BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/10/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR W.A.(MD)No.476 of 2007 and M.P(MD).No.2 of 2007 The Correspondent, Our Lady of Lourdes Girls Higher Secondary School, Dindigul. ... Appellant Vs. 1.Silva Fernando 2.The District Educational Officer, Dindigul. 3.The Chief Educational Officer, Dindigul. ... Respondents PRAYER Writ Appeal filed under Clause 15 of Letters Patent, against the order of the learned Single Judge dated 14.08.2007, passed in W.P.No.5350 of 2007. !For Appellant ... Mr.Veera Kathiravan ^For Caveator ... Mr.S.Kadarkarai For Respondent ... Mrs.V.Chellammal Nos.2 and 3 Special Government Pleader :JUDGMENT
(Judgment of the Court was delivered by P.R.SHIVAKUMAR, J)
This Writ Appeal is directed against the order of this Court dated
14.08.2007 made by the learned Single Judge in W.P.No.5350 of 2007.
2. We have heard the submissions made by Mr.Veera Kathiravan,
learned counsel appearing for the petitioner, by Mr.S.Kadarkarai, learned
counsel appearing for the caveator and also by Mrs.V.Chellammal, learned
Special Government Pleader appearing for the respondents 2 and 3.
3. The first respondent herein had filed the above said writ
petition praying for the issue of a Writ of Mandamus, forbearing the appellant
from interfering with her right to continue in service as Physical Education
Teacher in the appellant’s School by appointing any other person to the said
post in the place of the first respondent/writ petitioner. She had also prayed
for a consequential direction for the disbursement of her salary on the basis of
last pay drawn by her.
4. According to the first respondent/writ petitioner, she was
appointed in the appellant’s school as Junior Grade Physical Education Teacher
as against a sanctioned post in a permanent vacancy with effect from 02.06.2005
initially on a consolidated pay of Rs.3,000/- per month. However, as per the
subsequent order of the District Educational Officer, she was regularized and
was paid time scale of pay with effect from 02.06.2006. While so, the appellant
took a stand that the first respondent/writ petitioner, hailing from an outside
District, could not set up a house in Dindigul and hence, she wanted to resign
her job and that she had also affixed her signature in the Service Register for
the said purpose. With the above said contention, the appellant Management
wanted to dispense with the services of the first respondent/writ petitioner. In
such circumstances, the first respondent/writ petitioner gave a complaint to the
District Educational Officer, who in turn, sent a letter to the appellant
Management directing the Management to furnish the particulars of the
resignation letter, if any, given by the first respondent/writ petitioner to the
Department. Meanwhile, the appellant had also issued an order appointing one
Selvi.J.Jenitta as Junior Grade Physical Education Teacher in the place of the
first respondent/writ petitioner with effect from 04.06.2007 and sent the same
for the approval of the District Educational Officer. In the said appointment
order, the appellant had stated that the post fell vacant due to the resignation
of the first respondent/writ petitioner on 31.05.2007 After Noon. Under the
above said circumstances, the first respondent/writ petitioner had approached
this Court for the reliefs indicated above.
5. In the writ petition, obviously knowing the weakness of the
earlier stand as if the first respondent/writ petitioner had resigned, the
appellant Management had taken an altogether different stand to the effect that
the appointment of the first respondent/writ petitioner was purely on temporary
basis for a period of one year alone (from 02.06.2006 to 31.05.2007) and that
the same was a stop gap arrangement till a regular appointment was made.
6. The learned Single Judge, after hearing both sides and upon
perusing the materials brought on record, held that the appointment was not
temporary, but was made on regular basis. Regarding the other contention that
the writ petitioner had resigned, the learned Single Judge relied on the
judgment of Madras High Court in K.Chettiappan Vs. The Chief Educational
Officer, Ramanathapuram and others reported in 2000 Writ L.R.300 and held that
Rule 17-A of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974
would apply to minority schools also. The learned Single Judge has also observed
that the question whether the first respondent/writ petitioner had resigned, has
got to be enquired into by the competent authority, the Chief Educational
Officer, Dindigul in this case as the appellant’s school is a Higher Secondary
School and that till the Chief Educational Officer determines the issue, there
is no question of appointing any substitute in the place of the first
respondent/writ petitioner.
