IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 31-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition Nos.4391 and 2885 of 2001 W.P.No.4391 of 2001: St.Mary Goretty Higher Secondary School, Manalikarai and Post, Kanyakumari District, rep. by its Correspondent, Rev. Father Christhudas .. Petitioner. Versus 1.The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-600 009. 2.The Director of School Education, College Road, Chennai-600 006. 3.The Chief Educational Officer, Nagercoil, Kanyakumari District. 4.The District Educational Officer, Thucklay and Post, Kanyakumari District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, relating to the order of the 2nd respondent made in Na.Ka.No.36480/G3/99, dated 8.5.2000, and quash the same and consequently, direct the respondents to continuously pay salary to Selin Therasa, D.Rocks Anushya, R.Rani and A.Puhphabai as Secondary Grade Teachers and B.T.Assistant respectively, from June 2000, with all benefits. W.P.No.2885 of 2001: 1.Selin Theresa 2.D.Rocks Anushya 3.R.Rani 4.A.Pushpabai .. Petitioners. Versus 1.The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-600 009. 2.The Director of School Education, College Road, Chennai-600 006. 3.The Chief Educational Officer, Nagercoil, Kanyakumari District. 4.The District Educational Officer, Thucklay and Post, Kanyakumari District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, relating to the order of the 2nd respondent made in Na.Ka.No.36480/G3/99, dated 8.5.2000, and quash the same and consequently, direct the respondents to continuously pay salary to Selin Therasa, D.Rocks Anushya, R.Rani and A.Puhphabai as Secondary Grade Teachers and B.T.Assistant respectively, from June 2000, with all benefits. For Petitioner : Mr.K.Ravichandrababu For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. It has been stated that the petitioner school is a Christian Religious Minority School recognised and aided by the State Government. The petitioner School is having both Tamil and Malayalam medium of instructions and from the year 1979-80, English medium sections were also permitted by the concerned department, without any condition being stipulated. For the English medium sections one teacher is sanctioned for each standard, as it was done for the other schools. Consequently, the management of the petitioner school has been remitting the fee collected from the English medium students in the Government account, from the academic year 1979-1980. From 1979-1980 to 2000-2001, the petitioner Management had remitted a sum of Rs.19,97,997/-, towards the tuition fees collected from the students of standards 6th to 12th.
3. It has been further stated that, considering all the relevant facts, the first respondent had issued an order in G.O.Ms.No.523, School Education Department, dated 29.12.1997, sanctioning additional posts of Secondary Grade Teachers for several schools. The petitioner school was sanctioned five additional Secondary Grade posts and one B.T.Assistant Post with effect from 1.6.97, after taking note of the over all strength of the students of the school in the ratio of 1:50. The strength of the school during the academic year 1997-98, in standards 6th to 8th, was 739 and in the standards 9 and 10 it was 530. The petitioner school was already having 15 Secondary Grade Teacher Posts and 12 B.T.Assistant Posts. Additionally, three Secondary Grade Teachers Posts and one B.T.Assistant Post were sanctioned, after verification of the strength of the school by the respondents, based on the Government Order, dated 29.12.1997. Therefore, the petitioner management had promoted one A.Pushpa Bai, who was a Secondary Grade Teacher, to the post of B.T.Assistant.
4. It has also been stated that in the vacancies of Secondary Grade Teacher posts, one Celin Therasa was appointed, on 8.6.98, as she had been working in an unsanctioned post, from the month of June, 1996. Her appointment was approved by the fourth respondent and she was paid the salary from 8.6.1998 to 31.5.2000. The approval had been granted by the proceedings M.M.15868/A2/99, dated 4.1.2000. Even though the approval granted by the fourth respondent has not been cancelled, she has not been paid the salary from the month of June, 2000, though she has been working in a sanctioned and approved post.
5. It has also been stated that one D.Rocks Anushya was appointed in the newly sanctioned Secondary Grade Teacher Post from 4.6.99, in the place of one R.Justin Raj, who had held the post till 3.6.99, as he was accommodated in a retirement vacancy from 4.6.99. D.Rocks Anushya was paid her salary till the month of May, 2000, as her appointment was approved by the fourth respondent. Justin Raj was also paid the salary upto 4.6.98. However, from the month of June, 2000, no salary has been paid for the teacher who has been occupying the said post.
6. It has also been stated that in the third Secondary Grade teacher vacancy one R.Rani was appointed from 4.6.99 in the place of Fancy Premalatha, who was appointed from 4.6.98 till 8.6.99 and from 9.6.99, she was transferred and posted in a retirement vacancy in St.Josephs Primary School, Manalikarai, which had been established and administered by the same management as that of the petitioner school. R.Rani was appointed in the said vacancy and her appointment was also approved from 4.6.98 and her salary was paid till the month of May, 2000. However, from the month of June, 2000, she has not been paid the salary, even though she was appointed in a sanctioned and approved post. In the newly created B.T.Assistant Post A.Pushpa Bai was promoted, from 8.6.98 and she was working as a Secondary Grade Teacher in a non-sanctioned post, from 1.6.1984 and in the sanctioned post, from 1.6.87. A.Pushpa Bai was paid the B.T.Assistant salary, from 8.6.97 to May, 2000. However,from the month of June, 2000, she was not paid the salary even though her appointed had been approved as she had been appointed in a sanctioned post. Two other persons Mery Jesita and F.John Francis, who were appointed in the 4th and 5th newly sanctioned Secondary Grade Teacher posts, from 8.6.98, are B.Ed., qualified teachers appointed in the secondary grade vacancies. Their appointments have not been approved.
