Madras High Court
)The Director Of Elementary Education vs )B.Infanse on 17 June, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.06.2015
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)Nos.639 of 2015
to 642, 646, 649, 652 to 661
and 315 of 2015 and
362, 715, 1149 of 2014, and
21, 22, 627, 628, 666 to 674 of 2015 and
Connected Miscellaneous Petitions
Writ Appeal(MD)No.639 of 2015
1)The Director of Elementary Education,
College Road,
Chennai-600 006.
2)The District Elementary Educational Officer,
Tirunelveli District at Tirunelveli-627 001.
3)The Additional Assistant Elementary
Educational Officer, Radhapuram,
Tirunelveli District-627 111. ... Appellants
Vs
1)B.Infanse
2)The Correspondent,
St.Xavier's RC Primary School,
Ramanathapuram,
Tirunelveli District. ... Respondents
Appeals filed under Section 15 of Letters Patent, against the common
order passed in W.P(MD)Nos.5731 of 2013 dated 25.02.2014.
!For Appellants(in all W.As) : Mr.V.R.Shanmuganathan, Spl.G.P
:COMMON JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J.) Challenge in all the writ appeals, is to the directions issued to the appellants/respondents, to approve the appointment of the writ petitioners, from the date of their initial appointment.
2.Summary of the facts of the writ petitions, is that the writ petitioners were appointed as Secondary Grade Teachers, as against sanctioned posts in the respective schools. When the Management of the schools sought for approval of their appointment, from the date of appointments, the District Elementary Educational Officer, Tirunelveli, 2nd appellant in all the appeals, rejected the claim, on the ground that approval cannot be granted, as there were surplus teachers in other schools, under the same Management.
3.Perusal of the orders made in the writ petitions shows that the Writ Court, has considered few earlier orders, passed by this Court, in writ petitions, on the same issue. The Writ Court, has also taken note of the orders passed by the Hon'ble Division Benches, dismissing the appeals filed by the State, against the orders made in the writ petitions, setting aside the orders of rejection passed by the educational authorities, wherein, approval was denied on the grounds that posts in which, the teachers were appointed, were also found as surplus. Consequently, the Writ Court, by a common order dated 25.02.2014, allowed Writ Petition(MD)Nos.5731 to 5733 & 5735 of 2013. The said order is extracted hereunder:-
The approval sought for the post of the appointment of the petitioners were rejected only on the ground that there were surplus posts available in the Schools coming under the Management of the very same authority.
2. The learned counsel for the petitioner has submitted that admittedly, the petitioners' appointment were in the sanctioned post. He has further submitted that the issued raised in the writ petitions are covered by the orders of this Court.
3. Considering the very same issue, this Court in W.P(MD)No.5872 of 2012, dated 12.12.2013, after taking note of the earlier decision was pleased to hold in paragraph Nos.5 to 7 and the same reads as follows:-
5.Considering the very same issue, this Court was pleased to pass the following order:
2.The case of the petitioner is that he was appointed as Secondary Grade Teacher in the third respondent school on 01.02.2010 in a vacancy caused on account of voluntary retirement of one A.Sarojini. A proposal was submitted by the third respondent management seeking approval of appointment of the petitioner. The first respondent, by the impugned order dated 30.05.2011, declined to approve the appointment of the petitioner on the ground that there are surplus teachers in the other schools run by the same management, and therefore, the appointment of the petitioner cannot be approved. Challenging the said order, the petitioner has come forward with the present Writ Petition.
3. A similar issue was considered by this Court in W.P.(MD).No.4372 of 2006, dated 01.09.2006, wherein, this Court repelled such stand taken by the respondents. The said order was followed in W.P.Nos.10350 to 10352 of 2006, by order dated 08.12.2006. The said order passed in W.P.No.10351 of 2006 was challenged in W.A.292 of 2007 and the same was dismissed by a Division Bench of this Court on 02.08.2007. The orders passed in W.P.Nos.10350 & 10352 of 2006 were also confirmed in W.A.No.194 of 2007 and W.A.No.205 of 2007, dated 09.06.2007. The said Judgments were also implemented. In W.P.(MD).No.10256 of 2008, dated 27.03.2013, a similar order of rejection was quashed and the Writ Petition was allowed.