7. The learned counsel for the appellant contended that the
appellant’s school being a minority school did have utmost independence in the
matter of appointment and removal of teachers and that Rule 17-A of the Tamil
Nadu Recognised Private Schools (Regulation) Rules, 1974 could not provide any
restriction on such right of the minority institution. The learned counsel for
the appellant further contended that the first respondent/writ petitioner could
not be granted the relief even assuming that the said rule was applicable to
minority schools, since: (i) her appointment was for a specified time made
temporarily as a stop gap arrangement till regular appointment was made; and
(ii) she had resigned the job.
8. We are not in a position to countenance the above said argument
advanced on behalf of the appellant. We are constrained to point out the
contradictory stands taken by the appellant. In fact, before the first
respondent/writ petitioner approached this Court by filing the writ petition,
the appellant was holding out that the post of Junior Grade Physical Education
Teacher in the appellant’s school fell vacant due to the resignation of the
first respondent/writ petitioner on 31.05.2007. Even the appointment order said
to have been issued in favour of Selvi.J.Jenitta on 04.06.2007 contains the
following statement meaning that the post fell vacant due to the resignation of
the first respondent/writ petitioner on 31.05.2007:-
“vkJ gs;spapy; clw;fy;tp Mrphpiaahf gzpg[hpe;j jpUkjp blh.rpy;th
gh;dhz;Blh vd;gth; 31.05.2007 gpw;gfy; uh$pehkh bra;jjpdhy; Vw;gl;l fhyp
gzpaplj;jpy; bry;tp $h.b$dpl;lh vd;gtiu clw;fy;;tp Mrphpiaahf jFjpfhd;
gUtj;jpduhf 04.06.2007 fhiy Kjy; fhyKiw Cjpa tpfpjj;jpy; epakdk;
bra;ag;gLfpwhh;.””
Even in the communication addressed on 14.06.2007 for the approval of the
appointment of Selvi.J.Jenitta, it had been stated that the said post fell
vacant due to the resignation of the first respondent/writ petitioner on
31.05.2007. The very same point was reiterated in the subsequent communication
dated 20.06.2007 addressed to the District Educational Officer. Only under such
circumstances, the first respondent/writ petitioner has come forward with the
writ petition taking a definite stand that she never tendered any resignation.
The further stand taken by the appellant is to the effect that though no
separate letter of resignation was given by the first respondent/writ
petitioner, she affixed her signature in the note made in the Service Register
for that purpose and that the same is enough to show that the first
respondent/writ petitioner resigned her job on her own volition. The absence of
any separate resignation letter obtained from the first respondent/writ
petitioner will probabalise her case that she had not resigned her job on her
own volition. However, in view of the specific provision found in Rule 17-A of
the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, any
resignation of the teachers of the aided schools has got to be approved by the
Chief Educational Officer in case of High Schools, Higher Secondary Schools and
Teachers’ Training Institutes.
9. The said rule as per the judgment of this Court in K.Chettiappan
Vs. The Chief Educational Officer, Ramanathapuram and others reported in 2000
Writ L.R.300, cited above is applicable to the minority aided schools as well.
The said safeguard has been provided in order to prevent the teachers from being
forced to sign ante dated resignation letters or blank sheets containing their
signatures being obtained at the time of appointment to be used later on as a
letter of resignation. For the sake of convenience, Clause (4) of Rule 17-A of
the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 is extracted
here under:
“No teacher or other person employed in a private school shall be
relieved from service on the strength of resignation letter. The resignation
letter shall, on receipt, be sent to the Chief Educational Officer concerned in
respect of teacher and other persons employed in High Schools, Higher Secondary
Schools and Teachers’ Training Institutes and to the District Educational
Officer concerned in respect of teacher and other person employed in a Pre-
primary, Primary and Middle Schools. The Chief Educational Officer or District
Educational Officer concerned shall, in turn, get the confirmation of the
teacher or other person employed, as the case may be, as to the fact of such
resignation and then accord his approval to relieve the teacher or other person
employed, as the case may be, from service.”
