BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.8762 of 2005 and W.P.M.P.No.9493 of 2005 A.Imam Hussain ... Petitioner Vs. 1.The Joint Director of School Education (Higher Secondary), Directorate of School Education, College Road, Chennai. 2.The Chief Educational Officer Chief Educational Office, Thanjavur. 3.The District Educational Officer, District Educational Office, Thanjavur District, Pattukkottai. 4.M.K.N.Matharasa Trust, Rep. by its Administrator Cum Receiver, Now represented by its Secretary, S.Mohamed Aslam, Khadir Mohideen Boys Higher Secondary School, Adirampattinam, Thanjavur District-614 701. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct the 4th respondent to permit the petitioner to join duty as a Headmaster in the 4th respondent's school pursuant to the orders passed by the 3rd respondent dated 11.04.2005. !For Petitioner ... Mr.L.N.Prakasam ^For 4th Respondent ... Mr.V.K.Vijayaragavan :ORDER
Heard the learned counsel appearing for the petitioner and the learned
counsel for the respondents.
2. This writ petition is filed for a direction against the fourth
respondent to permit the petitioner to join duty as Headmaster in the fourth
respondent school pursuant to the order of the third respondent dated
11.04.2005.
3. The case of the petitioner is that the petitioner was appointed as
Headmaster in the fourth respondent school which is an aided minority school
governed by the provisions of the Tamil Nadu Recognised Private
Schools(Regulations) Act. Certain charges were framed against him on 17.11.2003
and the petitioner was kept under suspension on 03.12.2003. After the enquiry a
second show cause notice was issued to him on 13.02.2004. The petitioner has
submitted his resignation to the fourth respondent on 21.02.2004 which was
received by the fourth respondent on 24.02.2004 and on 25.02.2004 resignation
was accepted. The petitioner by his letters dated 19.04.2004, 17.05.2004 and
15.07.2004 has intimated the fourth respondent withdrawing his resignation
letter. According to the petitioner, the second respondent who is the authority
to approve the resignation has not approved the same. However, the fourth
respondent has passed an order on 21.07.2004 not permitting the petitioner to
continue as Headmaster which was challenged by the petitioner in W.P.No.909 of
2004. This Court while disposing of the said writ petition by an order dated
01.02.2005 has directed the third respondent- District Educational Officer to
dispose of the resignation letter of the petitioner dated 21.02.2004 which was
forwarded by the fourth respondent by his approval, within 15 days. The third
respondent District Educational Officer by his order dated 11.04.2005 has
refused the approval of the resignation letter of the petitioner dated
21.02.2004. Thereafter, the petitioner has requested the fourth respondent to
permit him to join duty by his letter dated 28.04.2005. Since the petitioner
has not permitted to join duty he has filed this present writ petition for a
direction to the fourth respondent to permit the petitioner to join duty in the
fourth respondent school pursuant to the order of the third respondent dated
11.04.2005.
4. The fourth respondent has filed counter affidavit. While admitting that
earlier this Court directed the third respondent to pass orders and the third
respondent by an order dated 11.04.2005 has also rejected the resignation, it is
contended the fourth respondent that inspite of the order passed by this Court
which was on 01.02.2005, long after the 15 days granted by this Court the third
respondent has passed order on 11.04.2005. It is also the case of the fourth
respondent that as per the rule 17 A of the Tamil Nadu Recognised Private
Schools(Regulations) Rules, since the fourth respondent school happens to be the
higher secondary school, it is the Chief Educational Officer namely the second
respondent who is the authority to accept or reject the resignation and
therefore, the order of the third respondent in rejecting the resignation is not
in accordance with the rules.
5. It is also the further case of the fourth respondent that the
resignation letter dated 21.02.2004 was accepted by the educational agency
through the receiver appointed pursuant to the order of the Court, on 24.02.2004
and therefore, there was no withdrawal of the resignation.
6. It is also the case of the fourth respondent that the receiver
appointed to maintain the said fourth respondent school who was the Hon’ble
Judge of this Court has found that lot of irregularities in the administration
of the school and the special fees and other accounts have not been properly
accounted for.
