Madras High Court
)The Director Of Elementary Education vs )G.Vijayalakmshmi on 14 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.07.2015
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)No.251 of 2015
M.P(MD)No.1 of 2015
1)The Director of Elementary Education,
College Road, Chennai-600 006.
2)The District Elementary Education Officer,
Ramanathapuram District.
3)The Assistant Elementary Educational Officer,
Paramakudi,
Ramanathapuram District. ... Appellants
Vs.
1)G.Vijayalakmshmi
2)Bharathiar Middle School,
Rep.by its Secretary and Correspondent,
Paramakudi,
Ramanathapuram District. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the order dated
08.12.2014 in W.P(MD)No.18040 of 2014.
!For Appellant : Mr.V.R.Shanmuganathan,
Special Government Pleader
^For Respondents : Mr.E.V.N.Siva
:JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J.) Challenge in this writ petition, is to an order made in W.P(MD)No.18040 of 2014, dated 08.12.2014, by which, a learned single Judge, while setting aside the order passed by the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, in Roc.No.1962/A3/2014 dated 29.09.2014 and the subsequent proceedings of the Director of Elementary Education, Chennai, the 1st appellant herein, in Roc.No.1962/A3/2014 dated 24.10.2014, directed the 1st appellant, to disburse the monthly salary of the petitioner from 11.06.2014 to 15.09.2014, and continuously thereafter.
2. Material on record discloses that the writ petitioner has been working as a Secondary Grade Teacher in Bharathiar Middle School, rep.by its Secretary and Correspondent, Paramakudi, Ramanathapuram District, the 2nd respondent herein, which is a recognised aided private school, governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder. Whileso, she applied for unearned leave, on private affairs from 11.06.2014 to 05.10.2014, for 117 days, to visit United States of America, to assist her daughter's delivery. The 2nd respondent school granted permission and intimated the leave sanctioned by them, to the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein. Before the expiry of the sanctioned leave period, the petitioner joined duty on 16.09.2014, by availing only 97 days leave. Joining report submitted to the 2nd respondent school, was also accepted by the school committee, but the salary from June 2014, onwards, was not paid to the petitioner. When the petitioner approached the Secretary and Correspondent of the 2nd respondent school, she was informed that the proposal for sanction of monthly grant/salary, had already been submitted to the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, and there was no response. Therefore, the petitioner submitted a detailed representation, to the respondents on 16.10.2104, requesting them to sanction salary from the month of June 2014 onwards. As there was no response, she was constrained to file W.P.(MD)No.17748 of 2014, for a direction to disburse the salary from June 2014 onwards. However, when the writ petition came up for hearing, the learned Government Advocate for the official respondents, submitted that request of the petitioner, to sanction salary from the month of June 2014 onwards, had already been rejected by the proceedings of the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein in Roc.No.1962/A3/2014, dated 24.10.2014. Thus the said proceedings came to be challenged in W.P(MD)No.18040 of 2014.
3. In the subsequent writ petition 18040/14, a detailed counter affidavit has been filed by the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, wherein, he has contended that the petitioner, working as a Secondary Grade Teacher in the 2nd respondent school, applied for unearned leave, from 11.06.2014 to 05.10.2014, for about 117 days, to visit United States of America. According to the official respondents, as per G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, if any teacher, working in a non minority aided school, wants to go abroad, he/she has to obtain prior permission from the Director of Elementary Education, Chennai, the 1st appellant herein. That apart, for getting a passport, the teacher has to obtain a no objection certificate, from the appointing authority, namely, the Director of Elementary Education, Chennai, the 1st appellant herein. In the present case, the petitioner had applied no objection certificate, to the 1st appellant and that the same was also granted on 30.05.2014. Communication to that effect was received by the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, on 13.06.2014. Thereafter, on receipt of the same, the writ petitioner should apply for sanction, to go abroad. But in the present case, even before receiving ?no objection certificate?, for getting a passport from the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, and even without applying for sanction of leave, to go abroad, the writ petitioner, had straight away, gone to a foreign country and she had rejoined duty on 15.09.2014 after returning from United States. According to the official respondents, as per G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, the petitioner has to get prior permission from the Director of Elementary Education, Chennai, and the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, appellants 1 and 3 respectively, and in the above circumstances, the leave period from 11.06.2014 to 15.09.2014, can be treated only as unauthorised leave. In the abovesaid circumstances, the appellants have contended that the writ petitioner is not entitled to salary and other benefits, for the abovesaid period.
4. Before the Writ Court, the petitioner has contended that the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder, would alone be applicable to teaching and non teaching staff, working in a private school, and both the impugned proceedings passed by the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, 3rd appellant herein, placing reliance on G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, are liable to be set aside, as the aforesaid G.O., cannot be made applicable to the petitioner, working as a teacher in a private school. Submission has also been advanced that the abovesaid Government Order, issued in exercise of powers, conferred under Article 309 of the Constitution of India, can be made applicable, only to Government Servants, and not to the teaching and non teaching staff in a private aided school.