A perusal of the above said rule reveals that the management does
not have the power to relieve a teacher on the strength of alleged resignation
without and before ever the competent authority (Chief Educational Officer)
accords approval. In this case admittedly no approval was obtained before
relieving the first respondent/writ petitioner. It is obvious that the
management has acted disregarding the above mentioned mandatory provision. Thus
the act of the management in disengaging the writ petitioner as Physical
Education Teacher on the strength of alleged resignation, stands vitiated.
10. The initial stand of the appellant Management was that the post
of Physical Education Teacher fell vacant consequent to the resignation of the
said post by the first respondent/writ petitioner on 31.05.2007. Only during the
pendency of the writ petition, the appellant Management shifted its stand to
raise a new contention that the first respondent/writ petitioner was appointed
purely on temporary basis, as a stop gap arrangement, till a regular appointment
was made. To substantiate the said stand, the appellant seems to have obtained a
letter dated “Nil” from the first respondent/writ petitioner to the effect that
she agreed to work for a period of one year from 02.06.2006 to 31.05.2007. The
said letter, by no stretch of imagination, can be construed as a valid piece of
evidence to show that the appointment was made purely on a temporary basis, as
a stop gap arrangement, till a regular appointment was made. The contents of the
very short letter in the vernacular language is as under:
“jA;fs; eph;thfj;jpw;Fl;gl;l gs;spapy; clw;fy;tp Mrphpiaahf Xuhz;L
gzpg[hpa 2.6.06 Kjy; 31.5.07 Koa gzpg[hpa xg;g[f;bfhs;fpBwd;. jA;fs;
eph;thfj;jpd; xGA;Ff;F fl;Lg;gl;L elg;Bgd; vd;W cWjp TWfpBwd;.”
This can, at best, be interpreted to mean that the first respondent/writ
petitioner gave an undertaking to work in the said school at least for a period
of one year. When the contents of the said letter is considered in the light of
the earlier stand taken by the appellant that the first respondent/writ
petitioner resigned her job on 31.05.2007, one can without any hesitation arrive
at a conclusion that the said letter is now sought to be used to support the
stand of the appellant that the appointment of the first respondent/writ
petitioner was on a temporary basis which is otherwise untenable.
11. After taking into consideration all the above said facts, we are
of the considered view that the new stand taken by the appellant Management as
if the first respondent/writ petitioner had been appointed purely on temporary
basis for a period of one year alone cannot be countenanced and that the learned
Single Judge has rightly negatived such a stand taken by the appellant.
12. The learned counsel for the appellant contended further that the
learned Single Judge should not have directed the appellant to relieve
Selvi.J.Jenitta without even hearing her. In paragraph-8, we have clearly
observed that the act of the Management in disengaging the writ petitioner as
Physical Education Teacher without getting the approval of the Chief Educational
Officer stands vitiated, meaning that the post shall not fall vacant unless the
present incumbent is relieved in accordance with the Rule 17-A. The learned
Single Judge has rightly observed that appointing a substitute for the writ
petitioner would not arise till the matter is decided by the Chief Educational
Officer. In fact the learned Single Judge has not expressed any final opinion
regarding the alleged resignation.
13. In view of the above said facts and circumstances of the case,
we do not think that the learned Single Judge has committed any error in coming
to the conclusion that the question of alleged resignation of the post of
Physical Education Teacher by the first respondent/writ petitioner has got to be
enquired into by the Chief Educational Officer and that till such a decision is
made by the Chief Educational Officer, there is no question of appointing any
substitute in the place of the first respondent/writ petitioner. We see no
reason to interfere with the well considered order of the learned Single Judge.
There is no merit in the Writ Appeal and hence, the same deserves to be
dismissed.
14. In the result, this Writ Appeal is dismissed. However, there
shall be no order as to payment of costs. Consequently, connected M.P.No.2 of
2007 is also dismissed.
SML
To
1.The District Educational Officer,
Dindigul.
2.The Chief Educational Officer,
Dindigul.