7. Mr.L.N.Prakasam, learned counsel for the petitioner would submit that
inasmuch as the order of suspension which was passed against the petitioner on
3.12.2003 can be operated only for a period of 2 months as per Section 22(3)(b)
of the Tamil Nadu Recognised Private Schools (Regulations) Act and thereafter it
may be extended by another two months by the educational authorities and after
the expiry of the four months period, the teacher of the private school is
deemed to have been automatically reinstated. In the present case, when the
suspension was on 03.12.2003 and admittedly no final order has been passed based
on the charge memo dated 17.11.2003, the petitioner is deemed to have been
reinstated after the lapse of two months from the date of suspension namely
03.12.2003 namely with effect from 02.02.2004, since it is not even the case of
the fourth respondent that further two months period was extended by the
educational authority as per the Act.
8. Further it is contended by the learned counsel for the petitioner that
as per the Rule 17(2)(ii) of the Rules farmed under the Said Act, the petitioner
shall be paid the subsistence allowance every month from the date of suspension
for not more than two months at half of the rate of pay in addition to the
dearness allowance etc.,. According to the learned counsel for the petitioner,
the petitioner was not even paid the subsistence allowance as per the rules.
9. It is the case of the learned counsel for the petitioner that it was
pursuant to the order of this Court passed in W.P.No.909 of 2004 dated
01.02.2005 directing the third respondent to pass orders on the letter of the
resignation of the petitioner dated 21.02.2004, the third respondent has passed
orders on 11.04.2005 not accepting the resignation letter. Since the said order
was passed pursuant to the order of this Court, the order passed by the third
respondent is valid in law and therefore, the petitioner is deemed to have not
resigned as the competent authority has rejected the proposal and not approved
the resignation.
10. The learned counsel would further contend that even assuming that as
per the Rule 17A(4) of the Tamil Nadu Recognised Private Schools (Regulations)
Rules 1974, since, the fourth respondent school happens to be a higher secondary
school, the Chief Educational Officer is the competent authority to accept or
reject the resignation letter, admittedly, the Chief Educational Officer, has
not accorded his approval for relieving the petitioner on the basis of the
resignation letter and therefore, the resignation is not deemed to have been in
operation.
11. On the other hand, Mr.V.K.Vijayaragavan learned counsel appearing for
the fourth respondent would submit that even assuming that this Court on an
earlier occasion in W.P.No.909 of 2004 by an order dated 01.02.2005 has directed
the third respondent to pass orders on the letter of the resignation of the
petitioner, inasmuch as under Rule 17A(4) of the Rules, it is the Chief
Educational Officer who is the competent authority to accord approval for
resignation, the order of the third respondent dated 11.04.2005 refusing to
grant approval for the resignation is only to be ignored. According to the
learned counsel for the fourth respondent there can be no estoppel against the
statute. When the statutory rule contemplates only the second respondent to
accord approval for the resignation, the order of the third respondent in
refusing to accord approval, even if it was passed based on the Court order
cannot make such order as valid.
12. He has relied upon various judgments to substantiate his contention
that when once the law directs the particular thing to be done in a particular
manner or the particular authority to do certain act, that authority alone can
do in the same manner. He would rely upon the judgment of the Supreme Court in
Hukam Chand Shyam Lal Vs.Union of India and others reported in AIR 1976 SC 789
to show that it is well settled that where the power required to be exercised of
a certain authority in a certain way it should be exercised in that manner and
all other modes of purposes are necessarily forbidden.
13. In addition to the said case, he has also relied upon the judgment of
the Supreme Court reported in AIR 1989 (SC) 617. He has also relied upon some
of the judgments of this Court including the one in B.Chandrasekaran and another
Vs.State of Tamil Nadu, by its Secretary and Commissioner (Revenue Department)
and others, reported in 2001 (3) CTC 353 and the judgment reported in 2006-1-
L.W.409 in V.Sarangapani(deceased) and others Vs. The Collector of Thanjavur
District at Thanjavur and another to show that when a statue contemplates a
particular authority to perform in a particular manner the same has to be done
only in that manner and the same authority and performance by any other
authorities is forbidden. He has also submitted that the fourth respondent is a
minority institution and therefore either Section 22(3)(b) or Rule 17A(4) does
not apply.
