Madras High Court
Aided Primary School vs District Collector on 5 October, 2007
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/10/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR WRIT APPEAL (MD) No.125 of 2005 and W.P.(MD).Nos.2401 and 2478 of 2007 and M.P.(MD).Nos.1 & 2 and 1 & 2 of 2007 W.A.(MD).No.125 of 2005 Aided Primary School, Rep. by its Secretary, Correspondent, Malaippatty, Nilakkottai Block, Dindigul District. ... Appellant vs. 1.District Collector, Dindigul District, Dindigul. 2.Commissioner, Panchayat Union, Nilakkottai, Dindigul District. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent, against the order of the learned Single Judge dated 17.01.2005 passed in W.P.(MD).No.4237 of 2004. W.P.(MD).Nos.2401 and 2478 of 2007 Kalavathi Aided Elementary School Represented by its Correspondent/Secretary Kannarpatti, Malayakondanpatti Post, Nilakottai Taluk, Dindigul District. ... Petitioner in W.P.No.2401/2007 Aided Primary School, Represented by its Secretary/Correspondent Malaipatty, Nilakkottai Block, Dindigul District. ... Petitioner in W.P.No.2478/2007 Vs. 1.The Collector, Dindigul District, Dindigul. 2.The P.A. to Collector, Dindigul District, Dindigul. 3.The Commissioner, Panchayat Union, Nilakottai Taluk, Dindigul District. ... Respondents in both W.Ps. Writ Petitions filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the notification No.Na.Ka.No.742/07/A4 dated 06.03.2007 issued by the third respondent in so far as the petitioner school is concerned and quash the same and direct the respondents to select any one of the candidates from the panel of names submitted by the management in the post of Noon Meal Organiser in the petitioner school on 27.11.2006 and 28.06.2004 respectively. !For Appellant/ Petitioners ... Mr.V.Panneerselvam ^For 1st Respondent in W.A.No.125/2005 & RR-1 and 2 in W.P.Nos.2401 & ... Mr.R.Janakiramalu 2478 of 2007 Special Government Pleader For 2nd Respondent in W.A.No.125/2005 & R-3 in W.P.Nos.2401 & 2478 of 2007 ... Mr.K.Bhaskaran ******* :COMMON JUDGMENT
(Judgment of the Court was delivered by P.R.SHIVAKUMAR,J) Since a common issue has arisen in the above said writ appeal as well as the above said two writ petitions, by order of Court, all the matters stand listed before us for disposal and we consider it convenient to dispose of all the three matters by a common judgment.
2. The procedure for appointing Noon Meal Organisers for Nutritious Meal centres functioning at Private Aided Schools (Minority/Non-minority) has been put in issue in all the three cases. According to the appellant in W.A.No.125/2005 which is also the petitioner in W.P.No.2478 of 2007 and the petitioner in W.P.No.2401 of 2007, the choice of selection should be restricted to the panel of five names submitted by the Correspondent of the School concerned and hence the orders impugned in the writ petitions are liable to be quashed and consequently the respondents should be directed to select any one of the persons from the panel of names sent by the Management of the School concerned. In this regard, the Court's attention was drawn to the following G.Os., wherein the procedures for selection and appointment of Noon Meal Organisers have been incorporated:
(i) G.O.Ms.No.215, Backward Classes, Welfare, Nutritious Meal Programme and Social Welfare Department, dated 09.12.1988;
(ii) G.O.Ms.No.918, Backward Classes, Welfare, Nutritious Meal Programme and Social Welfare Department, dated 03.11.1989;
(iii) G.O.Ms.No.294, Social Welfare & Nutritious Meal Programme (NMP.I) Department, dated 21.10.1993; and
(iii) G.O.Ms.No.206, Social Welfare & Nutritious Meal Programme (NMP) Department, dated 13.09.1996.
