Madras High Court
R.Keerthivarman vs The District Education Officer on 27 February, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.02.2013 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.22286 of 2012 & M.P.Nos.1 and 2 of 2012 R.Keerthivarman .. Petitioner Vs. 1. The District Education Officer North Chennai District Dr.Ambedkar School campus Egmore, Chennai 8 2. The Secretary P.T.Lee Chengalvarayar Naicker Higher Secondary School General Collins Road Choolai Chennai 112 3. The Headmistress P.T.Lee Chengalvarayar Naicker Higher Secondary School General Collins Road Choolai Chennai 112 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records from the 2nd respondent relating to the order Proc.No.P.T.Lee CNT/a3.1371/2011-1 dated 13.7.2012 and quash the same insofar as the petitioner is concerned and direct the respondents to reinstate the petitioner with continuity of service backwages and other attendant benefits and regularize his services with effect from 4.7.2008 and award cost. For Petitioner :: Mr.S.Ayyathurari For Respondents :: Mr.V.Subbiah, Spl.GP for R1 Mr.M.Udyakumar for R2 & R3 O R D E R
The petitioner in this Writ Petition is seeking to challenge an order dated 13.7.2012. By the said communication, the petitioner was informed that his service as Graduate Assistant in Social Science is no longer required by the Trust. He was also informed that for the Higher Secondary Courses, namely +1 and +2, the classes have been closed as it became unviable and therefore there is no requirement for the petitioner to continue in the School.
2. When the matter came up on 17.8.2012, this Court ordered notice to the respondents. In the application for interim relief, no relief was granted. Subsequently, on notice from this Court, a counter affidavit has been filed by the 1st respondent District Educational Officer, North Chennai dated 24.1.2013 and an additional counter affidavit has also been filed by the same respondent on 14.2.2013.
3. On behalf of the Trust, a detailed counter affidavit has been filed dated 18.2.2013. The Headmistress, who was made as 3rd respondent to the Writ Petition, has made an endorsement in the counter affidavit filed by the Trust stating that she adopts the counter affidavit filed by the 2nd respondent. The petitioner also filed additional typed set in support of his arguments. The Minutes of the Trust Board Meeting, recording the decision of the Trust for terminating the service, was also produced. The petitioner also filed an additional affidavit dated 30.1.2013 together with supporting affidavit given by 5 Trustees dated 25.12.2012.
4. Heard the arguments of Mr.S.Ayyathurai, learned counsel for the petitioner, Mr.V.Subbiah, learned Special Government Pleader for the 1st respondent and Mr.M.Udayakumar, learned counsel for the 2nd and 3rd respondents.
5. Before dealing with the allegation made by the petitioner, it must be decided as to the nature of appointment of the petitioner who has got appointed in the School, so that his right can be determined in terms of the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 and the Rules framed thereunder.
6. Initially the 2nd respondent Trust is running a High School starting from Standard 6th to Standard 10th. Subsequently, they decided to bring in Higher Secondary Section for which temporary recognition was granted by the Department and the staff for manning Higher Secondary courses were appointed by the Trust and not sanctioned by the Government.
7. However, subsequent to the starting of the Higher Secondary Section, the Trust Board passed a Resolution on 10.6.2011 abolishing the Higher Secondary Courses on the ground that the pass percentage of the School was ranging from 5% to 20% and it was unnecessary to run economically unviable Higher Secondary Section. The staff who were engaged in Higher Secondary Section were given due termination and they have also left the service of the School, except in one case of Mythili, who has been inducted to teach High School Section.
8. Insofar as the petitioner is concerned, pursuant to the advertisement made in the Hindu Newspaper, on 4.5.2008 calling for applications for various posts including the post of Graduate Teacher in Social Science, the petitioner made an application. The Trust Board by a Resolution dated 30.6.2008 decided to appoint the petitioner. Pursuant to the same, the 2nd respondent by an order dated 2.7.2008 appointed the petitioner as B.T.Teacher in Social Science in the School and his salary was fixed at Rs.5500/- per month and it was also stated that the appointment was purely temporary and he can be terminated at any time without any notice and without assigning any reason.
