ORDER
P. Sathasivam, J.
1. The School Committee of Balaguru Vidyasalai, Vennilingapuram, has filed the above three writ petitions. Since all are interconnected the same may be disposed of by the following common order.
2. The facts leading to filing of three writ petitions are briefly stated hereunder: The petitioner School is an aided Primary School recognised in the year 1953. One Mrs. S. Sornam was the Headmistress of the said School. The petitioner School was founded by one Balu Thevar and the Secretary of the School Committee by name Sivasubramaniam is one of the sons of Balu Thevar and the Headmistress Mrs. S. Sornam was not co-ordinating with the School Committee and was not able to interact properly with the other teachers. It is contended that, she did not attend the School from 19.2.1994. On 19.2.1994, she applied for medical leave by enclosing medical certificate for 59 days. The leave was extended by another 59 days on the ground that she was suffering from Infective Hepatitis. Hence, she was directed to appear before the Medical Board for examination and the Medical Board ratified the medical leave from 19.4.1994 to 15.7.1994 and recommended leave for 16 days from 16.7.1994. Even thereafter she did not report for duty. The repeated reminders and requests made by the petitioner to the Headmistress to produce proper medical certificate were of no avail. The petitioner also wrote a letter to the District Educational Officer for Primary Schools, Tirunelveli on 14.10.1994 Complaining about the conduct of the second respondent (Headmistress) stating the above facts. The petitioner has also written a letter dated 6.5.1994 to her, directing her to receive her salary for March and April, 1994 and her provident fund advance before 10.5.1994. It is also contended that on 23.2.1995 when the Secretary of the petitioner School was away from the school, and when the acting Headmaster was on leave, she entered the School and forcibly took possession of the attendance register and signed the same. Therefore it was decided to place her under suspension and a chargesheet dated 28.2.1995 was issued to her. She sent a reply on 9.3.1995. To avoid any technical objections, a School Committee was legally constituted and intimation of the same was also sent to her. Her suspension was also revoked. Again on 18.4.1995 without proper authority of medical certificate, she entered the School and also signed the students attendance register at about 11.50 a. m. It is further contended, therefore in the School Committee meeting held on 24.4.1995 charges were framed against the Headmistress for absence from service for over a year without proper authority and for her conduct unbecoming of a Headmistress in entering upon the School without proper authority or Medical Fitness Certificate and in forcibly signing the Registers. The charges were communicated to her on 28.4.1995. On 6.5.1995, she requested further time for submitting her explanation to the charges. On 12.5.1995 she sent her reply to the charges. The adjourned enquiry was finally held on 19.6.1995. Considering the charges against her, the petitioner thought it fit that the punishment of removal of service should be imposed on her. Notice regarding the proposed punishment was also issued to her on 28.6.1995. She sought extension of time to send a reply to the said notice, but no reply was received.
3. It is also contended, in the circumstances, the Competent authority was addressed on 16.8.1995 for prior permission for imposing the punishment of removal from service. There has been no reply from the competent authority. Reminders were sent to the Competent authority by way of telegrams dated 30.1.1996, 14.2.1996 and 4.3.1996. No reply from the competent authority for any of these till date.
4. It is further contended that the competent authority without sending any reply for the telegrams and letters, reminders in order to threaten the School Committee and to force them to drop action against her, issued a show-cause notice dated 21.2.1996 presumably on the basis of the letter dated 3.1.1996 written by her, why direct payment of salary should not be made to the staff through Headmistress. The first respondent, though received approval petition dated 16.8.1995 issued a show-cause notice at the behest of the Headmistress’s letter dated 3.1.1996 as if she was not permitted to join duty. Therefore it was decided by the School Committee that no useful purpose would be served by waiting for the approval order and if the approval was not granted or refused within a reasonable time the School Committee can proceed with the further action. In the meeting held on 22.3.1996 it is resolved to dismiss the second respondent (Headmistress) from the post of Headmistress and the copy of the said resolution was also sent to the District Elementary Educational Officer. After receipt of the resolution passed by the School Committee without reference to the said resolution passed an order by proceedings dated 27.3.1996, directing payment of salary through Additional Assistant Edu-cational Officer, Alankulam and also gave powers to the said Officer to grant leave, to grant annual increment, authorising withdrawal of money from Provident Fund and to pay salary through salary register. In such circumstance, the petitioner filed W.P. No. 6264 of 1996 challenging the order of the District Elementary Educational Officer-in-charge, Palayamcottai and obtained stay order on 15.5.1996. Thereafter according to the petitioner they sent a letter dated 6.4.1996 to the District Educational Officer requesting him to cancel the salary sent for the Head-mistress and requested him to send the salary through the management of the School Committee only. Against the dismissal from service, she approached the District Educational Officer and Additional Assistant Educational Officer, Alankulam as if she is entitled to attend the School and function as Head-mistress and she was prevented by the School Committee. Therefore the Additional Assistant Educational Officer, Alankulam acting on the complaint of the Headmistress (second respondent) dated 15.4.1996 passed an order by his proceedings dated 15.4.1996 addressed to Additional Tahsildar, Veerakeralampudur, directing him to give protection to her. Since the said authority has no jurisdiction to pass such proceedings the petitioner was constrained to file W.P. No. 5715 of 1996 and this Court was pleased to order stay of the said proceedings on 26.4.1996.