7. It has also been stated that during the academic year 1998-1999, the petitioner school was having sufficient strength as there were 705 students in standards 6th to 8th and 634 students in standards 9th and 10th. For the academic year 1999-2000, the petitioner school was having 712 students for standards 6th to 8th and 640 students for 9th and 10th. From 1.6.98, the teacher pupil ratio was modified as 1:40 from that of 1:50. In spite of the school having sufficient strength and on verification by the concerned authorities, additional posts of teachers had been sanctioned. However, even after the approval of the appointments were granted by the fourth respondent, who is the competent authority, the second respondent had passed an order in his proceedings Na.Ka.No.36480/G3/99, dated 8.5.2000, by stating that the third respondent has surrendered the post. After the impugned order had been passed by the second respondent, the management of the petitioner school had made a representation to the third respondent, on 2.6.2000, giving the details of the student strength of the petitioner school from the academic year 1997-98, to substantiate the claim that the petitioner School is entitled to retain the newly sanctioned posts in which the teachers had been appointed. The management of the petitioner school had also requested the third respondent to retain the posts in the petitioner school. On 15.9.2000, another representation had been submitted to the second respondent stating all the necessary details from 1.6.97. It has been pointed out that, as per G.O.Ms.No.525, the petitioner school is entitled to retain the sanctioned post. In spite of the repeated representations made by the management of the petitioner school, the concerned teachers had not been paid the salaries due to them. In such circumstances, the management of the petitioner school has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
8. In the counter affidavit filed on behalf of the respondents, the averments made by the petitioner school had been denied. It has been stated that the petitioner school is a recognised aided minority school. Five posts of secondary Grade Teachers and one post of B.T.Assistant were newly sanctioned to the petitioner school, in G.O.Ms.No.523, Education, dated 29.12.97. The said posts were filled up by the management of the school during the year 1997-98. By applying the 1:50 ratio, the school was not having sufficient strength of students for utilising the additional posts sanctioned during the year 1997-98. Hence, the District Educational Officer, Thuckalay, the fourth respondent, was not in a position to approve the appointments made in the newly sanctioned posts for the year 1997-98. Thereafter, with reference to the appeal made to the Chief Educational Officer, Nagercoil, and as per the staff fixation order for the year 1998-99 issued by the Chief Educational Officer, Nagercoil, applying the 1:40 ratio implemented in G.O.Ms.No.525, School Education (D1) Department, dated 29.12.97, the appointment of one B.T.Assistant, from 8.6.98 and three Secondary Grade Teachers, from 8.6.98, 4.6.98 and 8.6.98, were approved by the District Educational Officer, Thuckalay. The appointment of two Secondary Grade Teachers in the newly sanctioned post, from 8.6.98, was not approved as they are not having the required qualifications for the post of Secondary Grade Teacher. The appointment of one B.T.Assistant and 3 Secondary Grade Teachers in the newly sanctioned posts were approved on 4.1.2000, on condition that if and when the relevant post is found to be surplus, the appointment will be cancelled and the incumbent of the post is bound to refund the salary already drawn. The approved incumbents of the newly sanctioned posts were paid the salaries due to them for the period up to May, 2000. The second respondent, in his proceedings Na.Ka.No.36480/03 /99, dated 8.5.2000, has informed that all the five posts of secondary Grade Teachers and one post of B.T.Assistant, newly sanctioned to the petitioner school, are resumed back for want of sufficient students strength. On receipt of the second respondent’s order the payment of the salary to the concerned individuals was stopped from June, 2000 and it was intimated to the Correspondent of the School, in Na.Ka.No.7004/A2, dated 23.6.2000, issued by the District Educational Officer, Thuckalay, the fourth respondent herein. As it was informed that the approval of the appointments made in the newly sanctioned posts were irregular, the fourth respondent, in his proceedings Na.Ka.No.7004/A2, dated 11.9.2000, had cancelled the approval of the appointment of the concerned individuals and directed the management of the school to refund the salary paid to the relevant incumbents of the newly sanctioned posts, to the Government account. Therefore, the writ petition is devoid of merits and it is liable to be dismissed.