9. At no point of time, the Trust got approval from the Department for filling up any vacant post in terms of Rule 15(1) of the Tamil Nadu Private Schools (Regulation) Rules, 1974 and subsequent to his appointment, no approval from the Department was obtained since the post was unaided post, which is purely an appointment made by the management.
10. In view of the abolition of the Higher Secondary Section, and in view of the reduction of students' strength in the 9th and 10th Standards, the Trust decided to terminate the service of the petitioner. The decision to terminate the service was taken in the Board Meeting held on 13.7.2012. It was attended by 9 Trustees and was signed by 9 Trustees. In the affidavit an allegation was made that the five Trustees did not approve the said Resolution and in the affidavit filed by the Trustees dated 25.12.2012, it was stated that the Chairman refused to record and receive the written objections and the Chairman being a retired Judge, they were not in a position to take strong and effective legal action against each of the violations and their signatures have been obtained as per the direction of the Chairman in order to record their participation in the Trust Board Meetings and not otherwise.
11. In order to verify the veracity of the allegations made by the Trustees, this Court directed the original Minutes of the Trust Board to be produced before this Court. Accordingly, Mr.M.Udayakumar, produced the original minutes and also the photostat copy of the relevant files.
12. It is seen that the Trustees have been given the Minutes and they also signed in the front page indicating their attendance in the Meeting and subsequently after the finding of the Resolution, each of them have affixed their signatures, which was finally countersigned by the Chairman. Therefore, this Court is not inclined to accept their contention that the signature has been obtained only for their presence and not for the resolution. When it is pointed out, the learned counsel for the petitioner Mr.S.Ayyathurai stated that he is not relying upon the affidavit filed by the Trustees and this Court is inclined to ascertain the case on the basis of the materials available. Since the Writ Petition is dealt with on factual basis, this Court is not going into the maintainability of the Writ Petition against the Trust.
13. In the counter affidavit filed by the 1st respondent dated 24.1.2013, though it was initially stated that the management has violated the provisions of the Tamil Nadu Private Schools (Regulation) Act while terminating the service of the petitioner that the termination is not valid in law, in the subsequent additional affidavit, the stand of the Department was withdrawn and it was stated that the School was recognised only upto 10th Standard and above 10th Standard, the salary and allowances of the staff were met by the Trust management and appointment and termination of the Teachers appointment for the Standard XI and XII are taken by the Trust Management and the petitioner has no locus standi to question the trust management and the Act is only applicable to the recognized Standard, i.e., only upto 10th Standard.
14. Taking advantage of this, the learned counsel for the petitioner contended that his appointment is only for Graduate Assistant to Teach High School students and therefore there is no impediment for his continuance in the School and the abolition of the +2 Course has no relevance to the case on hand.
15.He also submitted that one Singarayar, who was appointed as Craft Teacher and is having only B.A.(History), was allowed to teach 10th Standard in Social Science, English and Tamil. If that is so, the unqualified Teacher to teach the classes was totally prohibited by the provisions of the Act and therefore, the decision of the management was illegal and the petitioner is entitled to continue in service.