5. It is further submitted that the action of the District Educational Officer and his subordinates, it is made clear they have decided to help her always and also passed orders which were beyond their power and jurisdiction. It is further contended that the Headmistress being dismissed from service is not entitled to interfere with the management of the School, nor function as the Headmistress of the School. Therefore, the petitioner filed a suit initially at Tirunelveli and thereafter transferred to District Munsif Court, Tenkasi and numbered as O.S. No. 223 of 1996. Apprehending that there is no defence for her in that suit, she approached the District Educational Officer and he has also passed an order dated 27.7.1996, directing the petitioner School Committee to re-instate her on the ground that before dismissing her the petitioner did not obtain prior approval and therefore the dismissal is illegal. Against the said order dated 27.7.1996 the petitioner has filed a third writ petition viz., W.P. No. 11018 of 1996. It is also contended that the said order is per se illegal and the same was passed without notice to the petitioner. Moreover the District Educational Officer has no jurisdiction to pass the order.
6. The District Elementary Educational Officer, Tirunelveli has filed a counter-affidavit in W.P. Nos. 5715 and 6264 of 1996. The case of the Government/respondents as seen from the counter-affidavit is briefly stated hereunder:
It is contended that Balaguru Vidyasalai is an aided Primary School receiving grant from the State funds. It is governed by the Tamil Nadu Private Schools (Regulation) Act and Rules. Herein after referred to as ‘the Act and the Rules’ It is admitted that the 4th respondent (in W.P. No. 5715 of 1996) went on medical leave supported by medical certificate from 19.2.1994 and extended the leave upto 31.7.1994. She was asked to appear before the Medical Board by the Secretary of the School for examination in the context of her leave from 19.2.1994 onwards. The Medical Board, after examination of her, reCommended medical leave to her from 19.2.1994 to 31.7.1994. But the Secretary has not sanctioned the leave nor allowed her to join duty on 1.8.1994 and created troubles to her. Finding no other alternative, she again entered on earned leave from 2.8.1994 to 15.8.1994 and then extended the same now and then on medical grounds. Her leave applications are supported by Medical Certificates. They denied the allegation that she was requested by the School Committee to join duty after production of proper Medical Certificate is utter falsehood: On the other hand the Secretary of the School has not sanctioned the lawful leave applied for by her, but also temporarily misappropriated the salary of her for the months of February and March, 1994 and also her Provident Fund advance amount of Rs. 22,060. In view of the illegal and unlawful action of the Secretary of the School causing trouble to her from functioning as Headmistress of the School, the District Elementary Educational Officer, Tirunelveli in his order dated 27.3.1996 directed payment of salary to the teachers of the School through the Headmistress of the School and placed the Additional Assistant Educational Officer, Aiankulam incharge of the School in the place of Secretary of the School to look after the day-to day functions of the School.
7. It is contended that since the charges framed against her, themselves are flimsy and do not merit consideration, permission sought for by the Secretary of the School to terminate the services of the Headmistress was not granted by the District Educational Officer. The Secretary of the School is bound to get the approval of the District Educational Officer for terminating the services of the Headmistress and he cannot terminate the services of her on his own accord without regard to the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules. It is also contended that even after the Additional Assistant Educational Officer, Aiankulam was put incharge of the School in the place of Secretary of the School, the Secretary attempted to interfere with the functioning of the School and hence the Additional Tahsildar, Veerakeralampudur was ad-dressed by the Additional Assistant Educational Officer, Aiankulam to maintain law and order in the School village and to help the School function with police force if necessary as the Secretary was bent upon committing irregularities with the sole object to drive the Headmistress from the School, so as to accommodate his own son in her place. It is also contended that the petitioner ought to have exhausted the remedy by way of appeal to the Director of El-ementary Education, Madras.
