BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/06/2010
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.9279 of 2008
&
W.P.(MD)No.9280 of 2008
and
M.P.(MD)Nos.1 & 2 of 2008
Bharathidasan Aided Primary School
Rep. by its Secretary
Pillayampettai,
Uma Maheswaranpuram Post,
Thiruvidaimaruthur Taluk,
Thanjavur. ... Petitioner
Vs
1.The District Elementary Educational
Officer, Thanjavur.
2.The Assistant Elementary Educational Officer,
Kumbakonam, ... Respondents
Prayer in W.P.(MD)No.9279 of 2008
Writ Petition has been filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, calling for the
records relating to the impugned order of the first respondent in
ref.Na.Ka.No.5574/08/B28, dated 10.10.2008 and quash the same and consequently
to forebear the respondent in any way interfering with the administration of the
petitioner School except without following due process of law.
In W.P.(MD)No.9280 of 2008:
#T.Amutha ... Petitioner
Vs
1.The District Elementary Educational
Officer, Thanjavur.
2.The Assistant Elementary Educational Officer,
Kumbakonam,
3.Bharathidasan Aided Primary School
No.375, Agaraharam,
Pillayampettai,
Uma Maheswaran Puram Post,
Thanjavur.
Rep. by its Correspondent ... Respondents
Prayer in W.P.(MD)No.9280 of 2008
Writ Petition has been filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, calling for the
records relating to the impugned order of the 2nd respondent in
ref.Na.Ka.No.999/08/A28, dated 13.10.2008 and quash the same and consequently,
directing the respondents 1 and 2 in any way interfering with the appointment of
the petitioner as in-charge Head Master of the 3rd respondent School except
without following due process of law.
!For Petitioner in both W.Ps ... Mr.Veera Kathiravan
^For Respondents ... Mr.S.C.Herold Singh
Government Advocate
For R3 in W.P.9280/09 ... Mr.F.Deepak
:COMMON ORDER
Heard both sides.
2.The petitioner School is an aided primary School and it has got a School
Committee, constituted in accordance with the provisions of Tamil Nadu
Recognised Private School (Regulation) Rules 1974 herein after referred to a
Rules. One Mr.K.Kaliamoorthy was the Secretary of the School Committee and he
resigned his post on 02.04.2002 and in his place, T.Amutha was appointed on
03.04.2002. The appointment of T.Amutha was also approved by the District
Elementary Educational Officer, by his proceedings, dated 30.05.2002.
Thereafter, the said T.Amutha was also appointed as teacher in that School and
she was also acting as Head Master in-charge of the School and functioning as
Secretary of the School Committee. As a teacher working in that School and not
coming within the category of senior teachers and the said T.Amutha cannot be a
member of the School committee as per Rule 12 and therefore, she cannot be
permitted to act as Secretary of the School Committee. Hence, the first
respondent, by his proceedings, dated 10.10.2008 withdrew the recognition or
approval granted by them, approving T.Amutha as Secretary of the School by their
proceedings dated 30.05.2002 and also ordered direct payment of grant till a new
Secretary is appointed. This order of the first respondent, dated 10.10.2008 is
challenged in W,P.(MD)No.9279 of 2008.
3.Further, the Assistant Elementary Educational Officer issued
proceedings, dated 13.10.2008 stating that consequent to the order of the
District Elementary Educational Officer, dated 10.10.2008 direct payment has
been ordered in respect of School and as the post of Head Master is lying
vacant, the senior most teacher must be entrusted with all the responsibility of
the Head Master and directed the School Committee to appoint the senior most
teacher to act as Head Master in charge. This order of the 2nd respondent, the
Assistant Elementary Educational Officer, dated 13.10.2008 is challenged in
W.P.(MD)No.9280 of 2008.
4.The first respondent filed a counter, in both the writ petitions,
stating that an employee of the School cannot be nominated as representative of
the Educational Agency as per Rule 12 and P.Amutha is working as Secondary
Grade Assistant and is also working as Head Master in-charge and though the
School Committee can nominate the Head Master as Secretary, as the said T.Amutha
is not holding the post of Head Master, she could not claim the post of
Secretary nor she can be appointed as Secretary and the management also failed
to bring to the notice of the Department about the appointment of T.Amutha as
Secondary Grade teacher and as per Rule 12 of the said Rule, the said T.Amutha
cannot be a member of the School committee and in-turn, she can not be appointed
as Secretary of the School Committee and therefore, the order of the 2nd
respondent, dated 10.10.2008 is in consonance with Rule 12 and 13 of the Tamil
Nadu Private School Regulation Act.
