Madras High Court
P. Elangovan vs The Joint Director Of School Education ... on 18 December, 1997
Equivalent citations: (1998)2MLJ664
ORDER Y. Venkatachalam, J.
1. This writ petition has been filed by the writ petitioner invoking Article 226 of the Constitution of India seeking for a writ of certiorarified mandamus to call for the records relating to the order of the second respondent dated 30.5.1995 and the consequential order of the 1st respondent in proceedings Na.Ka.No.93842/W26/95, dated 19.2.96 and to quash the same and consequently direct the respondents to reinstate the petitioner into service with all backwages and other attendant benefits.
2. The writ petitioner has filed an affidavit in support of the writ petition wherein he has stated all the facts and circumstances which compelled him to file the present writ petition. The 2nd respondent school management has also filed a counter affidavit rebutting all the material allegations levelled against them one after the another and requested this Court to dismiss the writ petition for want of merits.
3. I have heard the arguments advanced by Mr. K.M. Vijayan, learned senior counsel appearing for the petitioner, that of Mr. S. Gopinathan, learned Government Advocate (Writs) on behalf of the Government and also that of Mr. C. Chinnasamy, learned senior counsel for the 2nd respondent management. I have also gone through the entire material documents available on record in the form typed set together with the contents of the affidavit and counter-affidavit.
4. The petitioner herein who is a B.Com., graduate with B.Ed. qualification was terminated from the services of the 2nd respondent school by the impugned order dated 30.5.1995. Aggrieved by the same, on appeal to the appellate authority he has also dismissed the appeal as not maintainable since the 2nd respondent management is a minority institution. In the impugned order it has been categorically stated that as per the order of appointment dated 19.1.1995 the petitioner's services are temporary and that his services and conduct during the tenure of appointment were not satisfactory that further no orders have been received from the Government regularising the petitioner's services, that in the order dated 19.1.1995 his services is only for the period from 23.3.1994 to 30.6.1995, that the Government in its proceedings dated 2.2.95 has sanctioned the grant for salary payable by the school to the petitioner only upto 30.6.1995. On an overall reading of the above impugned order creates an impression that as if the petitioner has been appointed only by the appointment order dated 19.1.1995 temporarily and that too for a period upto 30.6.1995 and that during the tenure of that period his service and conduct were not satisfactory and that is why his services were terminated from 1.6.1995. The counter affidavit also goes to support this version only. Whereas it is the case of the petitioner that he was appointed as double part-time vocational instructor in accountancy and auditing from 1.9.1984 in the 2nd respondent school, that the said post was approved by the Chief Educational Officer, Madurai in his proceedings dated 18.11.1986, that from the date of his appointment, the petitioner has been serving in the school without any remarks till the respondent passed the order of termination dated 30.5.1995 and also that the students trained by the petitioner in the subject have secured 100% results so far. That being so, these facts specified by the petitioner herein has been conveniently denied simply as not correct. It is very significant to note here that in their 11 page long counter, the 2nd respondent has not all made any specific denial about the above allegations made by the petitioner i.e., he was first appointed on 1.9.1984, the said post was approved by the authorities by proceedings dated 18.11.1986, there is no remarks at all during his entire service till his termination on 30.5.1995 and that he made 100% result. In such a circumstance, it is clear that the 2nd respondent has not chosen to put forward all the facts as it is before this Court for the reasons best known to them. That being so, it is an admitted fact that the petitioner was appointed in the 2nd respondent school first in the year 1994. That has been proved by the proceedings of the C.E.O., Madurai, dated 18.11.1986, In and by which it is clear that the appointment of the petitioner herein as double part-time teacher w.e.f. 1.9.1984 has been approved. Even though this document has been placed in the typed set of the petitioner itself, there is no whisper about this document or specific denial has been made by the respondent school in their counter. Under such circumstances, this Court is of the clear views that this petitioner has been appointed in the 2nd respondent school w.e.f. 1.9.1984 and his post has been approved by the educational authorities on 18.11.1986.