14. I have heard the learned counsel for the petitioner as also the
learned counsel for the respondents and perused the entire records.
15. The fourth respondent school which is governed by the
administrator/receiver appointed by this Court headed by the former Judge of
this Court, is a minority aided institution under the provisions of the Tamil
Nadu Recognised Private Schools (Regulations) Act and Rules made thereunder.
16. Section 22(3) of the said Act which states as follows:
“(3)(a) No teacher or other person employed in any private school shall be
placed under suspension, except when an inquiry into the gross misconduct,
within the meaning of the Code of Conduct prescribed under sub-section (1) of
Section 21, of such teacher or other person is contemplated.
b) No such suspension shall remain in force for more than a period of two
months from the date of suspension and if such inquiry is not completed within
that period, such teacher or other person shall, without prejudice to the
inquiry, be deemed to have been restored as teacher or other employee;
Provided that the competent authority may, for reasons to be recorded in
writing, extend the said period of two months, for a further period not
exceeding two months, if in the opinion of such competent authority, the inquiry
could not be completed within the said period of two months for reasons directly
attributable to such teacher or other person.”
17. Therefore, a teacher working in the aided school can be kept under
suspension in respect of an enquiry regarding misconduct within the meaning of
Code of Conduct and such suspension will be for a period of two months and if
the enquiry is not completed within that period the teacher is deemed to have
been restored. In any event only another period of two months can be extended
by the competent authority. In the present case, it is not even the case of the
fourth respondent that the competent authority has extended the period of
suspension of the petitioner. Therefore, while admittedly, the petitioner was
suspended on 03.12.2003 he was deemed to have restored as a teacher in the
fourth respondent school on 02.02.2004. It is also not the case of the fourth
respondent that any order has been passed based on the disciplinary enquiry and
in the mean time the petitioner has given a letter of resignation on 21.02.2004
to the fourth respondent.
18. It is the case of the fourth respondent that the fourth respondent
being run receiver appointed by this Court, has accepted the said resignation
of the petitioner on 24.02.2004 and therefore, the offer of resignation has been
accepted and in such event, there is no question of cancelling or withdrawing
the said resignation as stated by the petitioner on 19.04.2004, 17.05.2004 and
15.07.2004. It is in this regard, relevant to point out that Rule 17A of the
Tamil Nadu Recognised Private Schools (Regulations) Rules of 1974 which states
as follows:
“17A. Educational agencies not to obtain compulsorily resignation letter
either at the time of appointment or subsequently from employees in their
school.-(1) Whenever a teacher or other person employed in a private school,
tenders his resignation of appointment, he shall inform the fact of his
resignation in writing by registered post with acknowledgment due to the
District Educational Officer, Inspectress of Girls’ School or the Deputy
Inspector of schools concerned.
2)No teacher or other person employed in a private school shall give to
the educational agencies, at any time, undated or pre-dated resignation letter.
3)No educational agency shall insist or compel any teacher or other person
employed in a private school to give, at any time undated or pre-dated
resignation letter.
4)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.
5)Entries regarding the date of acceptance of resignation of appointment
shall be made by the Secretaryof the School Committee, in the Teachers’ Service
Registers of the teacher or in the Service Registers of the other persons
employed in a private school under proper attestation and duly countersigned by
the District Educational Officer or the Inspectress of Girls’ Schools, as the
case may be.
6)No substitue shall be appointed in the place of a teacher or other
person employed in a private school who has been relieved on the basis of the
resignation letter tendered by him, without obtaining prior approval of the
Chief Educational Officer concerned in respect of the teacher and other person
employed in High Schools, Higher Secondary Schools and Teachers’ Training
Institutions and the District Educational Officers concerned in respect of
teachers and other persons employed in Pre-primary, Primary and Middle Schools.”
