Madras High Court
The Correspondent vs The State Of Tamil Nadu on 2 July, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2018
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD) No.14016 of 2018
and
W.M.P.(MD) Nos.12715 & 12716 of 2018
The Correspondent,
St. Ephrem's M.S.C. Higher Secondary School,
Sooriacode – 629 190,
Kanyakumari District. ... Petitioner
-vs-
1.The State of Tamil Nadu,
Rep. by its Secretary,
Department of School Education,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
College Road,
Chennai – 600 006.
3.The Chief Educational Officer,
Nagercoil, Kanyakumari District.
4.The District Educational Officer,
Kuzhithurai – 629 163,
Kanyakumari District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus calling for the
records relating to the impugned proceedings issued by the 4th
respondent District Educational Officer in A.Thi.Mu.No.932/A2/2017
dated 28.07.2017, quash the same and further Direct the 3rd and 4th
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2
respondents to approve forthwith the appointment of C.Ambujam as
BT Assistant in History in the Petitioner's School w.e.f. the date of her
appointment on 01.06.2015 with all attendant benefits including the
arrears of salary and allowance.
For Petitioner : Ms.Amala
for Issac Chambers
For Respondents : Mrs.S.Srimathy,
Special Government Pleader
*****
ORDER
The prayer sought for in this writ petition is for a Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued of the fourth respondent in A.Thi.Mu.No. 932/A2/2017, dated 28.07.2017, quash the same and further to direct the respondents 3 & 4 to approve forthwith the appointment of C.Ambujam as BT Assistant (History) in the Petitioner's School w.e.f. the date of her appointment, ie., on 01.06.2015, with all attendant benefits including the arrears of salary and allowance.
2. Heard Ms.Amala, learned Counsel appearing for the petitioner as well as Mrs.S.Srimathy, learned Special Government Pleader, who takes notice for the respondents. http://www.judis.nic.in 3
3. It is the case of the petitioner that the petitioner School is one of the 15 recognized private Schools in the Kanyakumari District, run by the Malankara Syrian Catholic Diocese of Marthandam. It is a recognized minority educational institution. The petitioner School was initially established as a Middle School in the year 1956 and subsequently, upgraded as High School and Higher Secondary School in the years 1961 and 2010, respectively. The School is a recognized one and partly aided by the Government of Tamil Nadu. The petitioner School is imparting education from Standards VI to XII and the Government grants / aid to the petitioner School from Standards VI to X. The medium of instruction is Tamil and Malayalam.
4. In the petitioner School, there are 23 teachers, including one Headmistress. Insofar as the Middle School section, ie., Standards 6, 7 & 8, are concerned, Teachers with Secondary Grade training were handling those Standards upto May, 2002. They had the qualification of Teachers Training Certificate, ie., Diploma in Teacher Education course.
5. While so, in the year 2002, the State Government, taking note of the fact that the Secondary Grade Teachers with Diploma http://www.judis.nic.in 4 qualification were not qualified enough to handle the advanced syllabus prescribed for the Middle School section, ie., Standards 6,7 & 8, evolved a policy of appointing Graduate Teachers in those posts of Secondary Grade Teachers. In this regard, G.O.Ms.No.79 (Secondary Education – U1) dated 14.06.2002, came to be issued. Therefore, the post of Secondary Grade Teachers were decided to be upgraded into that of Graduate Teachers with effect from 01.06.2002.
6. Such kind of upgraded posts from Secondary Grade to BT Assistant would be called as “Middle Grade Graduate Teachers”, where Graduate Teachers with B.A., / B.Sc., + B.Ed., qualification would be appointed as Middle Grade Graduate Teachers against the vacancies arising in the post of Secondary Grade Teachers as and when they fell vacant from 01.06.2002.
7. When such being the position, one post of Secondary Grade Teacher in the petitioner School fell vacant on 01.06.2015, due to the retirement of the then incumbent Mrs.S.Prabhada Pushpam on 31.05.2015. In that vacancy, the petitioner School appointed a qualified candidate, namely, Mrs.C.Ambujam, as BT Assistant (History), with effect from 01.06.2015, in the upgraded BT post of http://www.judis.nic.in 5 Secondary Grade Teacher in consonance with G.O.Ms.No.79, School Education Department, dated 14.06.2002. The said Teacher was having the qualification of B.A., and B.Ed., degrees and joined duty on the said appointment and continues to work at the petitioner School till date.
8. The petitioner School submitted the proposal to the fourth respondent, ie., District Educational Officer, on 27.06.2016, to approve the said appointment of the said Teacher from 01.06.2015. The said proposal was returned by the fourth respondent on 24.08.2016, by raising certain queries. Thereafter, on complying with the same, the petitioner School resubmitted the proposal on 13.02.2017, however, the said resubmitted proposal has now been rejected by the impugned order of the fourth respondent dated 28.07.2017.