16. It is under these circumstances, this Court directed the Trust to file the statement regarding the staff strength and students strength, total number of posts sanctioned by the Government and the Teachers who became retrenched on account of abolition of Higher Secondary Course. Accordingly, a statement has been filed to show the number of persons working in the School. In respect of the High School, teaching staff sanctioned for the Aided Section is 11. The staff strength in respect of Aided Section from Standard 6th to Standard 10th (Selected by School Committee and got approved by the Department) is 6. There are totally 5 vacancies in the High School Section. The students strength for Standard 6th to Standard 10th is as follows:
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S.No. Standard Strength
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1 6th 38 2 7th 39 3 8th 42 4 9th 45 5 10th (2 section) 31+32 ----------- Total 227 ------------------------------------------------------------
17. It is also stated that the Teachers who have been appointed by the management Trust for running the Higher Secondary Section, have been terminated and all five of them left the service on account of the retrenchment. Insofar as the 9th Standard is concerned, it initially had two sections, with students strength of 22 and 25 respectively. The total students' strength available for 9th Standard was 47. But, due to want of students' strength, these two sections were merged into one section, as the competent authority had prescribed the norms stating that the norms should be more than 35 students and less than 60 students and therefore due to merger of these two sections into one Section in 9th Standard, there is one more surplus Teacher in Aided Section.
18. It was further pointed out that one Mythili, who joined service on 24.1.2007, appointed as unaided staff and having studied M.Sc., B.Ed., M.Phil (Geography) and B.A(History), after the abolition of +2 Course, has been inducted to teach High School section. It is also stated that the said Mythili is senior to the petitioner and therefore there is no question of any junior to the petitioner having retained in service.
19. In the light of these facts, it has to be seen whether the petitioner has made out any case to impugn the order passed by the Trust management. It must also be noted that in the 10th Standard, there are two sections, which are having 31 students and 32 students respectively and after the end of this academic year, it has become vanished and therefore there is no wrong for the Trust in deciding to reorganize its work force. The petitioner being appointed by the Trust cannot claim that he is entitled to continue in service as if he is coming within the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1974.
20. In Rule 15 of the Tamil Nadu Private Schools (Regulation) Rules, as already stated, the number of teachers and other persons employed in a private School shall not exceed the number of posts, sanctioned by the Director of School Education from time to time, with reference to the academic requirements, teacher-pupil ratio and overall financial considerations. Under Section 18(1)(b) of the Act, the appointment of a Teacher in a Private School has to be done by the School Committee constituted under Section 15 of the said Act.
21. Admittedly, the petitioner was never appointed by the School Committee and no approval has been obtained from the Department. He is not an aided Staff and he was getting only consolidate salary and not paid time scale of pay granted to the aided School Teachers. The petitioner's appointment is based upon the conditions imposed in the order of appointment, which clearly states that his appointment on temporary basis could be terminated at any time. In view of the fact that already one post of aided staff itself has become surplus, the petitioner cannot seek to continue in service stating that one Singarayar who has been allowed to teach though he was unqualified staff. It is stated that the said Teacher came on redeployment, on his being held as surplus in Binny High School, Chennai, redeployed to P.T.Lee Higher Secondary School, Chennai.
22. In any event, the statement given by the Trust is that Singarayar has been asked to take classes as he is redeployed. This cannot be done in view of the prohibition made under Section 20 of the Act that no person who does not possess the qualifications prescribed under Section 19 shall be appointed as Teacher in any private School. Therefore, the management cannot now permit the said Singarayar to teach High School section unless he is qualified in the Teacher Education. Even assuming that Singarayar is denied further Teaching classes, the petitioner cannot take advantage of the same, since he is purely appointed by the management with the terms and conditions stipulated in the order of appointment and as already indicated, in view of the merger of 9th Standard and also the possibility of 10th Standard students being passed out in this academic year, it is open to the Trust to reduce its own management staff and run the School in the manner which according to them is proper method of running the School. The Writ Petition stands dismissed with the above direction given in respect of Singarayar. However, there will be no order as to costs. The connected Miscellaneous Petitions are closed.
ajr To
1. The District Education Officer North Chennai District Dr.Ambedkar School campus Egmore, Chennai 8
2. The Secretary P.T.Lee Chengalvarayar Naicker Higher Secondary School General Collins Road Choolai Chennai 112
3. The Headmistress P.T.Lee Chengalvarayar Naicker Higher Secondary School General Collins Road Choolai Chennai 112