5. Attention of the Writ Court, has been invited, to Section 18 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which delineates the functions of the school committee, and the responsibility of the educational agency under the abovesaid Act, for appointment of teachers and other employees in a private school and contention has been made that the School Committee of a recognised private school alone is the competent authority to appoint a teaching and non teaching staff and therefore, the contention of the official respondents to the contra is not tenable. Reference has also been made to Section 21(2) of the Act, read with rule 16, by which, the Act contemplates a code of conduct, in Annexure II made under rule 16(1), wherein it is stated that no teacher or other persons employed in a private school, shall remain absent himself from his duties, without prior permission and even in cases of sickness or absence on medical grounds, a medical certificate to the satisfaction of the school authorities shall be produced within a week. Therefore, it is contended that it is the school authority, namely, the School Committee, alone is the competent authority to satisfy the reasons assigned for leave and not the official respondents.
6. Placing reliance on the abovesaid statutory provisions and the decisions of this Court in K.Michael Antony Vs.State of Tamil Nadu rep by its Secretary, Department of School Education, Chennai 9 and others reported in (2010) 4 MLJ 1207 and The Director of School Education, College Road, Chennai and others Vs.Geldon Wifred Viola and others reported in 2009(2) TLNJ 101 (Civil), submissions have been advanced before the Writ Court that request of the writ petitioner, for disbursement of leave salary for the period between 11.06.2014 and 15.09.2014, ought not to have been denied, relying on G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, which can, at best, be applicable to Government Servants.
7. Adverting to the abovesaid statutory provisions, G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, and the decisions cited supra, a learned single Judge held that G.O.Ms.No.140, (Personnel and Administrative Reforms (A) Department, dated 21.11.2013, issued in exercise of powers, under Article 309 of the Constitution of India, can be made applicable, only to Government Servants and not to teaching or non teaching staff, in private aided schools, and also by observing that the school committee, constituted under the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder, alone is the competent authority, to sanction leave to teaching or non teaching staff, and inasmuch as, permission has already been granted by the School Committee to the writ petitioner, to go abroad with sanction of leave, set aside the orders impugned, in the writ petition and accordingly, allowed the prayer sought for.
8. Reiterating the stand taken before the Writ Court and by inviting the attention of this Court to the proceedings of the Director of Elementary Education, Chennai, the 1st appellant herein, dated 30.05.2014, Mr.V.R.Shanmuganathan, learned Special Government Pleader, submitted that when the 1st respondent/writ petitioner sought for a ?No Objection Certificate?, to obtain a passport, the same was granted, based on the powers delegated in G.O.Ms.No.440, School Education Department, dated 15.03.1982, subject to certain conditions, which includes that before proceeding abroad, the petitioner ought to have applied to the Government/Head of the department, for sanction of leave to which she is eligible and ought to have obtained sanction from the Head of the department, for the entire period of absence.
9.Learned Special Government Pleader further submitted that when the Secretary and Correspondent of the 2nd respondent school has intimated the Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District, the 3rd appellant herein, that the school committee had granted permission and sanctioned leave, to the petitioner on private affairs, immediately, a reply dated 07.06.2014 was sent to the Secretary and Correspondent of the 2nd respondent school, through the Headmaster, stating that the school has not enclosed the letter of the petitioner seeking permission, or the order permitting the petitioner to obtain the passport, and also the order of the Director of Elementary Education, Chennai, 1st appellant herein, permitting the petitioner, to go abroad. He therefore submitted that without the abovesaid orders, from the Head of the Department, salary cannot be claimed, for the period of absence, as a matter of right.
10. Learned Special Government Pleader also submitted that the Writ Court failed to consider that the abovesaid requirements were not satisfied by the teacher. It is his further contention that if no prior permission is required from the Director of Elementary Education, Chennai, as contended, then there was no need, for the teacher, to have applied to the Director of Elementary Education, Chennai, for a no objection certificate, for getting the passport. According to him, when the 1st respondent/writ petitioner subjected herself, to the jurisdiction of the Director of Elementary Education, Chennai, the 1st appellant herein, and obtained an order dated 30.05.2014, to apply for passport, subject to conditions, set out in the said proceedings, then she should have applied for permission, to leave the country, from the Head of the Department, viz., the Director of Elementary Education, Chennai, for sanction of leave, to which, she is eligible and only after getting such permission and sanction, from the competent authority, she should have left the country. Therefore, he contended that in the absence of the above, or in other words, he contended that violation of the condition, stated supra, it is open to the educational authorities, to pass appropriate orders, declining pay for the abovesaid period.
