present order is passed by the 2nd respondent on different set of facts and, therefore, the said interim order would in no way have a bearing on the present impugned order. 11 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
19. It is the further submission of the learned Addl. Government Pleader that rule mandates requirement of five years experience as B.T. Assistant and the said five years eligibility should be a trained service with all the requisite educational qualifications and even the Government Order, which has been the basis for approval of appointment mandates that there would be no relaxation insofar as educational qualification is concerned. Such being the case, the period between 1999 and 2001 being untrained service at which point of time, the said Sujatha was not in possession of the requisite trained service, the said service cannot form the basis for computing the qualifying period of five years. However, suppressing all the above, the petitioner had drawn higher pay in respect of the individual by misusing his capacity as Secretary and Correspondent of the School for the only reason that the said Sujatha is none other than the wife of the Secretary and Correspondent of the School. All the above aspects were taken into consideration by the 2nd respondent while passing the impugned order.
20. It is the further submission of the learned Addl. Government Pleader that there is no violation of principles of natural justice as show cause notice has been issued to the petitioner and consideration of the same has resulted in the 12 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 passing of the impugned order. Further, it is submitted that the order to recover the amount from the individual towards excess and erroneous payment has been ordered against the petitioner and the respondents are in no way connected with the said individual. In such circumstances, it is the duty of the petitioner to call upon the individual in accordance with law to recover the amount and he cannot, under the guise of violation of principles of natural justice, try to achieve something, which the petitioner otherwise could not achieve. Accordingly, the respondents pray for dismissal of the present petition.
21. This Court paid its undivided attention to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record and also the relevant documents to which this Court’s attention was drawn.
22. The whole genesis of the case of the petitioner stands on the order passed by this Court in W.A. (MD) No.1119/2014 through which the appointment of the individual was directed to be approved with a string attached thereto. For better appreciation, the relevant portion of the said order is quoted hereunder :- 13
https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 “13. When the matter came up for hearing, Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the appellants/respondents conceded that the respondent/writ petitioner may work in the post of B.T.Assistant, but however, shall not claim salary for the post of Headmaster, until she acquired five years of teaching experience, as B.T.Assistant.
14. Learned counsel for the respondent/petitioner submitted that on completion of five years of teaching experience, a direction can be issued to the Management, to consider the case of the petitioner for promotion to the post of Headmaster, as per the provisions of the Tamil Nadu Recognised Private School (Regulation) Act, 1973 and the rules made thereunder.
15. Recording the above said submission, the Writ Appeal is allowed and the order, dated 15.04.2014 made in W.P.(MD).No. 14375 of 2012 is set aside. The respondent shall work as B.T.Assistant and she shall not claim salary for the post of Headmaster. Management also shall not claim salary for the post of Headmaster. After completion of five years in the post of B.T.Assistant, a direction is 11 issued to consider the case of the petitioner for promotion to the said post, in accordance with the statutory provisions.
16. Perusal of the impugned order made in W.P.(MD).No. 14375 of 2012 shows that approval of appointment of Smt.Sujata by the respondent/petitioner, as Headmaster of the School has been declined only on the ground that the said Sujatha had not 14 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 fulfilled the statutory eligibility, namely, five years of teaching experience in the post of B.T.Assistant, for being appointed as Headmaster of Middle School. Excepting the above, there is no other reason for not approving the appointment of said Sujatha appointed by the respondent/petitioner. Thus, it is not the case of the appellants/official respondents that said Sujatha appointed by the respondent/petitioner did not possess B.T. Assistant qualification. It is not open to the appellants to contend that the said Sujatha has not even qualified to be appointed as B.T. Assistant. The appellants are directed to approve the appointment of the Sujatha appointed by the respondent/petitioner, as B.T.Assistant, subject to the requirement under law. The said exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P(MD)No.1 of 2014 is closed.”