8. Similar contentions were raised by the District Educational Officer in Writ Petition No. 6264 of 1996.
9. The second respondent (Headmistress) in Writ Petition No. 11018 of 1996 filed a counteraffidavit in the said writ petition. The stand of the Headmistress is briefly stated hereunder:
It is contended that one of the teachers Balachandran is the son of deponent Sivasubramaniam and Jothi Indira is the daughter of the said deponent. It is contended that her husband has also right over the School, however Sivasubramaniam Thevar was working in the School was able to get the School transferred in his name. On the basis of certain document, since he was objected, she and her husband was objecting for the above action, the said Sivasubramaniam Thevar had animosity on her and he was harassing them. She was working in the School from 1966 and she is a special grade Headmistress for more than 20 years. The said Sivasubramaniam Thevar was insisted that she should resign her post as Headmistress, so that Balachandran could be appointed in her post. She conveyed her decision not to resign the post of Head-mistress. The Education Department also pointed out that the said Balachandran cannot be appointed as Headmaster, since he had no experience required under law. Five years experience is necessary to appoint a teacher as Headmaster. Since, she refused to resign the post, the said Sivasubramaniam Thevar causing mental agony, he and his son were abusing her in the presence of the students and the public. Therefore, she became sick and applied for leave as per rules. First she applied for leave from 19.2.1994 to 18.4.1994 for 59 days. When the leave period was over she went to the School on 19.4.1994 to do her job. But she was prevented from attending the class. Therefore she was very much annoyed and disturbed and she was put to mental torture and physical pain and again she applied for leave from 19.4.1994 to 18.5.1994 for 30 days. After the leave period was over she went to School on 17.7.1994 and she was prevented from attending the School by the said Sivasubramaniam Thevar and his son; they abused her with vulgar language in the presnece of the students and the public. Therefore, she applied for leave from 17.7.1994 to 1.8.1994. After appearing before the Medical Board and getting third Medical Certificate she came to School on 1.8.1994 to work. But she was prevented. In view of this, she again applied for leave from 2.8.1994 to 15.8.1994 and also she surrendered her leave work of Rs. 3,200 and applied for leave. As per the rules, according to her she is entitled to medical Leave for 540 days. As advised by the elders and the Educational Authorities, on 23.2.1995 she went to the School. At that time one Tmt. Bagyalakshmi was incharge as Headmistress, she was not given the attendance Register to sign. In view of the attitude of the School management, she again applied for leave on 9.3.1995. But the petitioner sent a letter saying why she should not be removed from service permanently and she should send a reply within 7 days. In her letter dated 23.3.1995 she explained in detail. It is further contended that the Competent authority has not given approval for the alleged dismissal of the second respondent. It is settled law that till the approval is granted by the competent authority, she is the Headmistress of the School. The action of the educational authorities by passing various orders are in accordance with law, More particu-larly, in accordance with the provisions of the Act and Rules. With these averments, she prayed for dis-missal of all the three writ petitions.
10. In the light of the above pleadings, I have heard Mr. T.R. Mani Learned senior counsel appearing for the petitioner/School Committee in all the three writ petitions, Ms. Senthamarai Kanthappan learned Government Advocate (Education) for the educational authorities and Mr. N. Kannadasan learned Counsel appearing for the fourth respondent in W.P. No. 5715, third respondent in W.P. No. 6264 and second respondent in W.P. No, 11018 of 1996.
11. Mr. T.R. Mani, learned senior counsel for the petitioner raised the following submissions:
(i) Prior approval as mentioned in Section 22(1) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 is only a directory;
(ii) The authority who has passed the impugned order in Writ Petition No. 11018 of 1996 has no jurisdiction;
(iii) Before passing the impugned orders in other two writ petitions the petitioner was not given any notice or enquiry as conducted by the authorities concerned, hence both the orders are liable to be quashed.
In support of the above contentions, he has relied on the following decisions:
(a) Secretary, Sri Ramakrishna Vidyalayam High School, Thirupparathithurai, Tiruchirapalli District v. The State of Tamil Nadu & others, 1990 Writ L.R. 62; (b) Montreal St. Ry. Company v. Normandin A.I.R. 1917PC. 142. (c) State of U.P. v. Manbodhan Lal . (d) Punjab Beverages v. Suresh Chand . (e) Dalchand v. Municipal Corporation, Bhopal, . (f) Yogeshwar v. State Transport Appellate Tribunal . (g) G.S. Lamba v. Union of India ; (h) State of Rajasthan v. Shamsher Singh ; (i) Phool Chand v. Regional Transport Authority, Ujjain ; (j) Onkar Singh v. Regional Transport Authority, Agra ;(k) K.T. Dharanendrah v. R.T. Authority ; (1) Rubber House v. RN. Industries (P) Limited ; (m) Ikhlaq Mohamed v. Union of India A.I.R. 1983 H.P. 75; (n) State of Kerala v. M.M. Kunhikannan Nambiar (1986) 1 S.C.C. 435; (o) State of Rajasthan v. D.R. Laxmi .
In addition to the above decisions, he has also relied on some of the passages in,
(1) “Interpretation of Statutes” by G.P. Singh and (ii) Jain on “Administrative law.