4. In view of the said settled position, there is no justification to deny the approval of appointment as sought for by the petitioner, as the petitioner was appointed in a sanctioned vacancy and the school, in which the petitioner was appointed, is eligible to retain the said post and the petitioner is fully qualified for being appointed in the said post.
5. Applying the said Judgments to the facts of this case, the impugned order dated 30.05.2011 passed by the first respondent is set aside and the Writ Petition is allowed. The respondents are directed to approve the appointment of the petitioner from the date of his appointment with salary and other benefits. The respondents shall pass orders within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petitions are closed. No costs. ?
6.The decision rendered by this Court is applicable to the case on hand. Furthermore, the other ground on which the impugned order has been passed also cannot be sustained as other school is bound to have a minimum of two teachers and therefore, in adequacy of student's strength cannot be a ground for not approving the appointment of the petitioner. However, the petitioner cannot seek a direction to third respondent to comply with the direction of the first and second respondents, by transferring the surplus staff available in other schools.
7.In such way of the matter, the writ petition is allowed and the respondents are directed to approve the appointment of the petitioner on the date of her appointment within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs.?
4. Considering the same, these Writ Petitions are allowed on the very same terms. No costs. Consequently, connected Miscellaneous Petitions are closed.?
Similar orders have been passed in other writ petitions, under challenge, and it is suffice to extract the above order from one of the orders impugned.
4.Assailing the correctness of the impugned orders, the only submission made by Mr.V.R.Shanmuganathan, learned Special Government Pleader, is that when the Management, had many surplus posts, in other schools, they should have redeployed the surplus posts, to the needy schools, where assessment has been made, and staff fixation determined as per G.O.MS.No.525, School Education(D1) Department, dated 29.12.1997, and without such redeployment, no Secondary Grade Teacher or any other teacher, should have been appointed. In support of the abovesaid contention, he has relied on, the observations made by the Hon'ble Division Bench in W.A(MD)No.70/2012 dated 13.03.2012, which are extracted hereunder:-
?4.As far as the 1st respondent's case is concerned, in the 2nd respondent school, the sanctioned strength of the teachers for the year 2010-2011 were 4, of which there were only two appointments, thereby leaving two posts vacant. Taking note of the above statistics that there are excess teachers available in the Group of Schools run by the 2nd respondent Management and the 1st respondent's claim in the 2nd respondent school is within the sanctioned strength, this Court directs the 1st appellant herein to grant approval of the appointment of the 1st respondent in the 2nd respondent school. Apart from that, the 1st appellant in the appeal is hereby directed to deploy the excess teachers and posts excess with teachers available in the Group of Schools run by the 2nd respondent Management, namely TDTA, to the extent of 68 posts, to the schools where there are unfilled vacancies in the sanctioned strengths, so that there could be proper utilization of excess hands available in the 2nd respondent Group of Schools.
5.It is seen that 247 Primary Schools and 73 Middle Schools are being run by TDTA. When excess teachers are available in a number of institutions run by the 2nd respondent Management, as of today, in fairness to the claim and demands of the students, the 1st appellant herein should take immediate steps to deploy the 68 excess teachers, immediately, to the schools where vacancies are to be filled, which is stated to be 73 in number.? Except the above, no other ground is urged.
Heard the learned Special Government Pleader and perused the materials available on record.
5.Indisputably, the posts, in which, the writ petitioners have been appointed, are sanctioned by the Education Department, after assessment, in terms of G.O.Ms.No.525, School Education(D1) Department, dated 29.12.1997. Eligibility of the writ petitioners, is not disputed. Dates of appointment of the teachers, is also not disputed. Earlier, when the request of the teachers working in TDTA Primary and Middle Schools, Puliangudi, Tirunelveli District, for approval, was denied, on the ground that they were redeployed by the District Elementary Educational Officer, Tirunelveli, Writ Petitions have been filed. Vide common order in W.P.No.10352, 10350 and 10351 of 2006, dated 08.12.2006, they were allowed. The District Elementary Educational Officer, Tirunelveli, has filed Writ Appeals as against the common order dated 08.12.2006 and that the same were dismissed, by separate orders in W.A(MD)No.205 of 2007 dated 09.06.2007, W.A(MD)No.194 of 2007 dated 09.06.2007 and W.A(MD)No.292 of 2007 dated 02.08.2007, respectively. As the orders made in the abovesaid Writ Appeals are similar in nature, suffice to extract one such order, which is as follows:-
Order made in W.A(MD)No.205 of 2007 dated 09.06.2007 ''This writ appeal is filed against the order dated 08.12.2006 made in W.P.Nos.10350 to 10352 of 2006, wherein the relief of issuance of a writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the District Elementary Educational Officer, Tirunelveli in passing redeployment order by construing that there are certain excess teachers with reference to G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997. The said G.O. was the subject matter of the Full Bench decision in the case of Director of Elementary Education v. S.Vigila reported in [2006(5) CTC 385], wherein it was held as follows:
"Keeping in view the various relevant aspects, we feel that G.O.Ms.No.525 dated 29.12.1997 should be interpreted in the following manner:
(1) The ratio of students-teacher strength as indicated in the G.O. should be primarily considered by taking each individual standard/section as a unit.