23. A careful perusal of the above order reveals that a finding has been rendered by the Division Bench to the effect that the individual had not fulfilled the statutory eligibility of five years of teaching experience in the post of B.T. Assistant for being appointed as Headmaster of Middle School. 15 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
24. There is no quarrel with the fact that for promotion to the post of Headmaster, the following qualifications are prescribed, while for the post of B.T. Assistant, the following qualifications are prescribed u/s 15 :-
Headmaster :
i) B.A. or B.Sc., or its equivalent and B.Ed. or B.T. or L.T. and Trained Teachers Certificate of Collegiate Grade.
ii) Should have worked as teacher in recognized schools for a period of not less than five years after obtaining B.T. or its equivalent degree.
B.T.Assistant :
B.A. or B.Sc. or its equivalent and B.T. or B.Ed. or L.T. and Trained Teachers Certificate to Collegiate Grade.
25. From the above, it is clear that even for holding the post of B.T. Assistant, an individual should be possessed of B.T. or B.Ed. or L.T. degree along with Trained Teachers Certificate. For further promotion to the post of Headmaster, an individual, who is holding the post of B.T. Assistant, in addition to the aforesaid educational qualification, should have worked as a teacher for a period of not less than five years after obtaining B.T. or its equivalent degree. 16 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
26. In the aforesaid backdrop, a perusal of the order of the Division Bench reveals that the period of working of Tmt. Sujatha as B.T. Assistant during 1999-2001 was taken into consideration and on the crucial date, when the post of Headmaster fell vacant, as there was no other person available, Tmt.Sujatha was promoted as Headmaster and approval of the appointment was sought for, which was rejected, which was challenged before the writ court successfully resulting in the intra court appeal before the Division Bench.
27. However, a careful perusal of the order of the Division Bench shows that the said order is silent as to the qualification of the said individual, viz., Tmt.Sujatha during the year 1999 – 2001, more particularly between 1.6.1999 and 31.5.2001. The above said period of two years was taken into consideration by the Division Bench to compute the service and, therefore from 2.9.2011 till 1.9.2014, for a period of three years, the said individual, viz., Tmt.Sujatha, was directed to discharge the work of B.T. Assistant so as to fulfill the requirement of qualification, though during the said period the said individual may be functioning as the Headmaster and the individual, while performing the works of B.T. Assistant was permitted to payment of salary as that of B.T. Assistant. 17 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
28. In the aforesaid scenario, G.O. Ms. No.97,. School Education Department dated 5.7.2001, on which much reliance is placed by the learned senior counsel for the petitioner as also the Division Bench to give relaxation, requires to be looked into and for better appreciation, the relevant portion of the Government Order is extracted hereunder :-
@3/ nkw;fz;l bjhlf;ff; fy;tp ,af;Fehpd;
fUj;jpid muR ed;F ghprPypj;jJ md;gog;gilapy;
(i) ,dptUk; fhy';fspy; cjtpbgWk; bjhlf;f
kw;Wk; eLepiyg; gs;spfspy; jiyik Mrphpah;
fhypg;gzpaplj;jpy; epakdk; bra;ag;gLk; nghJ
gzpK:g;g[ mog;gilapy; ,ju jFjpfs; midj;Jk;
epiwt[ bra;jpUg;gpd; mth;fs; Kd;dnu bgw;wpUf;Fk;
Kd; mDgtj;ij fzf;fpy; bfhz;L gjtp cah;tpid
Vw;gspf;fyhk; vd;Wk; mg;go gzpK:g;g[ mog;gilapy;
mnj gs;spapypUe;J jFjpg;bgw;w xUth; jiyik
Mrphpauhf epakdk; bra;ag;gLk;nghJ Ie;jhz;Lfs;
Kd; mDgtk; ,Uf;fntz;Lk; vd;w tpjpia
jsh;j;jpa[k;/
(ii) bjhlf;fg; gs;spfspy; jiyik Mrphpah;fshf
epakdk; bra;ag;gLgth;fs; 5 Mz;Lfs; gzp Kd;
mDgtk; bgw;wpUf;f ntz;Lk; vd;w tpjpia