12. On the other hand Mr. N. Kannadasan learned Counsel appearing for the Headmistress raised the following contentions:
(1) In view of the dismissal of the suit O.S. No. 223 of 1996 on the file of the District Munsif Court, Tenkasi filed by the petitioner/management the present writ petitions are not maintainable, par-ticularly Writ Petition No. 11018 of 1996 has to be dismissed on this ground;
(2) The impugned order passed by the District Educational Officer is the competent authority under the provisions of the Act and Rules; and
(3) As per Section 22(1) of the Act, prior approval of the competent authority is a mandatory, failing compliance the order of dismissal dismissing the Headmistress from service cannot be sustained.
In support of the above contentions he has also relied on the following decisions;
(i) Rukmani Devi v. Chief Educational Officer and 2 others . (ii) The Ayya Nadar Janaki Ammal College, etc., Sivakasi v. A. Pandian and Ors. 1996 Writ L.R. 521. (iii) Kandasamy v. The District Educational Officer etc., 1996 Writ L.R. 439. and (iv) Order in Writ Petition No. 11387 of 1994 dated 18.10.1997 of P. Sathasivam, J.
13. I have carefully considered the rival submissions.
14. First and foremost I shall consider whether the prior approval of the competent authority provided under Section 22(1) of the Act before passing an order of dismissal is mandatory or directory. In this case, according to the petitioner in view of the continuous absence for over a year without proper authority and for entering upon the School without proper authority or Medical Fitness Certificate and in forcibly signing the registers, after framing necessary charges the School Committee after giving an opportunity to the Headmistress proposed a punishment of removal from service from the School. It is also the case of the petitioner/management that they have addressed the competent authority on 16.8.1995 for prior permission for imposing the punishment of removal from service on the fourth respondent. According to them, since no reply from the second respondent, reminders were sent to the competent authority by way of telegrams dated 30.1.1996, 14.2.1996 and 4.3.1996. In such circumstance, according to the petitioner/management they have no other go except to termi-nate the service of the Headmistress.
15. On the other hand, it is the case of the Headmistress that on each and every occasion she had ob-tained proper Medical Fitness Certificate and when she attempted to enter and sign the attendance register she was not allowed to do so. It is also her case that when her action was justifiable under the provisions of the Act and in view of the conduct of the management she has approached the competent Edu-cational Authority for her redressal. On the representation of the aggrieved Headmistress the Educational Authority issued necessary direction for payment of salary to the Headmistress as well as to the other staff through the Additional Assistant Educational Officer, Alankulam. It is also contended that in view of strained relationship between the Headmistress and the School management, in the interest of the teachers as well as the students, the competent authority has requested the Tahsildar and the Inspector of Po-lice concerned to provide necessary protection to maintain law and order.
16. In the light of the above factual position, now I shall consider the arguments advanced by both sides.
17. Section 22(1) of the Act reads thus: “Dismissal, removal or reduction in rank or sus-pension of teachers or other persons employed in private schools:
(1) subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. ” (Italics supplied)
The reading of the above section makes the position clear that no teacher or other person employed in any Private School shall be dismissed or otherwise be terminated except with the prior approval of the Competent authority. There is no dispute that the petitioner School is an aided Private School receiving grant from the State funds. it is also not disputed that the said School is governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. 18. The learned senior counsel at the foremost brought to my notice the decision of Srinivasan, J. (as he then was) reported in Secretary, Sri Ramakrishna Vidhyalayam High School, Tiruparathithurai, Tiruchirapalli District v. The State of Tamil Nadu & others, 1990 Writ L.R. 62. In that decision, the learned Judge has considered an identical question with regard to Section 22(1) of the Act. The following passage is very much relied on,
If the competent authority under Section 22 of the Act does not exercise the power combined with duty to pass orders on an application for approval of the proposed punishment of a teacher within a reasonable time he loses his jurisdiction over the matter and he shall not exercise the same thereafter to the prejudice of the of the school management. At any rate, neither he nor the other authorities under the Act will be entitled to find fault with the school management for not getting the prior approval of the competent authority under the provisions of Section 22 of the Act and seek to invalidate the order of termination made by the school management. If after waiting for a reasonable time the school management proceeds to exercise its rights to terminate the services of the teacher in terms of the agreement of service between the school and the teacher, it is not open to the authorities under the Act contend that such a termination is not valid on the ground of non-Compliance with the provisions of Section 22 of the Act. Even, if it can be said that the language of Seb-section (1) is not fully satisfied in such cases, it will be a case of substantial compliance with the provisions of the sub-section which will be sufficient in the eye of law to uphold the validity of the termination, subject of course to other grounds of attack if any against the same. I am of the view that such an order of termination cannot be challenged on the ground that Seb-section (1) of Section 22 of the Act has not been complied with.
