Madras High Court
Tmt.S.Christy vs The Chief Educational Officer on 25 July, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/07/2011
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.(MD)No.3772 of 2008
and
MP(MD)No.1 of 2008
Tmt.S.Christy ..Petitioner
Vs
1. The Chief Educational officer,
Kanyakumari District at Nagercoil,
Kanyakumari District - 629 001.
2. The District Educational Officer,
Kuzhithurai at Marthandam,
Kanyakumari District.
3. The Manager,
Concordia High and Higher Secondary Schools,
Lutheran Primary and Middle Schools,
MELIM Primary Schools,
Lutheran Centre,
Nagercoil,
Kanyakumari District.
4. The Correspondent,
Concordia Higher Secondary School,
Pootteti,
Theruvukkadai Post,
Kanyakumari District 629 157. ..Respondents.
Prayer
Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus directing the respondents 2 to
4 to approve forthwith the appointment of the petitioner in fourth respondent
school as Post Graduate Assistant(Chemistry) w.e.f. 20.12.2006 with all
attendant benefits including arrears of salary and allowances on the basis of
petitioner's representation dated 19.02.2008.
!For Petitioner ... M/s.Issac Mohanlal
^For Respondents ... Mr.D.Muruganandam
1 and 2 Addl.Govt.Pleader
For Respondent-3 ... Mr.S.Wilfred Prakash
For Respondent-4 ... M/s.K.Sreekumaran Nair
:ORDER
The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Mandamus directing the respondent Nos. 2 to 4 to approve the appointment of the petitioner as Post Graduate Teacher(Chemistry)w.e.f. his date of appointment i.e., 20.12.2006, with all consequential benefits.
2.The admitted facts are:
That the petitioner joined the service on 20.12.2006 with the respondent No.4 as Post- Graduate Assistant in Chemistry. The petitioner possess the qualification of M.Sc(Chemistry) with B.Ed degree. The post against which the petitioner is appointed arose on account of the voluntary retirement of Tmt.T.Annie Nirmala. The proposal for release of salary of the petitioner was sent to the District Educational Officer on 29.12.2006. In spite of repeated requests, the respondents till date have not granted approval to the appointment of the petitioner nor they have answered the representation filed by the petitioner.
3. On issuance of notice of the Writ Petition, a counter has been filed, wherein the only objection taken is that her appointment was without approval from the department, therefore it cannot be approved.
4. Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 reads as under:
15. Qualifications, conditions of service of teachers and other persons.-
-(1) The number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by Director of School Education, from time to time, with reference to the academic requirements teacher-pupil ratio and overall financial considerations.
(2)(i) The school committee of every private school shall enter into an agreement with the teacher or other person in Form VII-A or VII-B if the appointment is for a period exceeding three months.
((i-a) The school Committee of every private school shall enter into an agreement with the person appointed as Junior Grade Teacher in Form VII-C)
(ii) Three copies of the agreement shall be executed, one copy shall be furnished to the teacher or other person concerned, the other copy shall be retained by the school committee and the third copy shall be forwarded to the District Educational Officer.
(3) In a regular vacancy, a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, ie., leave vacancy, deputation for training or suspension of the teacher's certificate, a teacher or other person may be appointed for a specific period. In such cases, the agreement to be executed shall be in Form VII-B. (4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
((ii) Appointments to the various categories of teachers shall be made by the following methods:-
(i) Promotion from among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method(i) above.--
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers:
(b)Appointment of teachers from any other school;
(c) Direct recruitment In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule}
(d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in clause (ii) either from the category of Headmasters of High Schools or Teachers' Training Institutes or from the category of Post-Graduate Assistants in academic subjects or Post-Graduate Assistants in Languages provided they possess the prescribed qualifications:
(4-A) Any person employed in the institution specified in column(1) of the Table below, aggrieved by an order issued under sub-rule(4) may prefer an appeal to the authority specified in the corresponding entry on column (2) thereof:--
Institution Authority (1) (2)
Pre-primary, Primary or Middle schools Chief Educational Officer High School(***) or Higher Secondary Joint Director of School Education School(in respect of a person other than (Secondary Education) Headmaster),Post-Graduate Assistant (both Academic and Languages)or physical Director (Teachers' Training Institutes Deputy Director(Teacher Education) Higher Secondary School(in respect of Joint Director of School Education(Higher Secondary). Headmaster, Post-Graduate Assistant(both Academic and Languages or physical Director.