9. The main contentions of the learned counsel appearing on behalf of the petitioner School is that the impugned order of the second respondent, dated 8.5.2000, is erroneous and illegal and invalid in the eye of law as the petitioner school is having sufficient strength to retain the five secondary grade posts and one B.T.Assistant post, based on the strength for the academic years 1997-98, 1998-99, 1999-2000 and 2000-2001. The non-furnishing of the details as to how the posts were found to be surplus, in the impugned order passed by the second respondent, is contrary to the principles of natural justice and therefore, it is arbitrary and unreasonable. No notice had been given either to the staff members who are adversely affected or to the management of the petitioner School. No enquiry was conducted, nor a verification was done to assess the strength of the students. The teachers, having been appointed in sanctioned posts and granted the necessary approval by the Department and their salaries having been paid, are entitled to continue in service and receive the salary, even if the petitioner school is having less number of students, as alleged by the respondents. Such teachers ought to have been retained in the same school or they should have been absorbed in other needy schools, in accordance with Section 26 of the Tamilnadu Recognised Private Schools (Regulation) Act, 1973. Failure to consider this aspect before passing the impugned order vitiates the entire proceedings.
10. The action of the respondents is in contravention of the principle of estoppel as the first respondent had sanctioned the post only after due verification of the strength of the students and on the basis of the particulars furnished by the petitioner school. The posts were sanctioned and the necessary approval was also granted. Thereafter, it is not open to the respondents to declare that the posts were surplus. The respondents have not taken into account the strength of the students in the English Medium sections of the petitioner school for the assessment of the student teacher ratio. The action taken by the second respondent is arbitrary and without jurisdiction, in view of G.O.Ms.No.525 School Education (D1) Department, dated 29.12.97 and Section 26 of the Tamilnadu Recognised Private Schools (Regulation) Act, 1973. Therefore, the impugned order of the second respondent is liable to be quashed.
11. In view of the contentions made by the learned counsels for the petitioner, as well as for the respondents and on a perusal of the records available before this Court, it is seen that the Government of Tamilnadu, the first respondent herein, had issued an order in G.O.Ms.No.523, School Education Department, dated 29.12.97, sanctioning additional posts of Secondary Grade Teachers to several schools, including the petitioner school. Five additional Secondary Grade posts and one B.T.Assistant Post were sanctioned, with effect from 1.6.97, after taking note of the over all strength of the students in the petitioner school, in the teacher student ratio of 1:50. However, by an order of the second respondent, dated 8.5.2000, made in Na.Ka.No.36480/G3/99, the additional posts sanctioned were asked to be surrendered. However, no details including the strength of the petitioner school were given in the impugned order. Prior notice was not issued by the second respondent, either to the management of the petitioner school or to the teachers who were employed in the sanctioned posts, before the impugned order had been passed. The teachers had been appointed in the sanctioned posts and the necessary approval was also granted by the Education Department. The teachers had been paid the salary from their respective dates of appointment. Even if the strength of the students of the school falls to a lower level, the surplus teachers are to be absorbed in other needy schools, in accordance with Section 26 of the Tamilnadu Private Schools (Regulation) Act, 1973. Therefore , the sanctioned posts cannot be withdrawn based on the students strength of the school.
12. The impugned order had been issued by the second respondent without actual verification of the students strength of the petitioner school, including the students studying in the English medium section. There is no reason shown by the second respondent as to why the students in the English medium section should not be counted, while calculating the student strength of the school at the relevant point of time. Further, according to G.O.Ms.No.525, School Education (D1) Department, dated 29.12.97, it is clear that the teachers who are surplus, due to the fall in the strength of the students, are to be re-deployed to other needy schools. The re-deployment of staff shall be done by the Director of School Education and the Director of Elementary Education or by the officers who are authorised by them. In cases where such deployment is felt to be difficult, the surplus staff shall be allowed to continue in the same school till their retirement and then their scale of pay shall be revised as per the norms.
13. In such circumstances, it is found that sufficient reasons have not been shown to sustain the impugned order , dated 8.5.2000, passed by the second respondent. However, in G.O.Ms.No.525, School Education (D1) Department, dated 29.12.97, the teacher-pupil ratio has been fixed at 1:40. Further, the representations, dated 2.6.2000 and 15.9.2000, has been submitted by the petitioner school to the second respondent claiming that there is no surplus of teachers in the petitioner school. However, the impugned order has been passed, without considering the representation made by the petitioner school.
14. In such circumstances, the impugned order passed by the second respondent is set aside. However, it is open to the respondents to take appropriate action to verify the strength of the students in the petitioner school and to pass appropriate orders, after giving sufficient opportunity to the petitioner school, as well as the teachers concerned, before passing further orders thereon, either to continue the concerned teachers in the petitioner school or to re-deploy them in other needy schools, as found necessary, in accordance with the Government Order and the provisions of the Tamilnadu Private Schools (Regulation) Act, 1973. In respect of the payment of salary to the concerned teachers, who were employed in the posts which were sought to be rescinded, the respondents may pass appropriate orders, taking into consideration the present order passed by this Court in the above writ petitions.
The writ petitions are partly allowed to the extent noted above. No costs.
csh
To
1. The Secretary,
1.The Government of Tamil Nadu,
School Education Department, Fort St.
George, Chennai-600 009.
2.The Director of School Education,
College Road, Chennai-600 006.
3.The Chief Educational Officer,
Nagercoil, Kanyakumari District.
4.The District Educational Officer,
Thucklay and Post,
Kanyakumari District
[ PRV / 16182 ]