Even though very much reliance is placed on the above said decision, particularly the conclusion reached by the Hon’ble Judge, the said view has not been approved by the Division Bench in a decision reported in Rukmani Devi v. Chief Educational Officer & 2 others . In that decision Their Lordships’ in the Division Bench, after considering the object of the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules have concluded that,
it is a condition precedent contemplated by the statute for dispensing with the services of an employee
and after reiterating the same they have categorically held,
We do not approve the ratio contained in paragraph 38 of the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School, Tiruparathithurai, Tiruchirapalli District v. The State of Tamil Nadu and Ors. 1990 Writ L.R. 62. and over rule the same.
19. In spite of a direct binding Division Bench decision on the question before me, the learned senior counsel for the petitioner submitted that the Bench decision referred to above, Rukmani Devi v. Chief Educational Officer & 2 others . is obiter and in any event, considering the entire provisions of the statute viz., the above referred Act and Rules, prior approval contained in Section 22(1) is only a directory and not mandatory.
20. Now, I shall consider the other decisions referred to by him. The earliest decision is that of the Privy Council reported in Montreal St. Ry. Co., v. Normandin A.I.R. 1917 P.C. 142 The conclusion in that decision with regard to interpretation of statutes–mandatory and directory is as follows:
When the provisions of a statute relate to the performance of a public duty and the case is such, that to hold null and void, acts done in neglect of this duty would work serious general inconve-nience or injustice to persons, who have no control over those entrusted with the duty, and at the.. same time, would not promote the main object of the Legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done.
21. In State of U.P. v. Manbodhan Lal Their Lordships’ of the Supreme Court have observed thus,
The provisions of Article 320(3)(c) are not mandatory and non-compliance with those provisions, does not afford a cause of action to civil servant in a court of law.
22. In Punjab Beverages v. Suresh Chand it is held
The contravention of Section 33 does not render the order of discharge or dismissal void and inoperative. The only remedy available to the work man for challenging the order of discharge or dismissal is that provided under Section 33-A, apart of course from the remedy under Section 10, and he cannot maintain an application under Section 33-C (2) for determination and payment of wages of the basis that he continues to be in service. The workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated, on a complaint under Section 33-A or on a reference under Section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman.
23. In Dalchand v. Municipal Corporation, Bhopal the conclusion arrived in that judgment in thus, There are no ready tests or invariable formulae to determine whether a particular provision in a statute is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act Complained of. ”
24. In Yogeshwar v. State Transport Appellate Tribunal in view of the fact that the Government had not disposed of the objections raised under Section 68-D of the Motor Vehicles Act, 1939 the Supreme Court has directed the Government to dis-pose it of in specified time and also set aside cancellation of temporary permits granted during pendency of scheme.
25. In G.S. Lamba v. Union of India the following observation is pressed into service.
The language of Rule 13(1) appears to be mandatory in character. Where recruitment to a service or a cadre is from more than once source, the controlling authority can prescribe quota for each source. It is equally correct that where the quota is prescribed, a rule of seniority by rotating the vacancies can be a valid rule for seniority. But as pointed out earlier if the rule of seniority is inextricably interwined with the quota rule and there is enormous deviation from the quota rule, it would be unjust iniquitous and unfair to give effect to the rota rule. In fact has held in O.P. Singla’s case, giving effect to the rota rule after noticing the enormous departure from the quota rule would be violative of Article 14. Therefore assuming that quota rule was mandatory in character as pointed out earlier, its departure must permit rejection of rota rule as a valid principle of seniority.
26. In State of Rajasthan v. Shamsher Singh A.I.R. 1985 S.C. 7082 it is held,
The Government has to consider the representation of the detenu within six days of its receipt. In that circumstance, the Supreme Court had concluded that a day’s delay in forwarding the representation beyond the statutory period of three weeks would not make any difference as it could not be said that there had bene any negligence or remissness on the part of the Government and no prejudice was caused to the accused.
27. In Phool Chand v. Regional Transport Authority, Ujjain . Their Lordships of the Supreme Court have held thus,
There is unreasonable delay in publication of approved scheme quash the draft scheme.
28. In Onkar Singh v. Regional Transport Authority, Agra also since the draft scheme was not approved for more than 25 years, Their Lordshins’ have quashed the draft scheme.
29. In K.T. Dharanendrah v. R.T. Authority the draft scheme was not approved by the Government even after more than six years. Accordingly, the draft scheme was quashed by the Supreme Court.
In the above mentioned three cases, relating to approval of schemes, even though the approval by the Government is a mandatory, in view of the fact that the Government have not approved the draft schemes for several years, the Supreme Court has quashed all those draft schemes covered in those cases. The principle laid down in the three decisions referred to above have no bearing in our case.
30. In Rubber House v. E.N. Industries Pvt. Ltd while interpreting the word “shall” and whether it is directory or mandatory, it is held:
“The word “shall” in its ordinary import is obligatory. Nevertheless, the word “shall” need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as dis-closed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the stature in question.