(5) A service register shall be maintained for every teacher or other person, showing among others, the date of appointment, the scale of pay on which he was appointed, the increments given, from time to time, the leave to his credit and the leave granted and other relevant entries like awards and punishments.
((6) The teacher and other persons employed in a private school shall possess the qualification specified in Annexure V) ((6-A) The person appointed as Junior Grade Teacher in a private school shall possess the qualification specified in Annexure V-A). ((7) Every private school, not being a minority school,shall reserve 18 percent of the vacancies in teaching as well as non-teaching staff candidates belonging to Scheduled Castes and Scheduled Tribes.) ((8) Every private school, bot being minority school, shall reserve 50 percent of the vacancies in teaching and as well as non-teaching side for the candidates belonging to Backward Classes (9) (i) The claims of the candidates belonging to Backward Classes, Scheduled Castes and Scheduled Tribes shall also be considered for the remaining 32 percent of unreserved vacancies which are filled on the basis of merit. Where a candidate belonging to Backward Classes, Scheduled Castes or Scheduled Tribes is selected on the basis of merit in the said 32 percentage of unreserved vacancies, the number of percentage, reserved for Backward Classes, Scheduled Castes and Scheduled Tribes, as the case may be, shall not in any way be affected.
(ii) If a qualified candidate belonging to any of the scheduled Castes and Scheduled Tribes or Backward Classes is not available for selection for appointment in the turn alloted for them in the cycle the turn so allotted to the Backward Classes shall lapse and vacancy shall be filed by the next turn in the order of rotation. But, the turn so reserved for Scheduled Castes and Scheduled Tribes shall not lapse and the number of candidates to be selected in that recruitment shall be reduced by the number of Schedules Castes and Schedule Tribes candidates not available for selection against the turn reserved for them the unfilled vacancies reserved for Scheduled Castes and Scheduled Tribes shall be carried over to the next recruitment shall be made first for the carried over turn and then the normal recruitment shall be made first for the carried over turn and then the normal rotation shall be followed. If qualified Schedules Castes or Scheduled Tribes are not available even then, the carried over turn shall lapse and the vacancy shall be filed by the next turn in the order of rotation.) This rule is parimeteria to Rule 11 of the Tamil Nadu Private Colleges(Regulation) Rule, 1976. This rule was interpreted by this Court in W.A.Nos.93 and 94 of 2008 decided on 06.01.2010, wherein, it has been held that for any sanctioned post no prior approval is necessary. The relevant portion of the judgment reads as under:
" The learned Single Judge, has dealt with both the above said writ petitions together and by following the decision of this Court rendered in W.P.No.28396 of 2004, dated 299.03.2006, the learned Judge has categorically held that once appointment of a person in a sanctioned post is made in accordance with law, no prior permission from the Director of Collegiate Education is required. While holding so, the learned Judge has quashed the impugned proceedings dated 28.02.2997 and directed the appellants to approve the writ petitioner's (C.Karunakaran) appointment from 02.07.1990 with all consequential benefits."
5. In view of the settled law by this Court, the stand taken by the respondent in not considering the case of the petitioner for granting approval of the petitioner is not sustainable in law, as on true interpretation of rule 15, only conclusion which can be drawn is, that for appointment to sanctioned post, no prior approval is necessary, nor it can be a ground to deny the approval to appointment of a qualified person.
6. The Writ Petition is accordingly allowed, and a writ in the nature of Mandamus is issued directing the respondents to forthwith grant the approval of appointment of the petitioner with all consequential benefits, in any case not later than two months of the receipt of certified copy of this order.
7. Consequently, connected Miscellaneous Petition is closed. No costs.
vsn To
1. The Chief Educational officer, Kanyakumari District at Nagercoil, Kanyakumari District - 629 001.
2. The District Educational Officer, Kuzhithurai at Marthandam, Kanyakumari District.