11. Lastly, he contended that Government/Educational authorities have to grant-in-aid to teaching and non teaching staff, working in private aided schools and therefore, it is always open to the educational authorities, to impose reasonable conditions, whenever a teaching and non teaching staff leaves the country. He further submitted that the proceedings dated 30.05.2014 of the Director of Elementary Education, Chennai, the 1st appellant herein, imposing a condition that she should obtain sanction for leave, before proceeding abroad, has not been challenged and therefore, it is not open to the writ petitioner, who had violated the abovesaid condition, to seek for disbursement of salary, for the period of absence. For the abovesaid reasons, he prayed for reversal of the order made in W.P(MD)No.18040 of 2014 dated 08.12.2014.
12. Per contra, Mr.E.V.N.Siva, learned counsel for the 1st respondent/writ petitioner, reiterated the submissions advanced before the Writ Court, and took this Court, through the relevant provisions of the statutory provisions and the order impugned. He prayed to sustain the impugned order in the writ appeal.
Heard the learned counsel for the parties and perused the materials available on record.
13. Before adverting to the rival contentions, we deem it fit to refer to the statutory provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and the rules made thereunder. Section 18 of the Act reads as follows:-
?18.Functions of the school committee and responsibility of educational agency under the Act: (1) Subject to the provisions of this Act and the rules made thereunder, the school committee shall have the following functions, namely,
(a)to carry on the general administration of the private school excluding the properties and funds of the private school
(b) to appoint teachers and other employees of the private private school, fix their pay and allowances and define their duties and the conditions of their service; and
(c)to take disciplinary action against teachers and other employees of the private school (2)The educational agency shall be bound by anything done by the school committee in the discharge of the functions of that committee under this Act.
(3)For the purposes of this Act, any decision or action taken by the school committee in respect of any matter over which the school has jurisdiction shall be deemed to be the decision or action taken by the educational agency.
14. As rightly contended by Mr.E.V.N.Siva, learned counsel for the 1st respondent/teacher, the school committee is empowered to appoint teachers and other employees, in private schools, fix their pay and allowances and define their duties and conditions of service. Section 21 of the of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, is reproduced hereunder:-
?21.Teachers and other persons employed in private schools to be governed by Code of Conduct:-(1)Every teacher and every other person employed in any private school shall be governed by such Code of Conduct as may be prescribed and if any teacher or other person so employed violates any provision of such Code of Conduct, he shall be liable to such disciplinary action as may be prescribed.
(2)The school committee, may define the standards of conduct to be observed by teachers and other persons employed in the private school, such standards not being inconsistent with the provisions of this Act and the rules made thereunder.?
15. Reading of the above provisions, makes it clear that teachers and other persons, employed in a private school, are governed by the code of conduct, as prescribed in the statutory provisions,and if any such teacher or other person employed, violates, any provision of such code of conduct, he/she shall be liable to such disciplinary action, as may be prescribed. School committee is also empowered to define the standards of the code of conduct, not being inconsistent with the provisions of the Act and the rules made thereunder. Rule 16 of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974, also reiterates the said position, that teachers and other persons, employed in private schools, are governed by the code of conduct, and the said rule is extracted hereunder:-
?16.Teachers and other persons employed in private schools to be governed by Code of Conduct:- (1) The teachers and other persons employed in private school shall be governed by the Code of Conduct as specified in Annexure II.
(2)A teacher or other person employed in a private school shall be liable to disciplinary action and punishment, if he violates any provision of the Code of Conduct which may include, dismissal or removal or termination of service or reduction in rank.
(3)Violation of any one of the standards of conduct defined by the school committee shall render the teacher or the other person liable to suitable disciplinary action and punishment which shall not, however, include dismissal, removal, termination of service or reduction in rank?.
16. Annexure II made under rule 16(1) of the Tamil Nadu Recognised Private Schools Regulation Rules, sets out the code of conduct, for teacher and other persons employed in a private school. Clause 2 of Annexure II made under rule 16(1) of the Tamil Nadu Recognised Private Schools Regulation Rules, is as under:-
?No teacher or other person employed in a private school shall absent himself from his duties without prior permission. In cases of sickness or absence on medical grounds, a medical certificate to the satisfaction of the school authorities shall be produced within a week.?
17.Reading of the code of conduct shows that no teacher or other persons, employed in a private school shall remain absent himself, from his duties, without prior permission and even in cases of sickness or absence on medical grounds, a medical certificate to the satisfaction of the school authorities shall be produced within a week. Thus the School Committee is the competent authority, to sanction leave, in respect of teachers and others employed in a private school.
18.Under the statutory provisions, applicable to a private school, recognised by the competent authority, it is the school authorities to satisfy themselves as to whether the staff employed in a recognised school is eligible for leave, and not the educational respondents. True that under the Act and the rules, the educational authorities have to grant salary to the staff working in a recognised aided schools, but at the same time, powers are conferred only on the school authorities to grant leave. In the case of teachers employed in schools under the direct control of the educational authorities, they can sanction the leave.