On a close scrutiny of the relevant rules referred supra in the light of the above principles of statutory interpretation, we are of the view that the non-compliance of Rule 4 (c) i.e., the nonmentioning of the quantum of arrears of rent, does involve no invalidating consequence and also does not visit any penalty. ”
31. Relying on the Division Bench decision of the Himachal Pradesh reported in Ikhlag Mohamed v. Union of India A.I.R. 1983 H.P. 75 it is contended that non-compliance of Section 22(1) of the Act does not invalidate the order of termination passed by the management. In the case before the Himachal Pradesh High Court, the Passport authority neither granted nor refused the passport to the petitioners therein. In such a situation the Division Bench concluded thus,
Whenever a statute enjoins upon an authority to do an act, it is required to be done within a reasonable time. The passport authority, therefore, could not sit on the applications for years together and take away the rights of the citizen to pass-ports. Period of two years, which has elapsed since the petitioners made applications, is much more than reasonable. After going through the record, we find that the only reason for not deciding the applications was refusal of the passport authority to do anything in the matter. By this conduct the passport authority has refused passports to the petitioners without any rhyme or reason in contravention of Section 5(3) of the Act.
After holding so, they directed the Passport Authority to issue passports to the petitioners within two weeks.
32. Relying on State of Kerala v. M.K. Kunhikannan Nambiar it is contended that case in our hand is not a case where the infirmity is a fundamental, hence non-compliance of Section 22(1) of the Act does not affect the termination order passed by the management.
33. State of Rajasthan v. D.R. Laxmi is also relied on for the above proposition. The said decision arise under Land Acquisition Act. It is not explained how the said principle is applicable to our case.
34. In addition to the above decisions some of the passages in “Interpretation of Statutes” by G.P. Singh as well as “Administrative Law” by Jain have been brought to my notice. By pointing out the above prin-ciples, it is contended that what is contained in Section 22(1) of the Act is only a directory and not a mandatory. Hence the order of termination passed by the petitioner/management without the prior approval of the competent authority does not affect the said order of termination. As rightly contended by Mr. N. Kannadasan, in most of the decisions referred to above, Their Lordships’ of the Supreme Court have directed the respective Government to comply with the same within a particular time. No doubt, in one case by referring Section 33 of the Industrial Disputes Act, Their Lordships’ of the Supreme Court have held that non-compliance of the above said provision or the order of the employer violating Section 33(1) and (2) oft he Act does not vitiate the ultimate order passed by them. In this regard, as observed by Their Lord-ships’ in Rubber House v. E.N. Industries Pvt. Ltd. the provisions of the Act can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the statue in question.
35. It is clear that there are no ready tests or invariable formulae to determine whether a provision of a statute is mandatory or directory. The broad purpose of the statute is important. The object of the particu-lar provision must be considered. The link between the two is most important. The weighing of the consequences of holding the provision to be mandatory or directory is vital and more often than not, determi-native of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief but the enforcement of a particular provision literally to its latter will tend to defeat that design, the provision must be held to be directory so that the proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. (Vide A.I.R. 1983 S.C. 303).
36. The Division Bench decision of this Court reported in Rukmani Devi, M. v. Chief Educational Officer & 2 others as already stated it is a direct answer to our case. In that decision their Lordships’ in the Division Bench after re-ferring the conclusion of Srinivasan, J. (as he then was) in para 38 in a decision reported in Secretary, Sri Ramakrishna Vidyalayam High School v. The State of Tamil Nadu and Ors. 1990 Writ L.R. 62 have observed thus,
We have carefully considered the submission of the learned Counsel for the 3rd respondent based on the ratio of the above decision. On facts, we find that in the case before the learned Single Judge in the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School, v. The State of Tamil Nadu and Ors. 1990 Writ L.R. 62 after a particular time the school management passed the order of termination itself and served it on the teacher concerned on the view that the management has waited for sufficient time and since the approval was not forthcoming they are entitled to serve the order of termination. On facts, it may be noticed that in the case before us no such final order has been passed and communicated to the appellant in and consequently it cannot be contended that the disciplinary proceedings have been properly concluded culminating in an order of punishment. Even that apart, with great respect to the learned Single Judge, we are unable to either subscribe to or approve the view taken as expressed in paragraph 38 of the decision referred to supra. The statutory power of approval like the one conferred on the competent authority under Section 22(1) of the Act to approve or refuse approval of termination of a teacher or other person has been devised as an essential check on the arbitrary exercise as powers by a school management. The stipulation of obtaining approval before termination has been made to safeguard the rights of a teacher or other person under the management of an aided private school and merely because a statutory conferred with a powers of supervision and control commits a lapse or shows some indifference that by itself is no ground to totally deny and deprive the competent authority of the right to exercise such power for all times to come on account of the initial lapse or delay in so exercising the power of approval. The power conferred