(2) The minimum strength of teachers required obviously should not fall below the number of Standards/Section in a school. In other words, if there are five standards, obviously the minimum number of teachers should be five, out of which one would be the Headmaster.
(3) If the students' strength in a particular Standard exceeds 60, at that stage, an additional section is required to be created requiring the sanction of a second teacher and the strength reaches 100, the post of a third teacher is required.
(4) Even after maintaining the aforesaid ratio by taking into account the students' strength of each individual standard and additional section, as the case may be, by keeping in view the teacher-students ratio 1:40 of the entire school if the teachers strength is required to be increased, the same has to be allowed, but in no case, the teachers' strength should be less than the number of standards including the additional sections. If more teachers are thus sanctioned keeping in view the over all strength of the school, the authorities of the school should create additional section in respect of any particular Standard according to the need and convenience keeping in view the standard of education. This requirement is not only in respect of Aided Schools or Government Schools, but also in respect of any Private Recognised School. In other words, this ratio is to be maintained for any school which requires recognition.
(5) It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the Constitution."
That Full Bench decision has been followed by the learned Single Judge, incidentally, who was also a party to the Full Bench and the redeployment order has been set aside. In the above stated factual matrix of the issue, when the law is settled by the Full Bench, we are of the view that filing of an appeal by the Authority is nothing but an exercise in futility. Hence this Writ Appeal is dismissed. Consequently, connected M.P.No.3 of 2007 is also dismissed. No costs.?
6.As stated supra, inasmuch as appointments of the writ petitioners were made against sanctioned posts in the respective schools. Observations made in the W.A.No.70 of 2012 dated 13.03.2012, granting permission to the District Elementary Educational Officer, Tirunelveli, to take steps, to deploy excess teachers, from the schools under the same management, cannot be a ground, to deny approval of appointments of the writ petitioners, as Secondary Grade Teachers in the schools, in which, they were appointed. When the school management sends a proposal for approval of the teachers, the educational authorities have to consider, as to whether such teachers have been appointed against sanctioned posts and whether they are qualified for such appointment. Rule of reservation wherever applied is also verified. On the above aspects, there is absolutely no quarrel by the educational authorities.
7.When a specific question was posed to the learned Special Government Pleader, as to whether appointment of Mr.S.Austin Jeba Solomon, a teacher in TDTA Primary and Middle Schools, Devarkulam Pastorate, Tirunelveli District/1st respondent in W.A(MD)No.70 of 2012 was approved or not, notwithstanding the observations made by the Hon'ble Division Bench in the above appeal, filed by the State, the answer was in the affirmative and therefore, it is evident that even after the said observations, the department had chosen to approve the appointment of the said teacher. For another question posed to the learned Special Government Pleader, as to whether the department had taken steps to redeploy the excess teachers, as observed, the answer was in the negative. Thus in the absence of any steps being taken by the department and when appointments of the writ petitioners, are against sanctioned posts, in the respective schools and considering the fact that the department itself, had chosen to approve the appointment of one Mr.S.Austin Jeba Solomon, on its own, party respondent in W.A.No.70 of 2012, wherein, the abovesaid observations were made, this Court is of the view that the writ petitioners are entitled for approval of their appointments, as Secondary Grade Teachers. At this juncture, it is also worthwhile to consider the following decisions, as to whether a benefit conferred to a similarly placed person can be denied or not, when facts are similar.