19.Testing the correctnesss of an order sanctioning leave by the school committee, to a staff, with reference to leave rules and the provisions of Tamil Nadu Private School Regulation Act, 1973 and the rules made thereunder applicable to them, in the matter of grant, is different from saying that as per G.O.Ms.No.109, Personnel and Administrative Reforms (A) Department, dated 31.07.2006, the staff ought to have obtained sanction of leave from the Head of the Department, viz., the Director of Elementary Education.
20. G.O.Ms.No.109, Personnel and Administrative Reforms (A) Department, dated 31.07.2006, deals with 'No Objection Certificate', to be obtained by a government servant, when he undertakes a trip to a foreign country. The said G.O., speaks about sanction of leave and delegation of powers to the Head of the Department, in respect of Groups B, C and D Officers. G.O.Ms.No.190, is extracted hereunder, Conduct Rules ? No Objection Certificate to undertake trip to a foreign country and sanction of leave ? Delegation of powers to the Heads of Departments in respect of Group B, C and D Officers Personnel and Administrative Reforms (A) Department G.O. (Ms) No. 109 Dated : 31.7.2006 Read:
1.G.O. (Ms) No.288, Personnel and Administrative Reforms (A) Department, dated 04.12.1997
2.G.O. (Ms) No.90, Personnel and Administrative Reforms (A) Department, dated 13.05.1999
3.Govt. letter No.13676/A/98-9, Personnel and Administrative Reforms (A) Department, dated 07.01.2000 :ORDER As per rule 24A of the Tamilnadu Government Servants Conduct Rules 1973, no Government Servant shall, except after obtaining a ?No Objection Certificate? from the Government apply for grant or renewal of passport or undertake trip to a foreign Country. While applying for such ?No Objection Certificate?, information regarding the purpose of the visit, the duration of stay and the name of the Countries proposed to be visited shall be furnished.
2.In the Government Order first read above instructions have been issued to the effect that the powers to issue ?No Objection Certificate? be delegated to the respective Heads of Departments in respect of Government Servants belonging to Group B,C and D who apply for grant or renewal of passport to undertake trips to foreign Countries as tourists or on pilgrimage or to see friends and relatives or to seek employment. However the Government, retained the powers to issue ?No Objection Certificate? in respect of ?A? Group Officers who apply for passport.
3. As foreign travel has become very common and economically viable, more and more Government Servants are frequently travelling abroad either as tourists or to see their near and dear ones. Consequently a large number of proposals to issue ?No Objection Certificate? to go abroad are received by the Government. The Government have therefore examined the question of delegating more powers to the heads of Departments in this matter. After careful consideration, the government direct that powers be delegated to the Heads of Departments to issue ?No Objection certificate? to the Government Servants belonging to Groups B, C and D only who apply to undertake trip to foreign countries as tourists or on pilgrimage or to see friends and relatives or to seek employment and to sanction leave therefore. However the Government retains the powers to issue ?No Objection Certificate? in respect of Group ?A? Officers who apply to undertake trip to foreign countries.
4. The Government also direct that the Heads of Departments shall ensure the following before, granting ?No Objection Certificate? to the government Servants, as aforesaid.
(i) No diciplinary proceedings are pending or contemplated against the individual under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
(ii) No vigilance case is pending or contemplated against the individual.
(iii) There are no grounds to believe that the applicant could figure adversely on the security records of the Government; (report should be obtained from CBCID) and
(iv) The decision for the grant of ?No Objection Certificate? should be taken by the Heads of the Department himself/herself. The ?No Objection Certificate? should also be signed by him/her.
5. 5. The Government also direct that the heads of Departments shall issue the ?No Objection Certificate? incorporating the following conditions namely:-
i) That the individual should not take up any appointment or undergo any training or study programme during his /her stay abroad without prior approval of the head of Department;
ii) That the Government will not be made liable for any expenditure including traveling expenditure etc. in connection with his/her trip abroad;
iii) That he/she should not tend er resignation of the pos t held by him/her under this Government while abroad and his/her resignation of appointment will not be accepted on any account.
iv) That he/she should not canvass or seek any business while abroad.
v) That before proceeding abroad he/she should apply to the Head of Departments concerned for the sanction of leave to which he/she is eligible and get it sanctioned for the entire period of his/her absence.
vi) That he/she shall not use the ?No Objection Certificate? for any subsequent trip abroad for any purpose without the prior sanction of the competent authority.
vii) That the ?No Objection Certificate? will be valid only for a period of six months from the date of issue of such certificate.
6. The consolidated instructions issued by the Government in the letter third read above shall be followed scrupulously by the Head of Departments while granting ?No Objection Certificate to the Government servants to go abroad.
7. Necessary amendment to rule 24-A of the Tamil Nadu Government Servant?s conduct Rules, 1973 will be issued separately with reference to para 3 above.