under Sub-section (1) of Section 22 of the Act is not for the benefit of the competent authority or the department concerned, by the legislature must have though of such a devise more in order to protect a teacher or other employee of an aided educational institution and while that be the position the lapse or the delay on the part of the competent authority in diligently exercising the power cannot have the effect of denying the protection and safeguard statutorily devised in favour of the teacher or other person employed in an aided educational institution. The reasoning of the learned single Judge that if the competent authority under Section 22 of the Act does not exercise the power combined with the duty to pass orders on an application for approval within reasonable time he losses his jurisdiction over the matter and he shall not exercise the same thereafter to the prejudice of the School management cannot be justified while dealing with the nature purpose and character of the powers conferred upon the competent authority under the said provision which would appear to be meant to protect the teaching or other staff of an aided school. Approving such a ratio merely on the basis of a possible prejudice to the School management would mean totally ignoring the prejudice and damage that may be caused to the teacher or other person concerned for whose protection such a stipulation has been made providing for prior approval before termination of services. If there is any lapse or indifferent attitude exhibited by the competent authority, it is always open to the school management concerned to move the appellate or revisional authorities or this Court under Article 226 of the Constitution of India to direct the competent authority to discharge his duties expeditiously within a reasonable time. But that is not the same thing as to completely deny the statutory power of approval conferred upon the competent authority so as to efface the statutory stipulation once and for all. Doing so would amount to rewritting a specific statutory provision with a definite purpose in public interest. Further, we are also unable to approve the view expressed by the learned single Judge that though Seb-section (1) is not fully satisfied in cases of the nature dealt with by the learned single Judge, it will be a case of substantial compliance with the provisions of Sub-section (1) which will to sufficient in the eye of law to uphold the validity of termination. The theory or principle of substantial Compliance can be applied only in cases or situation which relates to mere observance of certain procedural formalities. The provision contemplated for securing the approval of the competent authority before effecting termination of services of a teacher or other person employed in an aided School is not a mere procedural formality, but really concerns a substantial restriction on the power of the management of an aided school to dispense with the services of a teacher or other person employed therein at its whim and a corresponding right in the teacher or other person employed in the institution. To put it more crisply it is a condition precedent contemplated by the statute for dispensing with the services of an employee and in respect of such a matter there is no scope for negotiating with rigor or law having recourse to the Principle of substantial compliance. Consequently, we do not approve the ratio contained, in paragraph 38 of the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu arid others, 1990 Writ L.R. 62 and over rule the same.
37. Their Lordships’ in the Division Bench were con-cise of the object of the Tamil Nadu Recognised Private Schools (Regulation) Act and after considering the entire provisions of the Act and Rules, came to the conclusion that prior approval by the competent authority in respect of termination of a service of the teacher is a condition precedent. With great respect the said decision is binding on me. Though Mr. T.R. Mani learned senior counsel appearing for the petitioner by pointing out the various decisions referred to above, contended that the law laid own by the Bench in Rukmani Devi, M. v. Chief Educational Officer & 2 others requires reconsideration, In spite of considering the decisions cited by him, I am not able to accept his contention in view of the reason given in . Apart from the strong reliance on the above decision, the learned Counsel for the Headmistress has also brought to my notice a decision of N.V. Balasubramanian, J. reported in The Ayya Nadar Janaki Ammal College, etc. Sivakasi v. A. Pandian and Ors. learned Judge has to considered the similar provision in Tamil Nadu Private Colleges (Regulation) Act, 1976. The learned Judge after referring various decisions of this Court as well as the Apex Court came to the conclusion that,
Sec. 19 of the Act (Private Colleges Act) would squarely apply to the facts of the case and the prior approval of the competent authority is necessary before putting an end to the services of the first respondent. In this case admittedly the prior approval of the competent authority was not ob-tained by the petitioner College before terminating the service of the first respondent by the petitioner College. “Consequently, the order of termination of the first respondent does not take effect or become effective unless approval by the competent authority….
38. With regard to the direction of the competent authority to disburse salary directly by the Educational authority to the teachers, the following conclusion of R. Jayasimha Babu, J. in a decision reported in Kandasamy, P. v. The District Educational Officer, etc., 1996 Writ L.R. 439 is very relevant and the same is also extracted hereunder:
On an over all consideration of all the facts it is quite clear that there are special circumstances which justified an order being made directing the payment of the salary to the teachers by the authorities directly. The aid given is meant for the teachers. There is no vested right in the petitioner to obtain amounts from the State. Petitioner is not deprived of any right by the direct payment of salaries. It is in the interest of the institution and of the teachers which are far more important and these interests are well served by the impugned order.