5. It is another significant aspect to note that the Government of Tamil Nadu issued G.O.Ms.No.712, Education, dated 28.5.1990 bringing the post of vocational instructor under regular scale and based up the said G.O. the Director of School Education by his proceedings dated 25.7.1990 directed the C.E.Os., in the State to instruct and ensure that the Heads of Higher Secondary Schools of all types of management not to oust the part time teachers who were appointed prior to 23.10.1989. It is also pertinent to note that based upon the said order of the Director of School Education, dated 25.7.1990 and the consequential order of the C.E.O., Madurai, dated 23.3.1991 and also taking into consideration of the seniority of the petitioner, the second respondent by order dated 25.6.1991 appointed the petitioner as full time teacher with effect from 1.4.1990. The said order of second respondent dated 26.6.1991 was approved by the Chief Educational Officer, Madurai in his proceedings, Na.Ka.No.30280/E5/89, dated 9.11.1991. All these are admitted facts and have been substantiated by documents. Regarding these two documents also, the counter is silent and there is no mention about them at all. It is interesting to note that in their, proceeding dated 25.6.1991 it has been clearly and specifically stated by the 2nd respondent that the petitioner who has been working in their school as double part time vocational teacher has been appointed as full time teacher w.e.f. 1.4.1990 F.N. by virtue of G.O.No.712, dated 28.5.1990 and that his appointment is temporary. It has also been specifically mentioned therein that though he was appointed as full time teacher, this post will be regularised according to the rules framed by the Government and that only on the basis of the said regularisation his seniority will be fixed. This has also been further proved by the proceeding of the Education Department, dated 9.11.1991.
6. That being so, The Tamil Nadu Administrative Tribunal in order dated 18.6.1993 and 17.12.1993 set aside the orders issued in G.O.Ms.No.712, Education, dated 28.5.1990 and also the subsequent G.O.Ms.967, Education, dated 16.10.1992. pursuant to the orders of the Tamil Nadu Administrative Tribunal, dated 18.6.1993 and 17.12.1993, the Government of Tamil Nadu examined the matter once again in detail and after careful consideration issued orders dated 23.9.1994 and the appointment of the petitioner herein as full time as further approved for the period from 23.9.1994 to 30.6.1995 in the sale of Rs. 1400-40 1600-50-2300-60-2600. It is also important to note that pursuant to the proceedings of the C.E.O., dated 10.1.1995, the second respondent by order dated 19.1.1995 allowed the petitioner to continue as full time teacher with effect from 23.9.1994.
7. It is another significant aspect to note in the matter that it is very clear from the appointment order issued by the 2nd respondent, the same has been made only on the directions issued by the C.E.O. or the Director of School Education on the basis of the Government orders in vogue, Further, it is clear from the order of the C.E.O. dated 2.2.1995 that the services of the petitioner even after 30.6.1995 cannot be terminated but the payment of grant would be decided after getting further permission from the Government.
8. Further it is the argument of the petitioner herein that even after the expiry of the period the services of the petitioner and all those who were appointed as full time teachers and paid the time scale pursuant to the G.0.834, dated 23.9.1994, are entitled to continue unless the Government by specific G.Os. terminates their services for the reasons taken by the Government, that the discretion to terminate the teachers after the said period does not vest with the management, that there has been no independent power for the second respondent either to appoint or to terminate the services of such of those teachers like the petitioner who were appointed as full time teachers by virtue of the decision of the Government. In the facts and circumstances of this case, this Court is of the firm view that there is much force in the said arguments of the petitioner.
9. It is also argued on behalf of the petitioner herein that the second respondent in the order of appointment dated 19.1.1995 while incorporating the conditions of such appointment imposed by the C.E.O., Madurai in order dated 10.1.1995, added one additional condition taking the power to terminate the full time teachers without notice on the ground of unsatisfactory work and that such a condition is contrary to all the canons of natural justice. Here it is significant to note that only on the basis or the direction issued in the proceedings of the C.E.O., Madurai, dated 10.1.1995, the appointment order dated 19.1.1995 has been issued by the 2nd respondent and this appointment has been approved by the proceedings dated 1.2.1995. A careful perusal of all these three documents, it is clear that the 2nd respondent has itself added one additional condition taking the power of termination on the ground of unsatisfactory work. Therefore, as rightly contended by the learned senior counsel for the petitioner, such a condition is contrary to law and against the natural justice.