9. In the said impugned order, the fourth respondent has stated two reasons, namely, i) two BT Assistant (Science) posts in the School are surplus from the Academic Year 2015-16; and ii) the Subject Roster has not been followed while upgrading and filling the vacancy of Secondary Grade Teacher with BT Assistant Teacher. http://www.judis.nic.in 6
10. Challenging the said order, the present writ petition has been filed.
11. Ms.Amala, learned Counsel appearing for the petitioner School would submit that the two reasons stated in the impugned order are no more good reasons.
12. According to the learned Counsel appearing for the petitioner, insofar as the issue of excess Teachers in BT Assistants (Science) in the petitioner School is concerned, the said reason cannot be given for the simple reason that, in view of G.O.Ms.No.79, the petitioner School is entitled to upgrade the post of Secondary Grade Teacher as BT Assistant, on need basis and therefore, the question of excess Teacher, as has been stated in the impugned order, does not arise.
13. The learned Counsel would further submit that, insofar as the second reason that while filling up the post of Secondary Grade Teacher, the School should have followed Subject Roaster is concerned, that issue has been settled in a number of cases. In that regard, the learned Counsel would rely upon the following judgments:-
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i) 2006 (5) CTC 504, in the matter of The Corporate Manager, CSI Corporate Schools, CSI, Diocese of Kanyakumari, Nagercoil v. The State of Tamil Nadu, rep. by its Secretary, Department of School Education, Chennai and others;
ii) (2007) 2 MLJ 760, in the matter of Correspondent, Britannia Higher Secondary School, Chennai v. State of Tamil Nadu, rep. by its Secretary, Department of School Education, Chennai and others; and
iii) W.P.(MD)No.2165 of 2009, in D.Devaprakash Gnanadurai v. The Director of School Education, College Road, Chennai and others, dated 26.11.2010.
14. By relying upon these decisions, the learned Counsel appearing for the petitioner would submit that since both reasons stated in the impugned order are not sustainable, the impugned order is liable to be interfered with and necessary Mandamus may be issued.
15. Mrs.S.Srimathy, learned Special Government Pleader appearing for the respondents, would submit that, with regard to the Subject Roaster, number of judgments have been passed by this Court. Insofar as the first reason is concerned, if the School upgraded http://www.judis.nic.in 8 the post of Secondary Grade Teacher into BT Assistant and on need basis, if the present incumbent is appointed as BT Assistant (History), that would be considered on merits by the respondents.
16. I have considered the submissions made by the learned Counsel on either side and perused the records carefully.
17. As has been rightly contended by the learned Counsel appearing for the petitioner, the issue raised in this writ petition has already been settled in a number of cases and the earliest case is in 2006 (5) CTC 504 (cited supra), where, the learned Judge has considered exactly the same issue of subject wise roster and the relevant portion reads thus:-
“6. The point in issue is whether the petitioner management can be compelled to follow the subject-wise roaster as directed by the second respondent through the impugned circular.
...
13. The impugned order is also in violation of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules, wherein it is not stipulated anywhere that the particular school should follow the subject roaster. Even G.O.Ms.NO.125 dated 12.11.2003, which is governing the appointment of Middle Grade http://www.judis.nic.in 9 Graduate Teachers in standards 6 to 8, nowhere states that subject-wise roaster should be followed. In the absence of anything contained in the said Government Order, the second respondent has no jurisdiction to issue the impugned circular and if at all subject roaster is to be followed by the management, it is the government who is competent to issue the subject roaster in accordance with Section 19 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.”
18. Following the said judgment, another learned Judge of this Court in (2007) 2 MLJ 760 (cited supra) has passed the following order:-
“3. It is also relevant to point out that this Court in the above said judgment has held that the above said Act and Order did not contemplate any where that the schools must have subject roster in respect of appointment of Middle Grade Graduate Teacher.
4. Further the said order of the second respondent which is executive in nature, cannot go against the statutory provision made thereunder as it has been laid down by the Honourable Supreme Court in the decision in B.N. Nagarajan v.
State of Karnataka, which was followed in the decision in V. Sreenivasa Reddy and Ors. v. Government of A.P. and Ors. 1995 Supp (1) SCC 572.