(mDgtk; cs;sth; fpilf;fhtpl;lhy;) jsh;j;jpa[k;/ 18 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
(iii) eLepiyg; gs;spfspy; gp/o/ gl;ljhhp kw;Wk;
jkpHhrphpah; ehLeh;fs; ,ilepiy Mrphpag; gzp Kd;
mDgtj;Jld; fpilg;gJ fodk; vd;gjhy; mth;fs;
ntiytha;g;gfj;jpy; ehLeh; ,d;ik rhd;W (Non
availability Certificate) bgw;w gpd; neuo epakdk;
bra;ag;gLk; nghJk; gzp Kd; mDgtk; njit
vd;Dk; tpjpapid jsh;j;jpa[k; muR MizapLfpwJ/
(iv) ,t;thwhd neh;t[fspy; gs;spapy; cs;s
Mrphpah;fSf;F Kd;Dhpik mspf;fg;gl ntz;Lbkd
muR MizpapLfpwJ/ mjd;gpwnf ntiyahg;gfk;
kw;Wk; gpw neuo epakd';fs; K:yk; Mrphpah;fs;
epakdk; bra;ag;glntz;Lk;/
4. ,J Fwpj;J jkpH;ehL jdpahh; gs;spfs;
(xG';fKiw) gs;sp tpjpfspy; jf;f jpUj;j';fis
(Exemption Provision) bra;a bjhlf;f fy;tp ,af;Feh;
muRf;F fUj;JU mDg;g[khW nfl;Lf;
bfhs;sg;gLfpwhh;@/
29. A careful perusal of the aforesaid Government Order reveals that while the Government had given relaxation insofar as previous experience in the post of B.T. Assistant is concerned, however, the Government had not granted relaxation with regard to educational qualifications, meaning thereby, that insofar as the persons, who are possessed of the requisite educational 19 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 qualifications and in the absence of availability of persons in the locality to which end a certificate must be issued by the employment exchange as to the non- availability of requisite persons, relaxation with regard to previous experience was permitted to be granted.
30. Though the Government Order has clearly spelt out the relaxation which is permissible for promotion of a B.T. Assistant to the post of Headmaster, however, the aforesaid factum was not properly projected before the Division Bench even by the learned Special Government Pleader, who had merely stated that on completion of the balance service as B.T. Assistant, the said individual would be approved as Headmaster. However, the fact remains that the Government Order in G.O. Ms. No.97, School Education Department, dated 5.7.2001, had given relaxation only with regard to previous experience but was firm insofar as educational qualification is concerned and, therefore, there cannot be any concedement made on behalf of the Government by the Special Government Pleader. In the aforesaid scenario, without the relevant materials and merely on the conceding of the Special Government Pleader, the Division 20 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 Bench had gone on to give such a direction, which is against the tenor and requirement of the Rules.
31. It is the specific case of the respondents that the individual, viz., Tmt.Sujatha was not possessed of the mandatory five years experience as B.T. Assistant during all the points of time when she was alleged to have been in service. To this end, the respondents have averred before this Court that between 1.6.1999 and 31.5.2001, when the said individual was alleged to have been in service, she was not possessed of the qualification, viz., B./B.Ed./L.T. degree, as she had come into possession of B.T. qualification only in the year 2009. In the above circumstances, it is the stand of the respondents that the individual, who was not even possessed of even a short span of service with the requisite B.T. qualification, which fact was placed before the Division Bench and this has resulted in an erroneous being passed.
32. In the above backdrop, a careful perusal of the qualification prescribed u/r 15 reveals that a teacher should have worked in a recognized school for five years after obtaining B.T. or equivalent degree. The individual, who has been 21 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 appointed as a teacher between 1.6.1999 and 31.5.2001 having not been in possession of the requisite qualification, the said service could not be counted to be service fulfilling the requirements of Rule 15.
