BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01/02/2006
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.(MD).No. 8423 of 2005
A.T. Aiyam Perumal .. Petitioner
Versus
1. The District Educational Officer,
Nagercoil,
Kanyakumari District.
2. The Chief Educational Officer,
Nagercoil,
Kanyakumari District.
3. The Secretary,
S.M.S.M. Higher Secondary School,
Suchindram-629 704,
Kanyakumari District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus to call for the records of the
Ist respondent relating to the communications bearing No.O.Mu.No.11405/Aal/04
dated 30.5.2005 and quash the same and consequently direct the Ist respondent to
approve the 3rd respondent's proposal dated 21.11.2002 promoting the petitioner
as Physical Director in S.M.S.M.Higher Secondary School, Suchindram, Kanyakumari
District from the post of Physical Education Teacher with all consequential
benefits.
!For Petitioner .... Mr. G.R.Swaminathan
^For Respondents 1 and 2 .... Mr.K.V. Vijayakumar,
Special Government Pleader.
:ORDER
Heard Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
and Mr.K.V.Vijayakumar, the learned counsel for respondents 1 and 2.
2. By consent of learned counsel on either side the writ petition itself
is taken up for final hearing.
3. This writ petition has been filed against the order of the first
respondent dated 30.5.2005 and also for a direction to approve the proposal
dated 21.11.2002 sent by the 3rd respondent promoting the petitioner as Physical
Director in the 3rd respondent school from the post of Physical Education
Teacher.
4. The case of the petitioner is that he was appointed as Physical
Education Teacher in the 3rd respondent school on 30.6.1993 and the said post
has been approved by the Educational Authority. The third respondent being the
Aided School covered by the Provisions of the Tamil Nadu Recognised Private
Schools (Regulation) Rules 1974, when there was a vacancy due to the retirement
of one Rupawathi for the post of Physical Director, the petitioner was promoted
as Physical Director and the third respondent has sent a proposal dated
21.11.2002 to the first respondent for approval of the said appointment and
pursuant to the said proposal, the first respondent has passed the impugned
order rejecting the proposal on the basis of Rule 15 (4) (ii) (c) of the Tamil
Nadu Recognised Private Schools (Regulation) Rules 1974 stating that the
Management should have obtained prior approval before promoting the petitioner
to the post of Physical Director and in that view, the papers regarding the
proposal were returned by rejecting the same.
5. Aggrieved by the said impugned order, the petitioner has filed this
writ petition.
6.The respondents 1 and 2 have filed their counter affidavit along with
the petition to vacate the interim direction already granted by this court. As
per the counter affidavit, it is the case of the respondents 1 and 2 that the
3rd respondent school, being an Aided school should have the strength of more
than 400 students in the 11th and 12th standard for the purpose of getting the
post of Physical Director. As far as the third respondent school is concerned
taking into consideration the fact that the strength of the students in 11th
and 12th standard was only 360 students during the relevant period of 2002-
2003, for which the proposal was sent and even in the subsequent years 2003-
2004, 2004-2005 the student strength of the 3rd respondent school was 365, 375
respectively and therefore as per the G.O.Ms.No.525 dated 29.12.1997, the third
respondent school is not entitled for the post of Physical Director. It is
also reiterated in the counter affidavit that inasmuch as the appointment of the
petitioner is covered under Rule 15 (4) (ii) (c) of the Tamil Nadu Recognised
Private Schools (Regulation) Rules 1974, the non-obtaining of prior approval
before promoting the petitioner as Physical Director in the 3rd respondent
school would amount to violation of the provisions of the said Rule. Therefore
the impugned order is in accordance with law.
7.Mr.G.R.Swamination, the learned counsel for the petitioner would raise
the points which are as follows: According to him under the provision of Rule
15 (4) (ii) (c) of the Tamil Nadu Recognised Private Schools (Regulation) Rules
1974, the question of obtaining prior permission from the District Educational
Officer is contemplated only in cases where appointment of teachers are made
from other schools or by way of direct recruitment. According to the learned
counsel for the petitioner and inasmuch as it is only the promotion of the
petitioner from the post of physical education teacher to the post of Physical
Director in the same school, it is squarely covered under the Rule 15 (4) (ii)
(a)(b) of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974
and, therefore, the question of getting prior approval is not contemplated as
per said Rules. Therefore, according to the learned counsel for the petitioner,
the impugned order should be set aside even on this score. That apart, the
learned counsel for the petitioner raised the other contentions, namely, that
even though G.O.Ms.No.525 dated 29.12.1997 contemplates that to have the post
of Physical Director, there must be a minimum strength of 400 students to be
counted in 11th and 12th standard. The Government itself, subsequently passed
another G.O. 4(d) No.1 School Education Department dated 21.1.2000, which is
also relating to the appointment of Physical Directors. It is stated that in the
said Government order that Corporation and Aided Schools, for the purpose of
arriving at the student strength of 400, the student strength in the 9th to
12th standards is to be counted. Therefore, by virtue of the subsequent G.O.
4(d) No.1 School Education Department dated 21.1.2000, the petitioner’s
appointment which is one relating to the year 2002-2003, ought to be
considered based on the said G.O. 4(d) No.1 School Education Department dated
21.1.2000 and taking into consideration of the student strength of 9th to
12th standard for the period 2002-2003, the student strength of the 3rd
respndent school was much more than the required total strength of 400.
