Madras High Court
D.Devaprakash Gnanadurai vs The Director Of School Education on 26 November, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/11/2010 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN W.P.(MD)No.2165 of 2009 and M.P.(MD).Nos.1 to 3 of 2009 and W.P.Nos.11338, 11345 and 11348 of 2008 and M.P.(MD).Nos.1 to 3 of 2008 W.P.No.2165 of 2009 D.Devaprakash Gnanadurai ... Petitioner vs 1.The Director of School Education College Road, Chennai-600 009. 2.The District Elementary Educational Officer Sivagangai, Sivagangai District. 3.The Additional Assistant Elementary Educational Officer, Thiruppattur Sivagangai District. 4.The Secretary V.K.K.Middle School Avinippatti, Thiruppattur-630 205 Sivagangai District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, call for the records relating to the impugned proceedings issued by the 1st respondent Director of School Education in na.Ka.No.30687/D/E/2004, dated 15.06.2007, the subsequent proceedings in Na.Ka.No.30687/D/E2/2004, dated 14.08.2007 and the consequential proceedings issued by the 3rd respondent Additional Assistant Elementary Educational officer in O.Mu.No.2704/Aa1/08 dated 02.01.2009 (returning the proposal for approval), Quash the same and further direct the 2nd respondent District Elementary Educational Officer to approve forthwith the appointment of the petitioner as BT Assistant (Science) w.e.f. 20.10.2008 with all attendant benefits. W.P.No.11338 of 2008 The Superintendent of Schools R C Diocese of Palayamkottai, Thembavani Thottam, Tirunelveli-627 011. ... 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 Director of Elementary Education College Road, Chennai - 600 006. 4.The Chief Educational Officer, Tirunelveli, Tirunelveli District- 627 009. 5.The Chief Educational Officer, Tuticorin, Tuticorin District- 628 002. 6.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District - 627 001 7.The District Elementary Educational Officer, Tuticorin, Tuticorin District - 628 002. 8.The District Educational officer, Kovilpatti, Tuticorin District - 628 501. 9.The District Educational Officer, Tirunelveli- 627 001. Tirunelveli District. 10.The District Educational Officer, Cheranmahadevi at Tirunelveli Tirunelveli District- 627 001. 11.The District Educational Officer, Thenkasi - 627 811 Tirunelveli District. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, call for the records relating to the impugned proceedings issued by the 2nd respondent Director of School Education in na.Ka.No.30687/D/E2/2004, dated 15.06.2007 and the subsequent proceedings in Na.Ka.No.30687/D/E2/2004, dated 14.08.2007 quash the same in so far as the schools under the petitioner management are concerned (List of schools under the petitioner annexed herewith). W.P.No.11345 of 2008 The Superintendent of Schools R C Diocese of Palayamkottai, Thembavani Thottam, Tirunelveli-627 011. ... 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 Director of Elementary Education College Road, Chennai - 600 006. 4.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District - 627 001 5.The Additional Assistant Elementary Educational Officer, Kelapavoor Range at Pavoorchatram, Tirunelveli District - 627 808. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, call for the records relating to the impugned proceedings issued by the 2nd respondent Director of School Education in na.Ka.No.30687/D/E2/2004, dated 15.06.2007 and the subsequent proceedings in Na.Ka.No.30687/D/E2/2004, dated 14.08.2007 and the consequential order issued by the 4th respondent District Elementary Educational Officer in O.Mu.No.8334/A3/08 dated 08.11.2008 and the 5th respondent Additional Assistant Elementary Educational officer in A.Thi.Mu.1393/A1/08 dated 14.11.2008 (returning the approval proposal) and quash the same in so far as the petitioner-school is concerned and further direct the 4th respondent District Elementary Educational officer to approve forthwith the appointment of Tmt.C.Elizabeth as BT Assistant (Middle Grade Graduate teacher) (History) w.e.f. 13.06.2008 and Thiru.M.Samuel Antony as BT Assistant (Middle Grade Graduate teacher) (Science) w.e.f. 13.06.2008 with all attendant benefits. W.P.No.11348 of 2008 The Superintendent of Schools R C Diocese of Palayamkottai, Thembavani Thottam, Tirunelveli-627 011. ... 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 Director of Elementary Education College Road, Chennai - 600 006. 4.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District - 627 001 5.The Additional Assistant Elementary Educational Officer, Sankarankovil, Tirunelveli District - 627 756. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, call for the records relating to the impugned proceedings issued by the 2nd respondent Director of School Education in Na.Ka.No.30687/D/E2/2004, dated 15.06.2007 and the subsequent proceedings in Na.Ka.No.30687/D/E2/2004, dated 14.08.2007 and the consequential order issued by the 4th respondent District Elementary Educational Officer in O.Mu.No.6648/A3/08 dated 07.11.2008(returning the approval proposal) and quash the same in so far as the petitioner-school is concerned and further direct the 4th respondent District Elementary Educational officer to approve forthwith the appointment of Tmt.M.Muniammal @ Mary Shanthi as BT Assistant (Middle Grade Graduate teacher) (Science) w.e.f. 05.06.2008 with all attendant benefits. !For Petitioner ... Mr.Isacc Mohanlal in all writ petitions ^For Respondents ... Mr.K.Balasubramanian in all writ petitions Additional Govt. Pleader :COMMON ORDER
As the issue is common in all the writ petitions, with consent of parties all the writ petitions were taken up together and common order is passed.