19. A reading of the said Rule shows that any resignation letter tendered
by any teacher employed in an aided school has to be approved by the Educational
authorities under the Rule. It is also made very clear that unless and until
the educational authority contemplated approved the resignation, the teacher
cannot be relieved. In the present case, while it is admitted that the letter
of resignation was submitted by the petitioner on 21.02.2004 to the fourth
respondent and the petitioner has subsequently on 19.04.2004 and 17.05.2004 and
15.07.2004 has withdrawn the said letter of resignation, no educational
authority contemplates under Rule 17A(4) of the Rule has accorded any approval
to the resignation. While this is the admitted position irrespective of the fact
that the third respondent has refused to grant approval for the resignation, one
can safely infer that the resignation has not at all has come into effect. This
is because according to the learned counsel for the fourth respondent, the
authority contemplated for the purpose of granting approval for resignation in
respect of higher secondary school is the Chief Educational Officer namely the
second respondent whereas in the present case, the third respondent District
Educational Officer has passed orders on 11.04.2005 refusing to grant approval.
Therefore, according to him, the refusal by the third respondent has to be
ignored. Even if it has to be ignored, the fact remains that even the Chief
Educational officer who is the competent authority for the purpose of granting
approval has not infact granted approval for the resignation of the petitioner.
On the other hand, admittedly this Court has given direction to the third
respondent clearly holding that unless and until the approval is granted, the
resignation will not come into effect and based on the order the third
respondent has passed order on 11.04.2005 refusing grant of approval for the
resignation. It cannot be said to be either illegal or unauthorised. It is true
that by the hierarchy of judgments of the Apex court as well as this Court it
has been held that when a statute prescribes a particular Act to be done by a
particular person in a particular way, the same has to be done in accordance
with the Rules any other act other than the same is forbidden. It cannot be
construed as if this Court while passing the earlier order directing the third
respondent, has not taken into consideration the Rule 17A of the Rules. In any
event, without going into the said controversy as I have stated earlier, the
fact remains that even the competent authority as prescribed under Rule 17A(4)
namely, the Chief Educational Officer has not even granted any permission for
the resignation of the petitioner which is an unassailable fact.
20. In addition to what I have stated earlier that as per the said Section
22(3) (b) of the Act, the petitioner is deemed to have been restored as a
teacher on 2.02.2004, the letter of resignation submitted by the petitioner on
21.02.2004 has not been approved by the competent authority as on date and
therefore, the acceptance of the resignation by the fourth respondent is of no
legal consequence, for, such acceptance cannot go against the statutory
principles enunciated under Rule 17 A(4) of the Rules which contemplate the
approval before relieving a teacher based on the resignation letter. This means
that it is a prior approval which is a condition procedent for the purpose of
relieving the teacher based on a letter of this resignation. No where, either
under the Act or rules stated above, the minority school is exempted from the
purview of Section 22(3)(b) of the Tamil Nadu Recognised Private School
(Regulations) ACt and Rule 17A(4) of the Rules made thereunder.
21. In view of said categoric position and looking into any angle, I am of
the considered view that the petitioner is deemed to continue as the Headmaster
from 02.02.2004 and consequently, he is entitled for the monetary and other
benefits. As pointed out by the learned counsel for the petitioner that even
the subsistence allowance has not been paid for the period of suspension. I do
not think that the fourth respondent can deny the said right to the petitioner
especially when Rule 17A(2) (II)(v) contemplate such obligation for payment of
subsistence allowance during the statutory period of suspension.
22. In view of the reasons stated above and looking into any angle, I am
of the considered view that the writ petition should be allowed.
23. In the result, the writ petition is allowed and the fourth respondent
is directed to permit the petitioner to join the duty as Headmaster and pay the
salary to the petitioner from the date of deemed reinstatement as per the
provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act and
Rules made thereunder apart from the subsistence allowance. There is no order
as to costs. Consequently, connected W.P.M.P. is closed.
sms
To
1.The Joint Director of School
Education (Higher Secondary),
Directorate of School Education,
College Road,
Chennai.
2.The Chief Educational Officer
Chief Educational Office,
Thanjavur.
3.The District Educational Officer,
District Educational Office,
Thanjavur District,
Pattukkottai.
4.M.K.N.Matharasa Trust,
Rep. by its Administrator Cum Receiver,
Now represented by its Secretary,
S.Mohamed Aslam,
Khadir Mohideen Boys Higher Secondary
School,
Adirampattinam,
Thanjavur District-614 701.