(By order of the Governor) GIRIJA VAIDYANATHAN SECRETARY TO GOVERNMENT
21. Reading of the Government Order makes it clear that a specific reference has been made to Rule 24-A of the Tamil Nadu Government Servant?s conduct Rules, 1973, which states that no Government servant shall, except after obtaining Identity Certificate from the Government, apply for, grant or renewal of passport and shall, except after obtaining a No Objection Certificate from the Government, undertake trip to foreign country.
22. G.O.Ms.No.140, Personnel and Administrative Reforms (A) Department, dated 07.09.2006, again speaks about the Tamil Nadu Government Servants Conduct Rules, 1973 and by virtue of the said G.O., an amendment has been issued to Rule 24-A of the said Rules, with effect from 31st July, 2006, which reads as follows:
?In the said Rules, in rule 24-A, after the second proviso, the following proviso, shall be inserted, namely, ?Provided also that the Heads of Department concerned shall be competent to exercise the powers of the Government under this rule to issue No Objection Certificate to the Government servants belonging to Groups B, C and D, who apply to undertake trip to foreign countries, as tourists or on pilgrimage or to see friends or relatives or to seek employment.??
23. Yet another amendment has been issued to Rule 24-A of the abovesaid Rules, setting out the procedure, when a Government Servant applies for passport/for renewal/to undertake a foreign trip and issue of ?Identity Certificate? to Government Servants. G.O.Ms.No.259, Personnel & Administrative Reforms (A) Department, dated 17.12.2007, is reproduced hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT Tamil Nadu Government Servant's Conduct Rules, 1973 ? Passports ? Revised Passport Issuance procedures ? Application for ?Identity Certificate? and ?No Objection Certificate? for applying Passport/for renewal/to undertake foreign trip and issue of ?Identity Certificate? to Government Servants while applying for passport its renewal and ?No Objection Certificate? to go abroad ? Rule 24-A ? Amendments ? Issued.
Personnel & Adminstrative Reforms (A) Department
G.O. (Ms) No. 259 Dated : 17.12.2007
Read :
1.Government lr. No. 13676/A/98-9, Personnel & Administrative Reforms (A) Department, dated 7.1.2000.
2.Government lr. (Ms) No. 89, Personnel & Administrative Reforms (A) Department, dated 9.4.2007.
ORDER:
In the letter first read above, the Government have issued consolidated instructions for the grant of ?No Objection Certificate? to obtain or renewal of Passport and for undertaking trip to foreign countries.
2. In the mean time, the system of issuance of passport to Government Servants was reviewed by the Ministry of External Affairs and it was decided to issue Passport to all Central Government Employees, State Government Employees, Employees of Statutory bodies and Public Sector Undertakings, only on production of Identity Certificate issued by the competent authority as per the prescribed format. The Ministry of External Affairs, Government of India has requested the Tamil Nadu Government to issue suitable instructions to all the Departments to issue Identity Certificate for applying for Passport.
3 In the letter second read above, instructions have been issued to all State Government Department/ Statutory Bodies and Public Sector undertakings to issue Identity Certificate to their employees in order to apply for Passport in the prescribed format.
4 The Government have now decided to prescribe an application to be submitted by all Government servants while applying for an ?Identity Certificate? for grant /renewal of passport and a ?No ? Objection Certificate? while going abroad, and also formats for ?Identity Certificate? and ?No Objection Certificate?.
5 The following Notification will be published in the Tamil Nadu Government Gazette:-
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the Tamil Nadu Government servants? Conduct Rules 1973.
2. The amendments hereby made shall come into force on the Seventeenth day of December 2007.
AMENDMENTS In the said Rules:-
I. in rule 24-A (1) for the marginal heading, the following marginal heading shall be substituted. Namely:
?Obtaining of Identity Certificate before applying for Passport and No Objection Certificate for undertaking foreign trip?
(2) for the opening two sentences, the following sentences shall be substituted.
Namely:
? No Government servant shall, except after obtaining Identity Certificate from the Government, apply for grant or renewal of passport and shall, except after obtaining ?No Objection Certificate? from the Government, undertake trip to foreign country. Application for such Identity Certificate or No Objection Certificate shall be submitted in Form I in Schedule III appended to these Rules and the Identity Certificate and No Objection Certificate, shall be issued in Forms II and III, respectively, in the said Schedule?
(3) for the first proviso, the following proviso shall be substituted, namely:
?Provided that he shall not leave India for seeking employment abroad without the prior permission of the Government?
24. Rule 24-A of the Tamil Nadu Government Servants Conduct Rules, 1973, underwent another amendment in the year 2013, in the matter of obtaining ?No Objection Certificate? for a Government servant to apply for grant of renewal of passport to visit foreign countries as tourists or on pilgrimage or to see friends or relatives or to seek employment. Powers have been delegated to the concerned authority, in respect of Groups B, C and D Officers. G.O.Ms.No.140, Personnel and Administrative Reforms (A) Department, dated 21.11.2013, is extracted hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT Tamilnadu Government Servants Conduct Rules, 1973 ? No Objection Certificate to the Government Servants to apply for grant to renewal of passport to visit foreign countries as tourists or on pilgrimage or to see friends or relatives or to seek employment ? Delegation of Powers to the concerned appointing authority in respect of Group B, C and D Officers ? Amendment to Rule 24-A of the Tamil NaduGovernment Servants Conduct Rules 1973 ? Orders ? Issued.