2.The petitioner in W.P.Nos.11338, 11345 and 11348 of 2008 are the Superintendent of schools R.C Diocese of Palayamkottai, Tirunelveli-11 and the petitioner in W.P.2165 of 2009 is one D.Devaprakash Gnanadurai.
3.The petitioner in W.P.No.11338, 11345 and 11348 of 2008 is a Roman Catholic Diocese owns and administers 105 recognised schools from Primary to Higher Secondary level as a corporate body in the Districts of Tirunelveli and Tuticorin. The Roman Catholic Diocese of Palayamkottai is a recognised religious Minority Institution and therefore, they are entitled to appoint teachers of their choice and the authorities have to grant approval. On the basis of that those teachers are appointed by the petitioners, who are having required qualifications. The second respondent by proceedings dated 26.10.2004 and 13.01.2005 introduced a subject roster for appointment of teachers in Middle Grade Graduate teacher post and prescribed subject roster. The said proceedings were challenged in W.P.No.7717 of 2006 and this Court by an order dated 18.10.2006 quashed those two proceedings referred to above and therefore the authorities cannot insist that the subject roster is to be followed in the appointment of teachers. It is further submitted that in respect of vacancies caused by the retirement or transfer of teachers in the schools administered by the petitioners, the petitioners appointed qualified teachers for that purpose and sought the approval of the respondents for the appointment and in the above three writ petitions, the second respondent by proceedings dated 15.06.2007 and 14.08.2007 refused to grant approval stating that the appointments were made contrary to G.O.Ms.100, School Education dated 27.06.2003 and appointments were also made without following the subject roster and hence, appointments cannot be approved. Therefore, the petitioner challenged the orders of the respondents in refusing to grant approval to the appointments made by the petitioner in these three writ petitions.
4.In W.P.No.2165 of 2009, the petitioner is working as a teacher in the fourth respondent school, it is a recognised and aided private school and the petitioner is working as a BT Assistant (Science). He was appointed by the fourth respondent on 20.10.2008 against the permanent and regular vacancy and after obtaining necessary permission from the first respondent to fill up the vacancy and after calling for the candidates through employment exchange as well as paper publication. Thereafter, the fourth respondent sent a proposal for the approval of the petitioner as BT Assistant and the first respondent by proceedings dated 15.06.2007 and 14.08.2007 rejected the approval stating that G.O.(MS).100 (School(Budget)Education),dated 27.06.2003 was not followed and subject roster was also not followed. Therefore, in all the above four writ petitioners challenged the rejection of approval of the teachers by the first respondent.
5.Mr.Isaac Mohanlal, learned counsel for the petitioners in all the writ petitions submitted that the matter is no longer than res Integra and this Court in the Judgment rendered in 2006(5) CTC 504 in W.P.(MD).No.7717 of 2006 in the matter of (The Corporate Manager, CSI Corporate Schools, CSI Diocese of Kanyakumari, No.71-A, Dennis Street, Nagercoil-629 001 vs. The State of Tamil Nadu, rep. by its Secretary, Department of School Education, Fort St. George, Chennai-600 009 and others, held that the Educational Authority cannot insist the Subject Roster to be followed and the same is also in violation of Tamil Nadu Recognised Private School (Regulation) Act, 1973 and Rules, wherein it is not stipulated anywhere that the School should follow Subject Roster. It is also held in that judgment that even G.O.No.125 dated 12.11.2003, which is governing the appointment of Middle Grade Graduate teachers upto standards 6 to 8 and it has not been stated that subject roster should be followed. Therefore, the learned judge has held that the authority has no jurisdiction to issue the such circular that subject roster should be followed. The above judgment was also approved by the Division Bench in W.A.No.1198 of 2007 dated 20.09.2007.