33. On the wrong presumption that the period of service between 1.6.1999 and 31.5.2001 by Tmt.Sujatha as B.T. Assistant was countable service, the Division Bench had erroneously come to the conclusion that the balance period of service from .9.2011 till 1.9.2014 would fulfil the requirement of the previous experience provided for u/r 15 is not only erroneous, but it is a fraud perpetrated by the petitioner on the Court before which the relevant facts and particulars were not placed resulting in an erroneous order. Had the above fact been placed before the Division Bench, definitely the Division Bench would not have proceeded to direct the authorities to approve the appointment of Tmt.Sujatha. Further, the petitioner has nowhere whispered that Tmt.Sujatha was possessed of B.T. Degree even during the year 1999, which merely shows that the petitioner had accepted the stand of the respondents with regard to the educational qualification of Tmt.Sujatha during the year 1999 to 2001. 22 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
34. It is more relevant to point out that the petitioner had not, at any point of time, placed the requisite educational of Tmt.Sujatha and in fact it is the specific case of the respondents that the educational qualifications of the individual have not been placed before the Department and approval of her appointment obtained. Further, it is to be pointed out that when the period of service between 1.6.1999 and 31.5.2001 could in no way be taken to be countable service, as the said Sujatha was not possessed of the basic qualification, the said individual cannot be granted the relief of holding the post of B.T. Assistant for three more years by drawing the salary of B.T. Assistant, while being promoted as Headmaster, whereinafter, the said Sujatha would be entitled to draw the pay of Headmaster, at which point of time as well the said Sujatha would not be entitled to the said pay, as she would not have completed the requisite five years of experience as B.T. Assistant after obtaining the B.T. or equivalent degree.
35. The Government, with due diligence, while issuing the aforesaid Government Order, had clearly not relaxed the qualification, as otherwise the quality of education would stand eroded, thereby, imparting quality education to 23 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 future generations would be jeopardized. However, the Secretary and Correspondent of the petitioner School had not only taken the Department for a ride by inducting his own wife as B.T. Assistant, who was not even possessed of the requisite educational qualification, but had even shielded the eyes of this Court by not placing the relevant facts, thereby hiding the truth and obtaining favourable orders and has the temerity to come before this Court and complain that the respondents have committed contempt in not obeying with the directions issued by the Division Bench.
36. Normally judicial decorum warrants this Court to follow the decision of a larger Bench, but if the said order has been an erroneous order obtained by fraud and deception, this Court definitely has power to correct the wrong committed. In this regard, useful reference can be had to the decision of the Apex Court in State of Orissa & Anr. – Vs – Mamata Mohanty (2011 (3) SCC 436), wherein, in respect of a wrong order passed, the Supreme Court has held as under :-
“56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have 24 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr v. Jagjit Singh & Anr., AIR 1995 SC 705; Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors., AIR 2003 SC 1241; M/s Anand Buttons Ltd. etc. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors., (2008) 9 SCC 24; Upendra Narayan Singh (supra);and Union of India & Anr. v. Kartick Chandra Mondal & Anr., AIR 2010 SC 3455).
57. This principle also applies to judicial pronouncements.
Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. & Ors., AIR 1993 SC 1048 observed as under:
"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18:
`a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'".25
https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 (See also re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619; Nirmal Jeet Kaur v. State of M.P. & Anr., (2004) 7 SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR 2006 SC 2449).” (Emphasis Supplied)
37. When the said individual, Tmt. Sujatha, was not possessed of the requisite educational qualifications, the petitioner had not only drawn salary for her showing her as B.T. Assistant, but had even granted the higher pay, thereby, defrauding the exchequer. The erroneous and wrong order was the resultant act of fraud played by the petitioner on the Court and in this regard, it has been the consistent view of this Court that if a person approaches the Court with unclean hands, the said person is not entitled to any benefit from this Court. To the limited extent, the order passed in the previous round of litigation is the off-shoot of an error, which was the result of the seed sown by the petitioner, definitely, this Court is entitled to correct the error, which had been forced on account of the fraud played by the petitioner.
26 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
38. Insofar as the second contention with regard to direct payment is concerned, the present case is not only a glaring act of fraud perpetrated by the petitioner, but it shocks the judicial conscience to such an extent that the second limb of the allegation with regard to the petitioner school not being run properly and it run in utter derogation of the directions issued by the Department cannot be ruled out.