Personnel & Adminstrative Reforms (A) Department
G.O. (Ms) No. 140 Dated : 21.11.2013
Read :
1.G.O. Ms. No.90, Personnel and Administrative Reforms (A) Department, dated 13.05.1999.
2.G.O. Ms. No.140, Personnel and Administrative Reforms (A) Department, dated 07.09.2006.
3.Letter No. RAV (i) / 2129 / 2013, dated 21.01.2013 received from the Additional Chief Secretary / Commissioner of Revenue Administration ORDER:
In the Government order first read above, amendments were issued to Rule-24A of the Tamil Nadu Government Servants Conduct Rules, 1973 delegating the powers of the Government to the Heads of Department to issue No Objection Certificate alongwith Identity Certificate to the Government Servants belonging to Group B, C and D who apply for grant or renewal of passport to visit foreign countries as tourists or on pilgrimage or to see friends or relatives or to seek employment.
2. In the Government order second read above amendments were issued to Rule-24A of the Tamil Nadu Government Servants Conduct Rules, 1973 delegating the powers to the Head of the Department to issue No Objection Certificate to the Government Servants belonging to Group B, C and D to undertake trip to foreign countries and sanction of leave.
3. In the letter third read above, the Additional Chief Secretary / Commissioner of Revenue Administration has requested to delegate the powers to the concerned appointing authority of the Government Servants belonging to Group B, C and D who seeks ?No Objection Certificate? for grant or renewal of passport as well as to grant Identity Certificate instead of Heads of Department.
4. The Government have accordingly decided to amend Rule 24-A of the Tamil Nadu Government Servants Conduct Rules, 1973.
5. The following Notification will be published in the Tamil Nadu Government Gazette.
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment to the Tamil Nadu Government Servants? Conduct Rules, 1973. AMENDMENT In the said Rules, in rule 24-A, for the second proviso the following proviso shall be substituted, namely:-
?Provided further that the appointing authority concerned shall be competent to exercise the powers of the Government under this rule to issue No Objection Certificate to the Government Servants belonging to Groups B, C and D who apply for grant or renewal of passport to visit foreign countries as tourists or on pilgrimage or to see friends or relatives or to seek employment?
(BY ORDER OF THE GOVERNOR) PRINCIPAL SECRETARY TO GOVERNMENT
25. In terms of G.O.Ms.No.140, Personnel and Administrative Reforms (A) Department, dated 21.11.2013, the Director of Elementary Education, Chennai, has issued proceedings in Rc.No.7805/D3/2014, dated 17.03.2014 and communicated the same to all the District Elementary Educational Officers. In turn, the same has been sent to the Assistant Elementary Educational Officers. Vide proceedings, dated 25.03.2014, the Director of Elementary Education, Chennai, has stated that G.O.Ms.No.140, Personnel and Administrative Reforms (A) Department, dated 21.11.2013 and the further proceedings in Rc.No.7805/D3/2014, dated 17.03.2014, stated supra, would be made applicable to all the Aided Schools and accordingly, has communicated the same, to the District Elementary Educational Officers.
26. When the petitioner, a Secondary Grade Teacher, in Bharathiar Middle School, Paramakudi, Ramanathapuram District, has applied for passport, the same is stated to have been forwarded to the Director of Elementary Education, Chennai. Vide proceedings in Rc.No.9051/H2/2014, dated 30.05.2014, the Director of Elementary Education, Chennai, has issued No Objection Certificate, to the petitioner, to obtain passport, subject to certain conditions, which as follows:
?(i) She should not take up any appointment or undergo any training/seminar/workshop/conference other than the one specified during her stay abroad without prior permission of the Government/Head of the Department.
(ii) That the Government/Head of the Department will not be made liable for any expenditure including travel expenditure etc., in connection with her trip abroad.
(iii) She should not tender resignation of the post held by her under the Government, while abroad and her resignation of the appointment if tendered while abroad will not be accepted on any account.
(iv) She should not canvass or seek any business while abroad.
(v) That before proceeding abroad, she should apply to the Government, Head of the Department for the sanction of leave to which she is eligible and get it sanctioned for the entire period of her absence.
(vi) She should not use the No Objection Certificate for any subsequent trip abroad for any purpose without the prior sanction of the competent authority.
(vii) This ?No Objection Certificate? is valid for a period of six months from the date of issue and it is issued only in connection with the purpose indicated above and should not be used for any other purpose.?
