Madras High Court
P.Arokiam vs The Director Of School Education on 11 April, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2012
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.No.3494 of 2008
1 P.AROKIAM [ PETITIONER ]
Vs
1 THE DIRECTOR OF SCHOOL EDUCATION
COLLEGE ROAD
NUNGAMBAKKAM
CHENNAI 6.
2 THE CHIEF EDUCATIONAL OFFICER
NAGERCOIL
KANYAKUMARI DISTRICT.
3 THE DISTRICT EDUCATIONAL OFFICER
KUZHITHURAI
KANYAKUMARI DISTRICT.
4 THE REGIONAL INSPECTOR OF
PHYSICAL EDUCATION
NAGERCOIL
KANYAKUMARI DISTRICT.
5 THE CORRESPONDENT
ST.ALOYSIUS HIGHER SECONDARY SCHOOL
MARTHANDAMTHURAI
KOLLAMKODU P.O.
KANYAKUMARI DISTRICT
PIN CODE 629 160 [ RESPONDENTS ]
Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent in Na.Ka.No.94373/A5/E1/2007 dated 5.12.2007 and quash the same and consequently direct the respondents to regularize the service of the petitioner as Games Marker at 5th respondent school from 9.1.1995 and to pay time scale of pay from that date as per G.O.Ms.No.527 dated 30.12.1997 and absorb him as Office Assistant as per Government letter No.235 dated 23.11.2006 and also as per letter of 1st respondent in Na.Ka.No.07348-01-R8 dated 24.1.2007.
For Petitioner :: Ms.P.Mahalakshmi
For Respondents 1 TO 3 :: Mr.M.C.Swamy, Spl.G.P.
O R D E R
In this Writ Petition, the petitioner seeks to challenge an order passed by the Director of School Education dated 5.12.2007. By the impugned order, the Director of School Education informed the petitioner that he was appointed as a Marker by the 5th respondent St.Aloysius Higher Secondary school and paid Rs.300/- as salary from and out of special Sports Fund created by the Higher Secondary School. The said appointment has been made unilaterally by the management and the Government had already issued a letter clarifying the earlier order passed by the State Government that G.O.Ms.No.527, School Education Department dated 30.12.1997 will not apply to any new post of Markers and the said G.O was issued only to regularise the services of the existing Markers whose demands were considered by the State Government. The said order of the Director came to be passed on the petitioner's earlier Writ Petition being W.P.No.29110 of 2007 dated 5.9.2007. In that Writ Petition, this Court directed the respondents to consider the petitioner's representation dated 13.7.2007. The contents of the petitioner's representation are not known, as the copy of the said representation is not enclosed in the typed set of papers. It is suffice to state that the petitioner having been appointed by the 5th respondent School seeks for a permanent appointment as a Marker and relying the G.O passed by the State Government in G.O.Ms.No.527 dated 30.12.1997.
2. When the Writ Petition came up on 11.2.2008, this Court directed the learned Government Pleader (Education) to take a notice. Subsequently, it was admitted on 6.3.2008. Pending the Writ Petition, this Court declined to grant any interim injunction and posted the main Writ Petition for final hearing.
3. On notice from this Court, the District Educational Officer, Kuzhithurai, Kanyakumari District, namely the 3rd respondent has filed a counter affidavit dated 2.7.2008. In the counter affidavit, it is clearly stated that the G.O.Ms.No.525 sanctioning the posts in terms of the students' strength has no application to the post of Marker. In fact, G.O.527, wherein and by which the existing Markers who have been working for long number of years were sought to be regularised so that they will have some progress and the said G.O.contains the Annexures 1 and 2 specifying the names of the Markers and also the Schools in which they are working. A perusal of the G.O.527 itself will show it is only an one time measure where the State Government gave a benefit in respect of 227 Markers who are working in various Local Bodies and Government Schools. Para 4 of the said G.O. shows the incumbent of these posts, thereby meaning persons who are holding the posts have been identified and only for them the relief has been granted.
4. However, the learned counsel for the petitioner in this case relied upon the order of the appointment given by the School, appointing him as a Marker as well as the approval given by the Regional Inspector of Physical Education dated 24.2.2002. A perusal of the order found at page 6 clearly shows that the amount for payment will have to be borne out from the Special Sports Fund. There is nothing on record to show that ever there was a sanctioned post or the person was appointed as against the sanctioned post after getting prior approval from the competent authority as required under Rule 15(1) of the Tamil Nadu Recognized Private Schools (Rugulation) Rules, 1974.