39. Mr. N. Kannadasan has also relied on the decision of mine (P.S.J.) rendered in Writ Petition No. 11387 of 1994 dated 18.10.1997. In that case, an identical question was considered by me. During the course of argument in that case, it was brought to my notice the decision of Srinivasan, J. (as he then was) reported in Secretary, Sri Ramakrishna Vidyalayam High School v. The State of Tamil Nadu and Ors. 1990 W.L.R. 62 as well as Division Bench decision overruling the decision arrived by the Bench in a decision reported in Rukmani Devi, M. v. Chief Educational Officer & 2 others . After referring both the decisions in the light of the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, it is held,
In the absence of prior approval by the competent authority, the action of the 4th respondent in terminating the service of the petitioner is contrary to the statutory provisions and cannot be countenanced.
40. In the light of the above position, I am of the view that the stipulation of obtaining approval before termination has been made to safeguard the rights of a teacher or other persons under the assignment of an aided Private school. Merely because there are provision of appeal and revision before the appellate and revisional authorities, it is not open to the management to terminate the teacher or other persons without the prior! approval of the competent authority. By reading the entire provisions of the Act including the object and reasons in order to protect and safeguard the service of the teacher or other persons, the legislature in their wisdom have provided a devise viz., ‘prior approval by the competent authority’. No doubt, it is true that the request of the Management to approve the proposed action of them has not been considered by the competent authority. However, that does not take away the power of the competent authority and enable the management to terminate the services of the teacher or any other person. If there is any lapse or delay or indifferent attitude exploited by the said authority, it is always open to the management either to approach the higher authorities or to the court for redressal. Hence, as stated earlier, I am unable to accept the contentions of the learned senior counsel that the issue “has to be decided by a larger Bench. ” On the other hand, I am satisfied that after taking into, consideration the objects and reasons of the Tamil Nadu Recognised Private Schools (Regulation) Act and in the light of various provisions, the Division Bench in the said decision have concluded that the prior approval of the competent authority is a mandatory one. Hence, I reject the first contention of the learned Counsel for the petitioner.
41. With regard to the contention that the authority who passed the impuged order has no jurisdiction, it is brought to my notice that as per Rule 17 of the Rules, the District Educational Officer is the competent authority and who alone has passed the impugned order in this case. Hence the second objection is also liable to be rejected.
42. It is also brought to my notice by Mr. N. Kannadasan that the petitioner/management has filed suit in O.S. No. 223 of 1996 before the District Munsif Court, Tenkasi against the Headmistress. In that the management had prayed for the relief of permanent injunction against the said Headmistress from interference in the School management. The perusal of the copy of the judgment in O.S. No. 223 of 1996 shows that both the parties viz., the management (petitioner herein,) and the Headmistress (contesting respondent herein) have fully contested the case and ultimately by judgment and decree dated 18.12.1996 the learned District Munsif, Tenkasi dismissed the suit filed by the management. As rightly contended by Mr. N. Kannadasan, the management/petitioner herein having approached the civil Court and failed therein it is not possible for the petitioner to once again canvas the same in the present writ petition viz., Writ Petition No. 11018 of 1996. Certainly the decision rendered in the said suit (which was decided on merits) is binding on the petitioner.
43. Regarding the last contention that the petitioner management was not given any notice or opportunity before passing the impugned orders in the other two writ petitions. It is brought to my notice by the learned Government Advocate (Education) for the notice of the District Educational Officer (Elementary). Tirunelveli in Na. Ka. No. 194/A4/96 dated 21.2.1996, requesting the Secretary/Corespondent of the petitioner/management to offer their reply if any within 15 days, for the reasons known to the petitioner, no reply has been sent by them. The said show-cause notice was issued on receipt of a complaint from the Headmistress dated 3.1.1996. The perusal of the said show-cause notice, which is also included in the typed set of papers at Page No. 21 (in Writ Petition No. 11018 of 1996) shows that the District Educational Officer has pointed out the omissions and commissions of the management as well as the grievance of the Head-mistress. It is also seen that after fully satisfying with the complaint made by the Headmistress before taking any action or passing orders against the management, the District Educational Officer, Tirunelveli requested the management to submit their objections if any within 15 days from the date of receipt of the said notice. The petitioner has admitted that the said notice has bene served on them. As stated earlier, the petitioner did not submit any objection with regard to the show-cause notice dated 21.2.1996. Having failed to submit their objection and participate in the enquiry, it is not open to the petitioner to contend that they were not given any opportunity or notice before passing the impugned orders. Hence, I am unable to accept the last submission of the learned senior counsel appearing for the petitioner.
44. Under these circumstances, I do not find any merit in all the three writ petitions, consequently all of them are dismissed. However, in the circumstances of the case there will be no order as to costs.
45. In view of the dismissal of the main writ petitions, connected W.M. Ps., are also dismissed.