10. In the attempt to justifying the order of termination the 2nd respondent contend that the petitioner was appointed temporarily and on a contractual basis as a double part-time instructor, which comes to an end by 30.6.1995 and that the petitioner has no vested right to continue in the post after the specific contractual date. In this regard, let us first look into the G.O.Ms.No.834, dated 23.9.1994 passed by the Government. In para No. 6 of the said G.O. it has been held by the Government as follows:
(i) The work load of the fully qualified part time vocational instructors when regularised will be fixed at a minimum of 24 hours (32 periods)
(ii) Irrespective of the number of fully qualified parttime instructors being brought to regular time scale of pay, one post will be allotted for each existing viable vocational course. The senior most person who gets regular time scale in that school who is qualified for that course will be accommodated against this post;
(iii) If within a school there are more than one such fully qualified person in the regular time-scale of pay available, they shall be accommodated in such full time vocational vacancies available in other schools where fully qualified persons on regular time scale are not available. In the absence of such vacancies, they shall be, declared surplus and accommodated against existing vacant secondary grade posts and teach a minimum of 24 hours (32 periods) though they will draw salary in the scale of pay of Rs. 1400-40-1600-50-2300-60-2600. They will be absorbed into the vocational streams as the first priority as and when posts become available;
(iv) If no fully qualified persons on regular time-scale of pay are available for any course, the full time post will be held as a double part time post;
(v) All other part-time instructors will continue in the respective position as Doubles or single part-time instructors and not more than 1 part-time instructor is attached to each Vocational Course. If there are more than one part-time instructor per course they should be redeployed to needy schools.
From the above directions, one can easily understand the clear intention of the Government on this issue, viz., nobody should be ousted and in one way or the other they have to be accommodated. Further, this is the appropriate place to mention one para of the proceedings of the Director of School Education, dated 25.7.1990 which reads as follows:
In this connection, the Chief Educational Officers are requested to look into the matter personally and instruct the heads of Higher Secondary Schools of all types of managements that part time teachers who were appointed prior to 23.10.1989 in the approved posts should not be ousted.
That being so, there is no meaning in contending that since the appointment of the petitioner is from 23.9.1994 to 30.6.1995 on temporary basis, his services are terminated by the impugned order dated 30.5.1995. This is purely against the policy decision taken by the government and therefore, the said contention of the respondent school cannot at all be entertained and it has no legs to stand.
11. Next it is the contention of the respondent school that it being a minority institution, it never conceded its right in appointing the instructors or others staff members to the 1st respondent or any other authority and therefore the claims of the petitioner that the 2nd respondent appointed the petitioner according to the directions of the 1st respondent is not correct and that the need for part-time instructors in the 2nd respondent institution is in accordance with the policy of the management of the 2nd respondent institution in offering the courses in the Higher Secondary level. This contention is proved to be false even by the contentions made in their counter itself. It is pertinent to note the following contentions made in their counter para-7;
They served the institution purely on temporary contract basis as promulgated by the Education Department of the Government of Tamil Nadu, now and then. I state, on the demands of the temporary part-time instructors, number of Government Orders were issued from time to time and the part time instructors were enjoying those benefits accordingly, they were never given any permanency to the said post, as these posts are purely temporary in nature subject to change under the Government policy in this educational field. Further in this regard it will be appropriate to mention that in the matter of the petitioner since 1984 the 2nd respondent school is following and carrying out the directions of the Government regarding the confirmation, pay, scale etc., of the petitioner herein. The appointment of the petitioner herein in the 2nd respondent's school from 1.9.1984 has been approved by the proceedings of C.E.O., Madurai, dated 18.11.1986. A copy of the said order has been marked to the 2nd respondent school. Even in the appointment order dated 25.6.1991 as already observed by this Court, it has been clearly mentioned therein that as per G.O.No. 712, Education, dated 28.5.1990, the petitioner has been appointed as full time teacher from 1.4.1990 F.N. Further in the same order it has been specifically mentioned that though he has been appointed as full time teacher, it shall be regularise only according to the rules to be framed by the Government in regard to the said post. It is also stated therein that only on the basis of the regularisation his seniority in the post will be fixed. That order dated 25.6.1991 has been approved by the C.E.O., Madurai by proceedings dated 9.11.1991. Moreover after the issuance of GO.No.834, dated 23.9.1994, by its proceedings dated 10.1.1995 the C.E.O., Madurai has directed the third respondent herein to execute the order of the Director of School Education to the effect to bring the double part time vocational teachers and others into the regularised post in the time scale of pay w.e.f., 23.9.1994. It is pertinent to note that only in obedience of the said order, the appointment order of the petitioner has been issued on 19.1.1995 and that appointment order has also been approved by the C.E.O., Madurai by proceedings dated 2.2.1995. Thus, that being so, that is to say all along from 1986 to 1995 each and every step in the appointment, confirmation, full time appointment, time scale fixation etc., relating to the petitioner has been made only on the direction of the Government and when they have been accordingly approved by the Government, it is clear that the 2nd respondent has subjected itself to the jurisdiction and control of the Government in the matter of the appointment of the petitioner herein and his service conditions, it is not now open to the 2nd respondent to claim that as it being a minority institution, it can on its own, terminate the service of the petitioner herein. Further it is significant to note that even admittedly the petitioner herein has been working in the 2nd respondent's school right from 1.9.1984, it has been deliberately concealed in the counter filed by the 2nd respondent school and their counter proceed as if the petitioner herein has been working only from 23.9.1994.