5. The said Rule came to be interpreted by a judgment of the Supreme Court in State of Tamil Nadu and others Vs. Amala Annai Higher Secondary School reported in 2009 (9) SCC 386. In paragraphs 11 to 15 of the said judgment, the Supreme Court observed as follows:
11.Secondly, insofar as GOMs No.340 dated 1-4-1992 is concerned, it is not attracted at all. GOMs No.340 dated 1-4-1992 issued by the Education Department mentions:
"Accordingly, the following staffing pattern, was recommended by the Committee for deciding the eligibility for post for the schools in question (opened in 1987-1988 and earlier)... "
Thus, GOMs No.340 dated 1-4-1992 containing norms for sanction of posts is applicable to the High Schools opened in 1987-1988 and earlier. In the present case, the School was upgraded to High School in 1988-1989.
12.Thirdly, the Division Bench as well as the Single Judge overlooked and ignored sub-rule (2) of Rule 6 of the Rules, 1977 which reads:
"6.(2) Payment of monthly staff grant shall be made only in respect of qualified and admissible teachers actually employed in minority schools whose appointments have been approved by the authorities concerned according to the number of posts sanctioned to the institution concerned."
Admittedly, in the present case, the management of the School appointed Ms.Rosary as Junior Assistant to a non-sanctioned post. The explanation of the management that she was appointed in anticipation of orders from the competent authority hardly merits acceptance.
13.Fourthly, as per the norms issued in relevant GOMs the strength of the School during 1990-1991 was only 300 and above while the students' strength of the School during 1990-1991 was only 281. As a matter of fact, it is not even the case of the management that during 1990-1991, the student strength was 300 or more. The student strength during 1993-1994 and subsequent years has no relevance. It is here that the High Court fell into a grave error because what was important under the relevant GOMs was that the student strength must have been 300 or more during the years 1988-1989, 1989-1990 and 1990-1991.
14.Fifthly, the reliance placed by the High Court on GOMs No.245/Education dated 21-2-1970 is misplaced inasmuch as the said G.O. applied to clerks who were already employed in and around the year 1964 and has no application to a Junior Assistant appointed to a non-sanctioned post in 1988-1989.
15.Last but not the least, the High Court erred in directing the present Appellant 1 to sanction one post of Junior Assistant to Respondent 1, AAHS School from 1-6-1994 overlooking and ignoring that creation and sanction of posts is the prerogative of the executive and the courts cannot arrogate to themselves a purely executive power.
6.Subsequently, a similar question also came up before the Supreme Court in Kolawana Gram Vikas Kendra Vs. State of Gujarat and others reported in JT 2009 (13) SC 581 (judgment passed by Sirpurkur,J). In paragraphs 6 to 8, the Supreme Court observed as follows:
"6.In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly, whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter affidavit. Para 3 of the said affidavit reads as under:
"Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed."
7.From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also.
8.In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals. However, Mr.Ahmadi raised another point saying that if the prior approval or the no objection certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent authority to issue the no objection certificate within the time provided in the said circular which is of seven days. Of course, if there are any objections, the authority will be justified to take some more time within the reasonable limits."
Therefore, the Supreme Court held that even in respect of minority Schools, they have to seek prior approval before filling up the posts.
7. In the present case as already held there was no sanctioned post of Marker. Secondly assuming that such a post was sanctioned to the 5th respondent School, even for filling up the said post, prior approval of the competent authority is required.
8. In the counter affidavit filed by the respondent, it is stated that appointment of the petitioner was not approved either by the 2nd respondent or 3rd respondent, namely, Chef Educational Officer, Nagercoil or the District Educational Officer, Kuzhithurai. It is also further stated that the Regional Inspector of Physical Education is not competent person either under the Act or under the Rules for granting any such approval and the only authority is the Chief Educational Officer. Rule 15(1) of the Tamil Nadu Recognised Private Schools (Regulation) Rules clearly speaks that the number of Teachers or other persons employed in private School shall not exceed the number of posts sanctioned by the Director of School Education from time to time with reference to academic requirements, the Teacher-pupil ratio and the overall financial consideration. Therefore, in the absence of any legal legal or enforceable right on the side of the petitioner and there being no obligation on the part of the State, the writ petition filed by the petitioner is misconceived and accordingly it stands dismissed. No costs.
ajr To 1 THE DIRECTOR OF SCHOOL EDUCATION COLLEGE ROAD NUNGAMBAKKAM CHENNAI 6.
2 THE CHIEF EDUCATIONAL OFFICER NAGERCOIL KANYAKUMARI DISTRICT.
3 THE DISTRICT EDUCATIONAL OFFICER KUZHITHURAI KANYAKUMARI DISTRICT.
4 THE REGIONAL INSPECTOR OF PHYSICAL EDUCATION NAGERCOIL KANYAKUMARI DISTRICT.
5 THE CORRESPONDENT ST.ALOYSIUS HIGHER SECONDARY SCHOOL MARTHANDAMTHURAI KOLLAMKODU P.O. KANYAKUMARI DISTRICT PIN CODE 629 160