3. According to the procedure prescribed for selection of the candidates, in first cited G.O.Ms.No.215 dated 09.12.1988, for the post of Organisers under the Tamil Nadu Government Nutritious Meal Programme, when a vacancy for the post of an Organiser in any Nutritious Meal Centre arose in a panchayat area, the Deputy Inspector of Schools concerned should intimate the vacancy to the Panchayat Union Commissioner who in turn would inform the President of the Panchayat. The Panchayat President had to prepare a panel of names of not less than three and not more than six per vacancy. The same was to be submitted to the Panchayat Union Commissioner after getting the approval of the Panchayat Board. On receipt of such panel, the Panchayat Union Commissioner would make appointment. In case, no suitable candidate was available in the panel, a fresh panel had to be prepared. Similar procedure had also been prescribed for the local bodies, like Municipalities and Town Panchayats.
4. Thereafter in 1989 by the second cited G.O.Ms.No.918 dated 03.11.1989, a comprehensive procedure was notified for appointment of Noon Meal Organisers in Nutritious Meal centres functioning in the Panchayat Union areas, Corporation School Centres, Municipal School Centres and Minority and Non-minority Aided School Centres. We are concerned with the mode of appointment of Noon Meal Organisers in respect of Aided School (Minority/Non-minority) Centres and not in respect of other centres. Clause 7(f) of G.O.Ms.No.918 which deals with the procedure for appointment of Noon Meal Organisers in the Minority/Non-Minority Aided School Centres reads as follows:
"Appointment to the post of Noon Meal Organisers in minority/non-minority aided school centres.
As regard to the procedures to be followed in selection of Nutritious Meal Organisers in Minority/non-minority aided schools are concerned, the following procedure is prescribed:
(a) For each minority/non-minority school, the Manager, or the Correspondent will send in panel of 5 names to the Collector for appointment as Nutritious Meal Organisers following the existing conditions of appointment.
(b) In drawing up the panel, the Government policy of giving one job to one family should be kept in mind.
(c) The Collectors shall give approval to any of the names recommended by the Managements of schools and communicate his approval to the Management of the concerned school and thereafter the Management will issue appointment orders."
5. As per the above said Scheme, the Correspondent of the Aided Minority/Non-Minority School concerned had to prepare a panel of five names and submit to the Collector for appointment as Noon Meal Organiser. The Collector would approve any one of the names recommended by the Management and communicate his approval to the Management/Correspondent of the concerned School. Thereafter, the Management would issue appointment orders. Later on, the power of selection, of course confined to the panel of five names submitted by the Management, was entrusted to the Personal Assistant (NMP) to the Collector. However, the Correspondent of the concerned School had been conferred with the power to issue appointment orders to the candidates thus selected by the Personal Assistant (NMP) to the Collector.
6. While so, in W.P.No.13732/1992, the Madras High Court delivered a judgment to the effect that the Correspondents of the Aided Schools had no right to claim any right in the administration of the Nutritious Meal Programme as the same was entirely run by the Government and the entire expenses of the scheme were borne by the Government. In view of the same and in view of the fact that the Government noticed frequent friction between the Management of the Schools and the Nutritious Meal Organisers causing big hindrance to the smooth functioning of the scheme, G.O.Ms.No.294 dated 21.10.1993 was issued modifying the procedure found in paragraph-7(f) Sub-clauses (a) to (c) in G.O.Ms.No.918 dated 03.11.1989. By such modification, a selection committee consisting of the Personal Assistant (NMP) to the Collector as Chairman and the Correspondent/Headmaster of the concerned School and the Commissioner of the concerned Panchayat Union as members, was constituted for appointing Nutritious Meal Organisers in the Minority/Non-minority Aided School Centres. By G.O.Ms.No.206 dated 13.09.1996, the procedure for appointment of Nutritious Meal Organisers in the Minority/Non-minority Aided School Centres outlined in para-4 of G.O.Ms.No.294 is directed to be retained with a modification that the existing selection committee shall make the selection of candidates for appointment of Nutritious Meal Organisers; that the Personal Assistant (NMP) to the Collector/District Social Welfare Officer as Chairman of the Committee should submit the connected papers in full shape to the District Collector for his approval and that the appointment order should be issued in the name of the Collector.