According to the leaned counsel for the petitioner, the contention raised in
the counter affidavit cannot be sustained.
8. Mr.K.V.Vijayakumar, the learned Special Government Pleader for
respondents 2 and 3, who reiterated the contents in the counter affidavit,
submitted that even for the post of Physical Director there is no eligibility
norms fixed by the 3rd respondent and it is not mandatory on the part of the
first respondent to approve any promotion. Therefore he would also reiterate
that the prior approval is required as per Rules. It is also submitted that
inasmuch as the authority after verification found that the required student
strength was not available in the 3rd respondent-school, it is not open to the
petitioner that the promotion is as a matter of right.
9. Admittedly, the petitioner’s appointment was as Physical Educational
Teacher in the 3rd respondent school and was well within the sanction strength
approved by the Educational Authority namely the first and second respondents.
Now the question raised in this case is in the vacancy arose due to retirement
of previous teacher as Physical Director, the petitioner was sought to promoted
as Physical Director in the 3rd respondent school and the same is covered by
Rule 15 (4) (ii) (a)(b) of the Tamil Nadu Recognised Private Schools
(Regulation) Rules 1974. Rule 15 (4) (ii) (a)(b) of the Tamil Nadu Recognised
Private Schools (Regulation) Rules 1974 reads as follows:
“(4) (i) Promotion shall be made on grounds of merit and ability, seniority
being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of teachers shall be made by the
following methods:-
(i) Promotion from among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method (i) above,–
(a) appointment of other persons employed in that school, provided they are
fully qualified to hold the post of teachers;
(b) Appointment of teachers from any other school; (c) Direct recruitment.
In the case of appointment from any other school or by direct recruitment the
school committee shall obtain the prior permission of the District Educational
Officer in respect of Pre-primary, Primary and Middle School and that of the
Chief Educational Officer in respect of High Schools and Higher Secondary
Schools, Teachers’ Training Institutions setting out the reasons for such
appointment. In respect of corporate body running more than one school, the
schools under that body shall be treated as one unit for purpose of this rule.”
A fair reading of the said Rule would show that whenever vacancies arise in the
categories of teacher in a school the first method is that they must be
appointed from among qualified teachers in the same school and in cases where
there are no suitable candidates available in the same school, then the
appointment should be made from the other persons who are employed in that
school, which means not only teaching staff but also non teaching staff who is
qualified. In the absence of such persons available in the same school, then as
stated second above, it is open to make appointment of the teacher from any
other school. Even if from any other school such candidates are not available
as stated above, the school has to opt for direct recruitment. It is only in
respect of those two instances prior approval of the District Educational
Officer is required.
10.Therefore, there is force in the argument of the learned counsel for
the petitioner that in cases where the school seeks approval to promote a
teacher from the same school or any other person from among the qualified
teachers in the same school there is no question of prior approval by the
authority contemplated under the Rule. In the present case, admittedly, the
petitiioner is working in the approved vacancy in the 3rd respondent school and
is sought to be promoted as Physical Director there itself. Therefore it is
clear as per the said Rule that no prior approval is legally required.
11. Therefore, on the face of it, the impugned order is unsustainable and
looking into any angle it has to be set aside. Even though the impunged order
does not show anything about the strength of the students, in the counter
affidavit it is submitted about the strength of the students. Normally this
court will not allow anything which is not stated in the impugned order to be
explained in the counter affidavit. I am inclined to consider even the said
issues raised by the respondents 1 and 2 in the counter affidavit relating to
the G.O.Ms.No.525 for the purpose of fixing the sanction strength of student as
400 for approval of appointment of Physical Director and as per the norms
contemplated under the said G.O. in respect of 11th and 12th standard should be
taken into account and on that basis the first respondent would state the
total student strength in the 3rd respondent school for the year 2002-2003 is
below 400. It is submitted that even now the third respondent has not improved
the student strength and approval is not a matter of right, to appoint the
petitioner as Physical Director. Apart from the fact that in the Subsequent
G.O.No. 4(d) No. Dated 21.1.2000 while clarifying previous G.O. would show that
the student strength should be counted from the students 9th standard to 12th
standard, in this case. Certainly the sanction strength of the third respondent
school must be more than 400. That is not the reason for which the proposal was
rejected. If really that was an issue considered by the authority for rejecting
the proposal it is definitely required to be given fair opporutnity to the 3rd
respondent to show that during the relevant point of time it has the student
strength of more than 400. In the absence of such exercise, the impugned order
suffers from illegality, even on the second count. Looking at from any angle, I
am not inclined to accept the contentions raised on behalf of the respondents 1
and 2.
12. With the result, the impugned order is quashed and the writ petition
is allowed. There will be no order as to costs. Consequently the connected
W.P.M.P.9109 of 2005 and WVMP.No. 602 of 2005 are closed.
mvk
To
1) The District Educational Officer,
Nagercoil,
Kanyakumari District.
2) The Chief Educational Officer,
Nagercoil,
Kanyakumari District.
3) The Secretary,
S.M.S.M. Higher Secondary School,
Suchindram-629 704,
Kanyakumari District.