5. Further it is unfortunate for the second respondent http://www.judis.nic.in to take a decision that the said judgment reported in 2006 (5) 10 CTC 504 is applicable only in respect of the CSI Schools and not in respect of the present writ petitioner's school. The learned Government Advocate would fairly submit that the order passed by this Court reported in the above said judgment is applicable to all schools similarly situated since the dictum laid down in respect of the appointment of Middle School Graduate Teachers, whether it is a High School or Higher Secondary School, there was no question of maintenance of subject roster. In view of the same, there is absolutely no reason for the second respondent to reject the proposal for approval of appointment of I. Beaula Charlin as Middle Grade Graduate Teacher in the vacancy caused due to the retirement of Mabel Vijayakumari who retired on 31.05.2005 and the appointment of the said I. Beaula Charlin has to be approved irrespective of the application of subject roster. In view of the same, the writ petition stands allowed with a direction to the respondents to consider the proposal of the petitioner for approval of appointment of I. Beaula Charlin as the Middle Grade Graduate Teacher from the date of her appointment and pass orders if there are no other legal impediment. Such order shall be passed within a period of 12 weeks from the date of receipt of a copy of this order. Consequently, connected M.Ps. are closed.”
19. Following the said judgments, yet another order was passed by another learned Judge in W.P.(MD)No.2165 of 2009, by order dated 26.11.2010 (cited supra), in the same line. http://www.judis.nic.in 11
20. I have considered those judgments passed by this Court. Since the two reasons stated in the impugned order may not be justifiable in view of the Government Orders which are in vogue, especially, in the context of G.O.Ms.No.79, School Education Department, dated 14.06.2002 and also in the context of G.O.Ms.No. 144, School Education Department, dated 04.07.2008, where also the Government has clearly stated that when Secondary Grade Teachers post become vacant permanently, those posts, depending upon the need of the School concerned, can be upgraded as BT Assistant and the same can be filled up.
21. The relevant portion of the order in G.O.Ms.No.144, School Education Department, dated 04.07.2008, reads thus:-
“3.MH;e;j ghprPyizf;Fg; gpd;dh;> nkny gj;jp 3-y; cs;s gs;spf;fy;tp ,af;Fehpd; ghpe;Jiuapiz Vw;W> gpd;tUkhW Mizaplg;gLfpd;wJ:-
(i) murhiz (epiy) vz;. 244> gs;spf; fy;tp> ehs; 22.09.2007 gj;jp 4(VI)y; btspaplg;gl;Ls;s Miz muR cjtpbgWk; gs;spfSf;Fk; bghUe;Jk;;;
(ii) muR cjtpbgWk; gs;spfspy; 6-10 tFg;gf[ is xnu myfhff; bfhz;L ,ilepiy Mrphpah; gzpaplq;fs;
epue;jukhf fhypnaw;gLk; nghJ> mg;gs;spapd; njit kw;Wk; http://www.judis.nic.in jFjpapd; mog;gilapy;> njitahd ghlj;jpy; gl;ljhhp 12 Mrphpah; gzpaplkhf khw;wk; bra;jpl rk;ge;jg;gl;l Kjd;ikf; fy;tp mYtyh;f;F mjpfhuk; tHq;fg;gLfpd;wJ; kw;Wk;
(iii) xU Kiw ghlepiy (jkpH;> Mq;fpyk;> fzpjk;> mwptpay;> rK:f mwptpay;) gl;ljhhp Mrphpah; gzpaplk; Kjd;ikf; fy;tp mYtyuhy; eph;zak; bra;ag;gl;l gpd;dh;> mJ vf;fhuzk; bfhz;Lk; vjph;fhyj;jpy; khw;wg;glf;RlhJ.”
22. Since both the issues, ie., both the reasons stated in the impugned order have already been either decided by this Court or the respondents themselves have passed / clarified, the fourth respondent, once again, ought not to have given the very same reasons in the impugned order. Therefore, this Court has no hesitation to hold that the two reasons stated in the impugned order are absolutely unjust and unsustainable and are liable to be quashed.
23. In the result, the impugned order is quashed and the matter is remitted back to the respondents for re-consideration. In this regard, the petitioner School shall be at liberty to re-submit the proposal within a period of two weeks from the date of receipt of a copy of this order. On receipt of such re-submitted proposal from the petitioner School, the respondents, especially, respondents 3 & 4, http://www.judis.nic.in 13 shall consider the same and pass necessary orders for the purpose of granting approval of the Teacher concerned at the petitioner School for the post of BT Assistant (History), from the date of original appointment and on such order being passed, necessary pay and service benefits shall be extended to the said Teacher forthwith.
24. With these observations and directions, this writ petition is ordered. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes/No 02.07.2018
Internet : Yes/No
gk
To
1.The Secretary,
State of Tamil Nadu,
Department of School Education,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
College Road,
Chennai – 600 006.
3.The Chief Educational Officer,
Nagercoil, Kanyakumari District.
4.The District Educational Officer,
Kuzhithurai – 629 163,
http://www.judis.nic.in Kanyakumari District. 14
R.SURESH KUMAR, J, gk W.P.(MD)No.14016 of 2018 02.07.2018 http://www.judis.nic.in