27. Clause (v) of the abovesaid proceedings, urged by the learned Special Government Pleader, is that before proceeding abroad, the petitioner should apply to the Government/Head of the Department for the sanction of leave, to which, she is eligible and get it sanctioned for the entire period of her absence. According to him, the petitioner has not challenged the proceedings, dated 30.05.2014, by which, a condition has been imposed on her, to apply to the Director of Elementary Education, Chennai, for sanction of leave, before proceeding abroad and get the leave sanctioned.
28. According to him, two conditions have to be satisfied by the petitioner, to go abroad, viz., (1) No Objection Certificate has to be issued by the Director of Elementary Education, Chennai and (2) As per G.O.Ms.No.109, Personnel and Administrative Reforms (A) Department, dated 30.07.2006, sanction of leave/permission should be obtained from the Director of Elementary Education.
29. Learned Special Government Pleader further submitted that though No Objection Certificate has been obtained, subject to the condition that the petitioner should apply to the Government/Head of the Department, for snaction of leave, to which, she is eligible and only after obtaining sanction of leave, she should have proceeded abroad, and as the condition has been violated, there is no manifest illegality in the order of the Assistant Director of Elementary Education, Paramakudi, dated 29.09.2014 and the consequential order, dated 24.10.2014, returning the proposals for grant-in- aid, for the period between 11.06.2014 and 15.09.2014, when the petitioner had availed leave on private affairs. It is also his contention that the direction, dated 29.09.2014 of the Assistant Director of Elementary Education, Paramakudi, to take disciplinary action, is in consonance with the proceedings of the Director of Elementary Education, Chennai, dated 30.05.2014.
30. Material on record discloses that on the request of the petitioner, to permit her to go abroad, for attending her daughter's delivery, the School Committee, has passed a unanimous resolution on 04.10.2014. Leave has also been sanctioned by the School Committee. Writ Court, after considering the decisions in K.Michael Antony v. State of Tamil Nadu reported in 2010 (4) MLJ 1207 and The Director of School Education, College Road, Chennai and others v. Geldon Wifred Viola and others reported in 2009 (2) TNLJ 101 (Civil), held that the Government Orders, issued in exercise of the powers, under Article 309 of the Constitution of India, cannot ipso facto, be made applicable to the staff, working in private schools, for the reason, that as per the Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and the Rules made thereunder, the School Committee is competent to sanction leave to the staff and so saying, set aside the proceedings of the Assistant Director of Elementary Education, Paramakudi, dated 29.09.2014 and the consequential order, dated 24.10.2014.
31. The main contention of the learned Special Government Pleader is that the proceedings of the Director of Elementary Education, Chennai, in Rc.No.7805/D3/2014, dated 25.03.2014, whereby, orders have been issued, making the Government Orders, applicable to all the aided schools, have not been challenged and hence, the petitioner ought to have obtained sanction of leave, from the Head of the Department. Though the proceedings of the Director of Elementary Education has not been challenged in a separate writ petition, since the said proceedings is put against the writ petitioner for denying leave salary, we deem it fit to examine as to whether the same is in accordance with the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and the Rules made thereunder.
32. On this aspect, firstly we wish to consider the decision made in K.Michael Antony v. State of Tamil Nadu reported in 2010 (4) MLJ 1207. In the reported case, the request of the petitioner therein, for alteration of Date of Birth was rejected, on the ground that as per Rules framed under the Rules, applicable to government servants the respondents therein are not bound to entertain any application for alteration of date of birth, received after lapse of 5 years from the date of entry into service. Adverting to the above, with reference to the service conditions of the employees in a private school, governed under the Tamil Nadu Recognised Private Schools (Regulation) Act 1973, and the Rules made thereunder vis-a-vis the applicability of the Tamil Nadu State and Subordinate Service Rules, framed under Article 309 of the Constitution of India, only to the members of the State service and the decision of this Court in The Director of School Education, College Road, Chennai and others v. Geldon Wifred Viola and others reported in 2009 (2) TNLJ 101 (Civil), wherein, this Court held that, ?the Government Order which was issued in exercise of the powers under Article 309 of the Constitution of India would be made applicable only to the Government servants viz., the teachers who are employed in Government schools and not to the teachers in Private Schools as they are governed only by the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and the rules made thereunder.?, at Paragraph 11 in K.Michael Antony's case (cited supra), this Court held as follows:
?11. Under Article 309 of the Constitution of India, the Governor of a State has the authority to make rules regulating recruitment and the conditions of service of persons appointed in public service in connection with the affairs of the State. Therefore, by no stretch of imagination it can be said that Tamil Nadu State and Subordinate Service Rules would apply to the teachers working in Private Schools.?
33. Section 51 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, speaks about the delegation of powers of the Government. Section 51-A reads as follows:
?The Government may, by notification, direct that any function of the competent authority under this Act or the rules made thereunder, shall in relation to such matters and subject to such conditions, as may be specified in such notification, be performed also by such officer or authority sub- ordinate to the Government, as may be specified in the notification.?
