Madras High Court
The Secretary vs The District Elementary Educational ... on 17 October, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/10/2012 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.(MD)No.13515 of 2012 The Secretary, Buddhar Middle School, Periyakulam ..Petitioner Vs The District Elementary Educational Officer, Theni, Theni District. ..Respondent Prayer Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records of the respondent relating to the impugned order passed in Na.Ka.No.2480-A 2-2011: quash the proceedings of the respondent in Na.Ka.No. 2480-A 2-2011, dated 19.07.2012 as illegal and direct the respondent to dispose of the approval petition of the petitioner, dated 16.05.2012 presented under Section 22(2) of the Tamil Nadu Recognized Private Schools(Regulation) Act, within two weeks or within such period fixed by this Court or declare that as the approval has deemed to have been granted due to laxity of time. !For Petitioner ...M/s.S.Seenivasagam ^For Respondent ...Mr.R.Karthikeyan, Addl.Govt.Pleader :ORDER
Mr.R.Karthikeyan, learned Additional Government Pleader takes notice on behalf of the respondent.
2. With the consent of learned counsel for the parties, the Writ Petition is taken up for final disposal.
3. The challenge in this Writ Petition is to the order passed by the respondent, dated 19.07.2012.
4. The translated copy of the order reads as under:
PROCEEDINGS OF THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER, THENI PRESENT: Mr.P.MUTHUCHAMY, M.SC., M.Ed., Na.Ka.No.2480-a 2-2011 Dated: 19.07.2011 Sub: Elementary Education-aided-non-minority-periakulam Circle - Buudhar Middle School, Periyakulam -
proposal seeking approval to dismiss Maths Graduate Teacher Mrs.M.Vanidewari - sending to Assistant Elementary Educational Officer, Periakulam, for his enquiry and recommendation - Regarding.
Ref: Letter of the Secretary, Buddhar Middle School, Periakulam, dated 16.05.2012.
The Secretary,Buddhar Middle School, Periakulam has sent proposal as cited above, seeking approval of District Elementary Educational Officer for the proposed dismissal of Maths Graduate Teacher Mrs.M.Vanideswari.
Section 22 of the Tamil Nadu Recognized Private Schools(Regulation)Act, 1973 renders order of dismissal ineffective unless it has prior approval of the competent authority under the said Act. The school challenged the vires of Section 22 of the Tamil Nadu Recognized Private Schools(Regulation)Act, 1973 on the ground that it is arbitrary in that it gives unbridled and untrammelled powers in hands of competent authority to refuse approval. Section 22(2) of the said Act provides guidelines for deciding application for approval of order of dismissal. It requires the competent authority to record his reasons for being satisfied for according approval of dismissal order. In this case, the ratio laid down in Bharat Sevashram Sangh .vs. State of Gujarat(1998(4)SCC 51) applied and provision not arbitrary. Management Committee not being the citizen cannot press into service Article 19(1)(g) of the Constitution (Swamy Sadananda, Secretary, Disciple of Swamy Chidhavananda Vivekananda Higher Secondary School, Thiruvenkadam West .vs. State of Tamil Nadu (2002(3) CTC 553).
3. Section 22 of the Tamil Nadu Recognized Private Schools (Regulation Act, 1973. This is a very important section which is intended to give security of tenure to the teachers and other persons employed in private schools. This section is somewhat on the lines of Article 311 of the Constitution which gives a similar security of tenure to the civil servants.
This Section deals with two important aspects. Firstly, sub-section (1) and (2) deal with matters relating to dismissal, removal, reduction in rank or termination otherwise secondly, sub-section(3) deals with suspension. So far as dismissal, removal, reduction in rank or termination otherwise are concerned, the teachers and other employee in private schools enjoy the following two rights, namely:-
(3) prior approval of the competent authority is necessary. (4) The competent authority should satisfy that there are adequate and reasonable grounds for taking the proposed action.
The above two rights are extremely valuable in the sense that the awarding of major punishments is completely taken out of the whims and fancies of the private management. Earlier, any teacher was under the mercy of the private management in order to survive, inspite of the fact his work and conduct were throughly satisfactory. Teachers used to be removed on caste, communal, political and other untenable considerations by the private managements. Now a sort of objective satisfaction by a person who is above the aforesaid considerations is provided by this Section, before an order for major punishment is passed against a teacher.
4. Under Rule 15(2)(i) of the School Committee is required to enter into an agreement with the teacher or other person in Form - VII-A or VII-B. Under clause 6 of Form VII-A the School Committee is required to conform to all the provisions contained in the Act and the Rules. Under clause(7) the Committee can dismiss, remove or reduce in rank or terminate the services without informing the grounds on which they intend to take action and they are required to adopt the procedure indicated in clause(7) before taking any final action regarding punishment to be imposed. As per clause 7(a) a memorandum of charge is to be communicated giving reasonable time to give explanation to the School Committee. Under Clause 7(b), after considering the explanation, the school Committee shall communicate the finding and if so desired by the teacher conduct a personal hearing or enquiry, wherein the teacher shall be given the opportunity to examine or cross examine any or all the witnesses, and also produce witnesses. After personal hearing or enquiry, the School Committee is to give report of the personal hearing setting out the proposed punishment. Under Clause 7(d), the School Committee shall inform in writing about its final decision.
Vide the decisions reported in AIR 1957 AII 297(DB), AIR I AII 19(28,29)(FB), "Natural Justice" as envisaged under Article 14(4) of the Constitution of India 1) the person going to be affected should be given a prior notice to meet them: 2) reasonable opportunity should be given to put forth his defence 3) hearing should be unbiased; and 4) power should be exercised bonafide and should not be arbitrary or without reasons. Hence,the Assistant Elementary Educational Officer is directed to hear the concerned teacher on the proposal for dismissal and then the reply of the School Secretary, consider them in the light of he principles laid down above and sent his considered and specific recommendations on the proposal.
Sd/-.................
District Elementary Educational Officer To Assistant Elementary Education Officer, Periakulam Copy to Mrs.M.Vanideswari, Maths Graduate Teacher, Buddhar Middle School, Periakulam(for information) The Secretary, Buddhar Middle School, Periakulam(for information) The Director, Tamil Nadu Elementary Education(for information)
5. The challenge to the order is, that under the statute, the jurisdiction to grant approval or refusal of the action of the management is with the District Elementary Educational Officer, with no power of delegation. The respondent/District Elementary Educational Officer vide the impugned order has directed the Assistant Elementary Educational Officer to hear the concerned teacher on the proposal for dismissal and then sent it for consideration for approval.
6. The impugned order on the face of it is unsustainable in law, as quasi-judicial function cannot be delegated to the subordinate officer. It is for the District Elementary Educational Officer to consider and decide the question on merits and in accordance with law, as being a statutory authority has to apply the mind independently, as his decision cannot be based on the recommendation of lower officer.
7. The Writ Petition is accordingly allowed. The impugned order is set aside. A Writ in the nature of Mandamus is issued directing the respondent to take a final decision on the proposal sent by the petitioner with regard to the dismissal of the employee in accordance with law within one month of the date of receipt of a certified copy of this order.
vsn To The District Elementary Educational Officer, Theni, Theni District.