7. While so, the District Collector, Dindigul District issued a communication in his letter dated 05.07.2004 to the appellant in W.A.No.125/2005 informing that the vacancies in the post of Noon Meal Organisers in the centres attached to Aided Schools (Minority and Non-minority) shall be filled up by the surplus employees in the Integrated Child Development Scheme as per Government letter No.159/02/Social Welfare Department dated 05.11.2002. It was also informed that the Noon Meal Organiser attached to the centre functioning in the appellant's school could not be appointed out of the list of five persons submitted by the Management. Challenging the said order of the District Collector, Dindigul, the appellant in W.A.No.125/2005 had filed the writ petition concerned, namely W.P.No.4237/2004. The learned Single Judge dismissed the writ petition holding that paragraph-7(f) sub-clauses (a) to (c) of G.O.Ms.No.918 dated 03.11.1989 had been modified by G.O.Ms.No.294 dated 21.10.1993 by constituting a selection committee for selection of the candidates to be appointed as Noon Meal Organisers and that it was no longer permissible for the appellant to place reliance on clauses (a) to (c) of paragraph 7(f) of G.O.Ms.No.918 dated 03.11.1989. Hence the appellant is before this Division Bench, questioning the correctness of the order passed by the learned Single Judge.
8. Meanwhile, the District Collector, Dindigul District issued a notification in Na.Ka.No.742/07/A4 dated 06.03.2007, which is impugned in W.P.Nos.2401 and 2478 of 2007, directly calling for the applications for filling up the vacancies of Noon Meal Organisers in the centres functioning at the Aided Primary School, Malaippatty (petitioner in W.P.No.2478/2007 and the appellant in W.A.No.125/2005) and Aided Elementary School, Kannarpatti (petitioner in W.P.No.2401/2007). The said notifications have been challenged by the respective Correspondents of the School in W.P.Nos.2478 and 2401/2007.
9. The learned counsel representing the appellant in W.A.No.125 of 2005/petitioner in W.P.No.2478 of 2007 and the petitioner in W.P.No.2401 of 2007 has advanced an argument as follows:
As per G.O.Ms.No.918 dated 03.11.1989, a panel of five names would be prepared by the Correspondent of the School and sent to the District Collector for approval. The District Collector would select one of the names from the panel and give his approval for being appointed as Noon Meal Organiser of the Centre attached to the school and the Correspondent of the school concerned, on receipt of communication of such approval, would issue appointment order to such person. Subsequently by virtue of G.O.Ms.No.294 dated 21.10.1993, the procedure of getting a panel of five names from the Correspondent of the school to which the Nutritious Meal Centres was attached was kept in tact, but with a modification that the selection of one of the names from the panel was entrusted to a Committee consisting of the following persons:
(i) Personal Assistant (NMP) to the Collector - Chairman;
(ii) Correspondent/Headmaster of the concerned School - Member; and
(iii) Commissioner of the concerned Panchayat Union - Member.
The power of issuing appointment orders has also been taken away from the Correspondent/Headmaster of the school and the appointment order was directed to be issued in the name of the Personal Assistant (NMP) to the Collector. In G.O.Ms.No.206 dated 13.09.1996, further modification in the manner of issuing appointment orders was made. By such modification, the Personal Assistant (NMP) to the Collector, as Chairman of the selection committee, has been directed to submit the connected papers in full shape to the District Collector for his approval and the appointment orders have been directed to be issued in the name of the District Collector.
10. The learned counsel further submitted that in none of the G.Os. issued subsequent to G.O.Ms.No.918 dated 03.11.1989, the procedure of getting a panel of five names from the Aided Minority/Non-minority schools for being considered either by the Personal Assistant (NMP) to the Collector or by the subsequent committee has been dispensed with and that the only change made by those G.Os. was in respect of the prescription of the authority to select the candidate for appointment and the authority in whose name the appointment order should be issued.