34. As per Section 56 of the said Act, the Government have got powers to carry out the purpose of the Act and it is extracted hereunder:
?(1) (a) All rules made under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on the day on which they are so published.
(b) All notifications issued under this Act shall, unless they are expressed to come into force on a particular day, come into force on the day on which they are published.
(2) Every rule made or notification issued under this Act shall, as soon as possible, after it is made or issued, be placed on the table of both of the Legislative Assembly and if, before the expiry of the session in which it is so placed or the next session, (the Legislative Assembly agrees) in making any modification in any rule notification or (Legislative Assembly) agrees) that the rule or notification should not be made or issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.?
35. Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, have been framed, in exercise of the powers, under Section 56 of the Act. Both the Act and the Rules do not speak about the powers of the Director of Elementary Education, to make any Government Order, ipso facto, applicable to both the teaching and non-teaching staff, in the schools, recognised and governed by the Tamil Nadu Recognised Private Schools (Regulation) Act. As stated supra, Government Orders, referred to in the earlier paragraphs, were issued by the Government, while dealing with Rule 24-A of the Tamil Nadu Government Servant?s conduct Rules, 1973, which is applicable only to government servants. Code of conduct, as prescribed in Annexure-II, in terms of Section 21 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, read with Rule 16 of the Rules framed thereunder, alone can be made applicable to teaching and non-teaching staff, working in recognised schools. No doubt, by addition or deletion of substitution, an amendment can be made to the statutory provisions dealing with the code of conduct for the staff in a recognised private school, by the Government and consequently, modify the code of conduct prescribed in Annexure-II. But the Director of Elementary Education, Chennai, cannot import rule 24A of the Tamilnadu Government Servant Rules into the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the rules made thereunder. Incorporation of Section 24A directly into the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, is beyond the legislative competence of the Director of Elementary Education and such a course is impermissible under the statutory provisions. The School Committee has the powers to appoint and dismiss a teaching staff. Such committee also has the powers to grant leave to any staff.
36. As discussed in the foregoing paragraphs, School Committee is the authority to deal with service conditions of the staff. Materials available on record, do not indicate as to whether, the Government have issued any orders, in exercise of the powers, conferred under Sections 51 and 51-A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, by which a teaching and non-teaching staff, working in a recognised schools, have to obtain sanction of leave, from the Director of Elementary/School Education, as the case may be. The contention of the appellants that the staff works in a recognised private school, has to obtain a 'No objection certificate' from the Head of Department, viz., the Director of Elementary Education, on the ground that he is the appointing authority, cannot be countenanced, as he is not the appointing authority under the Tamil Nadu Recognised Prvate Schools (Regulations) Act, 1973.
37. Unless and until, the Government issues any order, within the frame work of the statute, which governs the recognised and aided schools, the Director of the Elementary Education, Chennai, cannot assume jurisdiction, extending the abovesaid Government Orders, which are intended mainly for to the government servants, where there are Heads of the Department. Though recognised private aided institutions, perform a public duty and receive salary for the staff, through State Aid, yet in sor far as grant of leave is concerned, it is sanctioned only by the School Committee, in exercise of their powers, under Section 18 of the Act.
38. Offices of a Department may be located at different places, for which, there may be a Head of the Department. But a recognised aided private school, cannot be said to be a unit of the Department of School Education. On the other hand, it is an independent unit, governed by the statutory provisions of the Act and the rules framed thereunder. The Director has the powers to issue directions, only within the frame work of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder.
39. Merely because, the petitioner has not obtained sanction of leave from the Director of Elementary Education, Chennai, it cannot be said that there is a violation of the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder and in particular, the Code of Conduct framed in Annexure-II, in terms of Section 21 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, read with Rule 16 of the Rules framed thereunder. Conditions imposed in the order, dated 30.05.2014, of the Director of Elementary Education, Chennai, can at best be made applicable, only to the extent, within the statutory provisions, to which, the recognised aided schools and the staff therein, are bound to follow. At the risk of reptition, Government orders issued are amendments to rule 24A of the Government Servant Conduct Rules, and not to Tamil Nadu Recognised Private Schools (Regulation) Act. 1973.
40. Amendment to Rule 24-A of the Tamil Nadu Government Servant's Conduct Rules, cannot ipso facto be applied to recognised private schools, by the Director of Elementary Education, by issuing proceedings, on his own, and violation of which, cannot entail disciplinary action, as contemplated in the proceedings of the Assistant Director of Elementary Education, Paramakudi, dated 29.09.2014. As both the orders, dated 29.09.2014 and 24.10.2014, impugned in W.P.(MD)No.18040 of 2014, are based on the proceedings of the Director of Elementary Education, Chennai, rightly they have been set aside by the Writ Court.
41. In view of the above, we are not inclined to accept the submissions advanced by the learned Special Government Pleader, for the appellant. We find no valid grounds to interfere with the impugned order. Hence, the Writ Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
.