(i) In the decision in State of Karnataka vs. N.Parameshwarappa reported in 2003(12) SCC 192, at paragraph 8, it is held thus:
?8. As indicated earlier, the learned Judges in the Division Bench confined the relief granted to the period w.e.f. 1-4-1990. A faint challenge has also been made to this part of the order, but not of any substance or merit, for acceptance. Relief in this regard has been so confined to more than one relevant and justifying reason and one such was the absence of the Union of India and the University Grants Commission before the Court as party to the proceedings. Even that apart some of the facts of the submission made by Mr V.R.Reddy, learned Senior Counsel appearing for the respondent teachers, which found favour of our acceptance and dissuaded us from interfering with the judgment under challenge in these appeals, if persuaded to their logical extent only fortifies the said conclusion arrived at by the Division Bench of the High Court. One such contention was that it was permissible for the Government, independently of the Central Government assistance also to extend the benefits to the teachers beyond that which has been provided for by the Government of India. Such responsibility, even under the government order dated 30-3-1990 has been undertaken from 1-4-1990 onwards by the State Government to implement the scheme in entirety. Therefore, for such added reasons too we are in entire agreement with the judgment of the Division Bench that the relief accorded should be confined to the period w.e.f. 1-4-1990 only. At the same time we do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and having regard to the fact that relief related to the revision of scales of pay, every one of that class of teachers who approached would be entitled to the benefit, notwithstanding that they have not approached the court. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts and circumstances of the case wherein a serious and genuine doubt existed about the applicability of the government order dated 30-3-1990, as raised in the proceedings.?
(ii) In Govind Ram Purohit vs. Jagjiwan Chandra, reported in 1999 SCC (L & S) 788, at paragraph 3, it has been held thus:
?3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only Respondent 1, the High Court while finally concluding the matter has given a direction to promote all those who were senior to the appellants even though they were not parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. Therefore, we do not see any reason why we should entertain such a technical plea when the High Court has done substantial justice to all concerned. The above referred Supreme Court decisions were followed by me in 2006(2) MLJ 572 (N.S.BALASUBRMANIAN V. FOOD CORPORATION OF INDIA). The said order was challenged in W.A.No.956/2006 and the same was dismissed on 30.10.2006 and S.L.P.(C) No.677/2007 filed against the Division Bench order was also dismissed by the Supreme Court on 23.04.2007. In the decision reported in 2011 (5) SCC 553 (RATHY SHYAM V. STATE OF UTTERPRADESH) the Supreme Court held that the policy of pick and choose in acquiring some parcels of land while leaving many other parcels of lands under Land Acquisition Act is discriminatory and violation of Article 14 of the Constitution of India. The Division Bench of this Court in the decision reported in 2011 (5) CTC 503 (TAMIL NADU HOUSING BOARD V. UMA MAHESWARI RAMASWAMY) held that there must not be discrimination in land acquisition proceedings. In the decision reported in 2010 (2) CTC 336 (SC) (HARI RAM V. STATE OF HARIYANA) the Supreme Court held that if the Courts are not correcting the wrong action of the Government it may leave citizen with the belief that citizen is right in contacting right persons in the Government as if judicial proceedings are not efficatious. Thus similarly placed persons are bound to be treated equally without discrimination is a fundamental right guaranteed under Article 14 of the Constitution of India.?
8.It is now more than four years, since the observations were made in W.A(MD)No.70 of 2012 dated 13.03.2012. It is also be noted that every year as per G.O.MS.NA.525, School Education(D1) Department, dated 29.12.1997, staff fixation is done, in each school, by educational authorities, on the basis of teacher-pupil ratio. No materials have been placed before this Court, as to the staff fixation done in the subsequent years, from 2012 onwards, in the schools, in which, surplus was noticed. If the existence of surplus staff continued in the subsequent years, the department ought to have taken action only, as against the said schools and redeployment could have been done then and there. But from the submission of the learned Special Government Pleader, it is evident that no steps were taken, for all these four years. If in the subsequent years, staff fixation in the schools, in which excess was noticed, had already been approved, then the educational authorities are bound by such orders.
9.In the light of the discussion and decisions, stated supra, we do not find any valid reason, to interfere with the order made in NB2 the writ petitions. Accordingly, the Writ Appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
To
1)The Director of Elementary Education, College Road, Chennai-600 006.
2)The District Elementary Educational Officer, Tirunelveli District at Tirunelveli-627 001.
3)The Additional Assistant Elementary Educational Officer, Radhapuram, Tirunelveli District-627 111.
.