11. In support of the contention raised on behalf of the appellant and the writ petitioners, the learned counsel relied on the unreported judgment of Justice K.P.Sivasubramaniam in "Packiyathai Middle School, Chinthamani, Puliyangudi, Tirunelveli District vs. The District Collector, Tirunelveli District, Tirunelveli and 2 others" (W.P.No.17473 of 1997), wherein it was held that the Personal Assistant to Collector or Collector could not make any appointment without getting a panel of five names as per Sub-clauses (a) to (c) of paragraph 7(f) of G.O.Ms.No.918 dated 03.11.1989. The learned Single Judge, while referring to the above said observation made in the earlier judgment, has observed that the change in the procedure of appointment of Noon Meal Organisers brought about by virtue of G.O.Ms.294 dated 21.10.1993 constituting a selection committee could not have been brought to the notice of the Judge in the earlier case and hence dissented from the view expressed by Justice K.P.Sivasubramaniam. The relevant paragraph of the order of the learned Single Judge runs as follows:
"However, the material fact of existence of another G.O. in G.O.Ms.No.294, Social Welfare and Nutritious Meal Programme (NMP-I) Department, dated 21.10.1993, has not been brought to the notice of the learned Judge, while passing the order. In the said Government Order, the earlier G.O.Ms.No.918, dated 03.11.1989 has been modified by constituting a selection committee consisting of the Personal Assistant (NMP) to the Collector as Chairman, the Correspondent/Headmaster of the concerned school and the Commissioner of the concerned panchayat union as members. Hence reliance on clauses (a) to (c) of paragraph 7(f) of the G.O.Ms.No.918, dated 03.11.1989, cannot hold good now, and the prayer as sought for by the petitioner by placing reliance on the clauses of paragraph 7(f) of G.O.Ms.No.918, dated 03.11.1989, which has been subsequently modified, cannot be granted."
12. The learned counsel representing the appellant in W.A.No.125 of 2005/petitioner in W.P.No.2478 of 2007 and the petitioner in W.P.No.2401/2007 has drawn our attention to the Government letter No.21126/NMP2/2003 dated 25.03.2003. In the said Government letter, it has been clarified that the only modification made in the procedure for appointment of Noon Meal Organisers in the Centres attached to Minority/Non-Minority Aided Schools was the introduction of a selection committee in the place of Collector/Personal Assistant (NMP) to the Collector as the authority competent to make selection of the candidate for appointment; that the further modification made by G.O.Ms.No.206 dated 13.09.1996 was to the effect that the Chairman of the selection committee [Personal Assistant (NMP) to the Collector] should submit the connected papers regarding selection of candidates made by the committee, in full shape to the District Collector for his approval and the appointment orders are required to be issued in the name of the Collector and that the said G.O. did not get rid of the requirement of getting a panel of five names from the Correspondent of the school concerned as envisaged in Sub-Clauses (a) to (c) of paragraph 7(f) of G.O.Ms.No.918 dated 03.11.1989. The relevant paragraph of the Government Letter is extracted here under, for the sake of convenience:
"Further there is no scope for difference of opinion between the Management of minority/non-minority aided schools and the appointing authority, since the management is supposed to sponsor a panel of five eligible candidates and one of the above candidates is appointed by the Collector."
13. After giving due consideration to the submissions made on both sides in this regard, and after perusing the above said Government Letter, we are of the considered view that the contention made by the learned counsel appearing for the appellant in W.A.No.125 of 2005/petitioner in W.P.No.2478 of 2007 and the petitioner in W.P.No.2401 of 2007 has got to be countenanced; that obviously this particular letter of clarification which has been submitted before us in the form of additional typed-set of papers was not brought to the notice of the learned Single Judge and that the result would have been different, had it been brought to the notice of the learned Single Judge.
14. In such view of the matter, we come to the conclusion that the Writ Appeal and both the Writ Petitions shall succeed. Accordingly, the Writ Appeal No.125 of 2005 and the Writ Petition Nos.2401 and 2478 of 2007 are allowed and the impugned order passed by the third respondent in Na.Ka.No.742/07/A4 dated 06.03.2007 is quashed. No costs. Consequently, the connected miscellaneous petitions are closed.
SML To:
1.The Collector, Dindigul District, Dindigul.
2.The P.A. to Collector, Dindigul District, Dindigul.
3.The Commissioner, Panchayat Union, Nilakottai Taluk, Dindigul District.