12. The last contention raised by the respondent school to justify the impugned order of termination of the petitioner service is that in the 2nd respondent institution the demand is not sufficient to offer the subject of accountancy and therefore the management of the 2nd respondent institution decided to discontinue the accountancy optional subjects and as such no admissions are made in the plus one class of the Higher Secondary School for the present academic year. Only those who were the present academic year. Only those who were admitted earlier and are appearing for the plus two public examination and are being coached for that subject for the time being. Therefore, from the next academic year, there will not be the optional subject of accountancy in the Higher Secondary Education of the 2nd respondent institution and the same is line with the administrative policy of the 2nd respondent's Minority Educational Institution's management. That cannot at all be accepted in view of the policy decision taken by the Government that is to say proceedings of the Director of School Education, dated 25.7.1990 in the following manner:
In this connection, the Chief Educational Officers are requested to look into the matter personally and instruct the heads of Higher Secondary Schools of all types of managements that part time teachers who were appointed prior to 23.10.1989 in the approved posts should not be ousted.
In this context it is also pertinent to note that in the order of the C.E.O., Madurai, dated 2.2.1995 approving the appointment of the petitioner dated 19.1.1995, the following conditions have been specifically given. It is stated therein that the regularisation of this post of the petitioner will be made after getting permission from the Governments and then he will be allowed annual increments, that as this post is temporarily sanctioned as per the G.O. till 30.6.1995, thereafter, on getting the permission of the Government his pay will be paid continuously, and that if as per (this order if it is considered that there are more than one in vocational education, they can be transferred to any other needy school and in case if such transfer is not possible, he can be permitted to act as additional teacher but in the post of secondary teacher and when the post of vocational teacher arises, then he will be observed in the same. So when the Government had specifically made all the provisions, it is the bounden duty of the 2nd respondent school to act in that manner and it is not open to it to terminate the service of the petitioner with effect from 30.6.1995. In such circumstances, it is the duty of the respondent school to approach the Government and to get permission beyond 20.6.1995 and to retain the petitioner herein in its service. If the school is really going to close the vocational course of accountancy, what prevented it to inform the Government well in advance explaining its position and its inability to retain the petitioner in their school immediately after they got the approval of the Government dated 2.2.1995. So, in these circumstances, for all the foregoing reasons the ground of closing the accountancy vocational course alleged by the respondent school can be considered only as an after thought and an invention for the purpose of this case. Even assuming that reason is bona fide, it is the duty of the 2nd respondent school to explain its position to the educational authorities and to seek alternative arrangement from the in respect of the petitioner.
13. Yet another ground raised by the 2nd respondent school to justify its termination order is that it has not satisfied with the service and conduct of the petitioner during his tenure. This allegation also cannot at all be entertained. Even though the petitioner has been working in the respondents school since 1.9.1984 this allegation is made for the first time in their termination order dated 30.6.1995. Further there is absolutely no iota of evidence to show that there is any complaint regarding the conduct or service of the petitioner. Moreover, the management is unable to show even a single instance of issuing any show-cause notice or memo to the petitioner herein regarding his mis-behaviour or lapse in his duty. That being so, the management is not at all entitled to terminate the service of the petitioner saying that it has not been satisfied with the conduct and service of the petitioner.
14. Thus, from the entire circumstances of this case and in the light of my above discussions, I am of the firm view that viewing from any angle, the impugned order of terminating the service of the petitioner is not at all maintainable and it is against natural justice and liable to be quashed, Equally the appellate order passed by the appellate authority is also devoid of any merits and liable to be set aside.
15. In the result, the writ petition is partly allowed and consequently both the impugned orders in this writ petition are hereby quashed and the 2nd respondent school is hereby directed to reinstate the petitioner herein its service within 60 (sixty) days from the date of receipt of copy of this order, but as a fresh appointment and without any monetary benefits by way of back wages and the 1st respondent herein is also hereby directed to approve the appointment of the petitioner by the 2nd respondent school and also to make all the necessary sanctions and permissions in regard to his appointment within one month from now. However, there will be no order as to costs.