39. Though the petitioner places the case on Section 18-A of the Act to prevail upon this Court that the eventualities contemplated under the aforesaid provision have not arisen, but for better appreciation, the relevant provision is extracted :-
“18- A. (1) (A) where the Government, on receipt of a report from the Director or otherwise, are satisfied that the management of any private school:-
(i) is responsible, whether on or after the date of commencement of the Tamil Nadu Recognised Private School (Regulation) and Private Colleges (Regulation) Amendment Act, 1982, for the mal administration, lapses or irregularities of such private school; or
(ii) has neglected whether on or after the date of commencement of the Tamil Nadu Recognised Private Schools 27 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 (Regulation) and Private Colleges (Regulation) amendment Act, 1982 to discharge any of the duties imposed or to perform any of the functions entrusted to such management by or under this Act, or any rule or order made or direction issued thereunder, the Government may, after giving to such management an opportunity to make representation and for reasons to be recorded in writing, by an order suspend the management and appoint a special officer for a period not exceeding one year or till the reconstitution of the management( in accordance with the law applicable to the reconstitution of such management), whichever is later:
Provided that in no case the maximum period of such suspension of management shall exceed two years irrespective of the reconstitution of the management in accordance with the law applicable to the reconstitution of such management:
Provided further that where, the management of any minority school is suspended, the Government shall appoint a special officer belonging to that minority which has been administering the said minority school immediately proceeding such suspension.
(iii) The special officer to be appointed under sub section (ii) shall be a District Educational officer in respect of High and Higher Secondary Schools. The authority competent to accord approval wherever necessary as contemplated in these rules on matters arising from the orders of the Special Officer shall be the Chief Educational Officer in whose jurisdiction such school lies (ii) shall be the District Elementary Educational Officer of the District in the 28 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 case of primary and middle schools. The authority competent to accord approval wherever necessary as contemplated in these rules, shall be a Deputy Director of Elementary Education nominated by the Director of Elementary Education for the purpose.
(iv) (b) On the making of an order under clause (a), suspending the management of a private school:-
(i) the management shall cease to discharge the duties imposed on, and to perform the functions entrusted to it; and
(ii) the special officer-
(A) shall take all such steps as may be necessary to efficiently manage and run the private school in accordance with any law applicable to the private school in so far as such law is not inconsistent with this Act; and (B) may afford such special educational facilities as were immediately before the making of the order under clause (a), afforded at the private school.
Explanation:- In item (A) of sub-clause (ii) of clause (b), the expression “law” includes any byelaw, rules, regulation, custom, usage or instrument having the force of law.
(C) where the Government are satisfied that the manager alone, is whether on or after the date of commencement of the Tamil Nadu Recognised Private Schools (regulation) and Private Colleges (Regulation) Amendment Act, 1982, responsible for the lapses or irregularities of the private school, action shall be taken 29 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 against him by the management, as recommended by the Government.
(2) The Government may, for reasons to be recorded in writing, by an order declare a person to be unfit to be the manager of private school after giving to such person an opportunity of making his representation against such declaration and under intimation to the management and on such declaration, the person aforesaid shall cease to be the manager of the private school, shall nominate another person as a manager in his place.
(3) For the removal of doubts it is hereby declared that any willful failure or wilful negligence on the part of a management to take action against the manager as required under clause (c) of subsection (1) or to nominate another person as manager under subsection (2) shall constitute an act of maladministration and action shall be taken against the management of private school under this Act accordingly.
Explanation:- For the purpose of this Chapter2.
“management” includes the school committee or any person, body of persons, committee or any other governing body, by whatever name called, in whom the power to manage or administer the affairs of a private school is vested:
Provided that the Board of Trustees, or the governing body of Wakf Board, by whatever name called, constituted or appointed under any other law for the time being in force relating to the charitable and religious institutions and endowments and wakfs, 30 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022 shall be deemed to be a management for the purposes of this Chapter;
(3) “manager” means the secretary, or any person holding office as president, manager or correspondent of a private school, who is managing or administering the affairs of such private school;
(4) “private school” includes minority school. (5) Sub-sections (1) and (2) shall apply to a minority school, in so far as they are not repugnant to clause (1) of Article 30 of the Constitution.”