6.Mr.Isaac Mohanlal, learned counsel for the petitioners further submitted that the judgment reported in 2004 Writ L.R. 248 in the matter (Viveka Poorana Aided Elementary School, rep. by its Secretary R.Aravamudhan Cuddalore Old Town Cuddalore vs. The Director of Elementary Education Madras and others) this Court has held that G.O.Ms.100 applies only to the schools maintained by the Panchayat Union and the Government Schools and the said Government Order will not govern the private schools and with respect to those schools separate order has to be passed. He therefore submitted that the respondents are not correct in refusing to approve the appointment and therefore, the order of the respondent is liable to be set aside and the first respondent must be directed to approve the appointment made by the petitioners in W.P.No.11338 , 11345, 11348 of 2008 and grant approval to the appointment of the petitioner in W.P.No.2165 of 2009.
7.Mr.K.Balasubramanian, learned Additiona1 Government Pleader reiterated the allegations made in the counter affidavit and submitted that the order passed by the Director of School Education are valid and he further submitted that as per the G.O.(ms). 144 School Education dated 04.07.2008, the G.O.(ms).No.244 School Education dated 22.09.2007 was made applicable to the Government aided schools and subject roster has to be followed. The learned Additiona1 Government Pleader therefore submitted that even as per the judgment reported in 2004 W.L.R. 2489(cited supra), when the Government issued a separate Government Order stating that the circular stated in G.O.(Ms).100 is applicable to Government Aided Schools and necessary (Government Order) was passed in G.O.(Ms).No.144 School Education, dated 04.07.2008 and therefore, the impugned order are valid in law and cannot be challenged.
8.Heard the learned counsel for the petitioner as well as the learned Additional Government Pleader.
9.It is true that under G.O.(Ms).No.144 School Education, dated 04.07.2008, it has been made clear that the G.O.(Ms).No.244 School Education, dated 22.09.2007 is applicable to Government Aided Schools and as per the judgment of this Court 2004 W.L.R. 2489(cited supra) G.O.Ms.No.100 dated 27.06.2003 will not be applicable to schools receiving aid from the Government and for that Schools, separate order has to be passed. Therefore, by virtue of the G.O.Ms.144 dated 04.07.2008 the G.O.Ms.No.100 dated 27.06.2003 is also made applicable to the aided schools. It is not in dispute that the schools managed by the petitioners in W.P.No.11338, 11345, 11348 of 2008 and the fourth respondent in W.P.No.2165 of 2009 are Government Aided Schools. But the issue is whether subject roster has to be followed. This issue was dealt by this Court in the judgment (The Corporate Manager, CSI Corporate Schools vs. The State of Tamil Nadu) reported in 2006(5) CTC page 504 and in that judgment, it has been stated that insistence of following subject roster is against the provisions of Tamil Nadu recognised Private Schools Regulation Act and also G.O.Ms.125 dated 12.11.2003 and this judgment was confirmed in W.A.No.1198 of 2007 dated 20.09.2007 and therefore, as per the judgment of the Division Bench of this Court the Director of School Education or other educational authorities cannot insist, subject roaster should be followed in the appointment and on that ground they cannot refuse to approve the appointment in all these case. The appointments are refused to be approved only on the ground that subject roaster was not followed. Hence, the impugned orders are against the judgment rendered by this Court and therefore, they are liable to be set aside and accordingly are set aside and the respondents are directed to grant approval to the appointments made by the petitioners in W.P.No.11338,11345 and 11348 of 2008 and also grant the approval of the petitioner in respect of W.P.No.2165 of 2009. The writ petitions are allowed.
am To
1.The Director of School Education College Road, Chennai-600 009.
2.The District Elementary Educational Officer Sivagangai, Sivagangai District.
3.The Additional Assistant Elementary Educational Officer, Thiruppattur Sivagangai District.
4.The Secretary V.K.K.Middle School Avinippatti, Thiruppattur-630 205 Sivagangai District.
5.The Secretary, The State of Tamil Nadu Department of School Education, Fort St. George, Chennai - 600 009.
6.The Director of Elementary Education College Road, Chennai - 600 006.
7.The Chief Educational Officer, Tirunelveli, Tirunelveli District- 627 009.
8.The Chief Educational Officer, Tuticorin, Tuticorin District- 628 002.
9.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District - 627 001
10.The District Elementary Educational Officer, Tuticorin, Tuticorin District - 628 002.
11.The District Educational officer, Kovilpatti, Tuticorin District - 628 501.
12.The District Educational Officer, Tirunelveli- 627 001.
Tirunelveli District.
13.The District Educational Officer, Cheranmahadevi at Tirunelveli Tirunelveli District- 627 001.
14.The District Educational Officer, Thenkasi - 627 811 Tirunelveli District.
15.The Additional Assistant Elementary Educational Officer, Kelapavoor Range at Pavoorchatram, Tirunelveli District - 627 808.
16.The Additional Assistant Elementary Educational Officer, Sankarankovil, Tirunelveli District - 627 756.