40. Though the petitioner contends that the eventualities contemplated u/s 18-A have not arisen and, therefore, the respondents are not right in placing the school under direct payment system, however, a careful perusal of the above provision reveals that sub-clause (i) of sub-section 1(a) of Section 18-A stands squarely attracted, which provides that where mal-administration and lapses on the running of the school are noticed, the competent authority is permitted to appoint a Special Officer to run and school and also bring the school under direct payment.
31 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
41. The act of the petitioner in playing fraud on the respondents by not disclosing the details of Tmt. Sujatha with regard to her educational qualifications and receiving the amount as payment towards salary, thereby enriching itself, as the said Sujatha is none other than the wife of the Secretary and Correspondent of the School would clearly show that there is not only mal-administration and lapse on the part of the school with regard receipt of the grant-in-aid, but also continuing the fraud by coming before this Court with unclean hands and obtaining orders clearly shows the devious mind of the petitioner and its scant respect to the rule of law, which definitely warrants such an order.
42. Insofar as the contention of the petitioner that already an order of interim injunction has been granted in favour of the school in W.P. (MD) No. 5659/2019 in and by which direct payment ordered by the District Elementary Education Officer was stayed and, therefore, the present order of the 2nd respondent is opposed to the said order and is an act of contempt, however, such a submission pales into insignificance on account of two counts. 32 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
43. Firstly, the said order was passed as against a proceeding of the District Elementary Education Officer for certain malpractices, whereas the present order has been passed by the 2nd respondent, who was not a party to the said writ. That being the case, the act of the 2nd respondent in passing the present impugned order could not be said to be an act in contempt of court.
44. Secondly, the present order has been passed on allegations, which have been borne out by record, as pointed out by the respondents and which speaks for itself, which has not been refuted by the petitioner and the order obtained by the petitioner in the earlier round of litigation being a fraud played upon the Court, the petitioner having come before this Court with unclean hands, the petitioner is definitely not only entitled to the benefit of the said order, but the present order being based on facts and materials, the order passed on the materials in the other case would not come in the way of the respondents to pass the present order in the interest of proper administration of the school and also keeping in mind the welfare and education of the children of the school. 33 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
45. Though an additional affidavit has been filed by the petitioner to the effect that the excess pay drawn by the said Sujatha would be recovered and repaid back to the Government and certain other admissions have also been made in the said affidavit with regard to the period during which the said Sujatha was possessed of the requisite educational qualifications, however, this Court is not inclined to go into the same, as a petitioner, who has come to Court with unclean hands and at the fag end of the day, sensing that the case would go against him, pleads mercy at the hands of this Court, the Court cannot be a mute spectator and be a silent partner in crime by allowing the petitioner to go scot- free for the contemptuous acts committed by him. Therefore, the said affidavit is taken on file only to be rejected.
46. For the reasons aforesaid, this Court is of the considered view that the order impugned in the present writ petition does not suffer the vice of illegality, arbitrariness and perversity and the said order is wholly sustainable and does not require any interference at the hands of this Court.
34 https://www.mhc.tn.gov.in/judis ____________ W.P. (MD) No.9425/2022
47. Accordingly, the present writ petition fails and the same is dismissed. Interim order already granted by this Court stands vacated and W.M.P. (MD) No. 9413/22 is allowed. W.M.P. (MD) No.6759/2022 is allowed dispensing with the production of the original copy of the impugned order and W.M.P. (MD) No. 6761/2022 is dismissed. In the circumstances of the case, there shall be no order as to costs.
03.03.2023
Index : Yes / No
GLN
To
1. The Director of Elementary Education
DPI Campus, College Road
Chennai 600 006.
2. The Chief Educational Officer
Karur District, Karur.
3. The District Educational Officer
Karur Educational District, Karur.
4. The Block Educational Officer
Karur Block, Karur District.
35
https://www.mhc.tn.gov.in/judis
____________
W.P. (MD) No.9425/2022
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. (MD) NO.9425 OF 2022
Pronounced on
03.03.2023
36
https://www.mhc.tn.gov.in/judis