5.It is further stated that before passing the impugned order, the School
Committee was asked to submit their remarks and the management has given a reply
that the petitioner viz., T.Amutha, is acting as Head Master and therefore, as
per the Rule 13 of the Act, an Head Master can be appointed as Secretary of the
School. But as per Rule 12 and 13 only a Head Master, whose appointment ratified
by the Department can be appointed as Secretary and T.Amutha was appointed as
in-charge Head Master and the same was not ratified and in-charge Head Master
cannot become the Secretary of the School Committee. It is further stated that
as per Rule 15(4) only senior most teacher can be appointed as Head Master of
the School and T.Amutha, the petitioner in W.P.(MD)No.9280 of 2008 is not the
senior most teacher and hence, she cannot be appointed as Head Master in-charge
of the School and as the post of Head Master was not duly filled up and T.Amutha
is not competent to act as Head Master in-charge, the second respondent has
passed the impugned order, dated 13.10.2008 directing the senior most teacher in
that School to act as Head Master to receive the grant of aid provided by the
Government. It is further stated that T.Amutha is not competent person to act as
Secretary and she is not the senior most teacher and therefore, the order passed
by the 2nd respondent is valid in law.
6.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
in both the writ petitions, submitted that before issuing the proceedings by the
first respondent, dated 10.10.2008, no opportunity was given to the petitioner
School about the withdrawal of approval granted to T.Amutha as Secretary of the
School and also in respect of making direct payment of grant in aid and
therefore, the order is bad in law and is liable to be set aside. He further
submitted that the first respondent, by his proceedings, dated 30.05.2002,
approved the appointment of T.Amutha as Secretary of the School Committee and
having approved her appointment as Secretary, the first respondent ought to have
issued the show cause notice calling upon the management why her appointment as
Secretary can not be withdrawn on the ground that she is a teacher employed in
the School and without issuing the show cause notice, the approval cannot be
withdrawn by the first respondent.
7.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
in both the writ petitions, further submitted that there is no prohibition under
Rule 13 of the Tamil Nadu Recognised Private School Act 1997 for an in-charge
Head Master, School teacher to be appointed as Secretary of the School Committee
and as a matter of fact, as per Rule 13 of the Act, Head Master can be appointed
as Secretary of the School Committee and T.Amutha has been appointed as Head
Master in-charge and hence, she can be validly appointed as Secretary of the
School Committee and therefore, the order of withdrawal is bad in law. He also
relied upon the judgment rendered in W.P(MD)No.3011 of 2004, dated 03.08.2007
wherein this Court has held that as per Rule 13(1) of the Tamil Nadu Recognised
Private Schools (Regulation) Rules, the educational agency shall nominate 6
members to the School Committee and the fact that such person may be also
working as a teacher in the same School is not relevant in deciding the issue
and relying upon the judgment, he further submitted that there is no prohibition
for a teacher to be appointed as Secretary of the School Committee and
therefore, the impugned notice is illegal and is liable to be set aside.
8.On the other hand, Mr.S.C.Herold Singh, the learned Government Advocate
appearing for the respondents 1 and 2 submitted that a perusal of the Rule 12
and 13 of the Tamil Nadu Recognised Private School (Regulation) Act, would make
it clear that the petitioner in W.P.(MD)No.9280 of 2008 could not be appointed
as member of the School Committee and therefore, she cannot be appointed as
Secretary of the School Committee, even though she happens to be the Head Master
of the School. He further submitted that when a Head Master retires or resigns,
the senior most teacher is to be appointed as Head Master and admittedly,
T.Amutha is not the senior most teacher and therefore, she cannot be appointed
as Head Master of the School and therefore, the 2nd respondent has passed the
impugned order, dated 13.10.2008 directing the senior most teacher to be
appointed as Secretary and Head Master in-charge till the vacant is properly
filled up and therefore, the 2nd respondent is justified in issuing the impugned
order.
9.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
in both the writ petitions submitted that as per Rule 15 of the Tamil Nadu
Recognised Private School(Regulation) Rules, promotion can be made on the basis
of the merit and ability and the seniority is not the only a criteria for
promoting a person and when the merit and ability of persons, who are considered
for promotion are approximately equal, then the seniority can be considered in
appointing a person and in this case, the School Committee was formed and the
School Committee, after considering the merits and ability of the N.Subramanian,
T.Amutha, A.Sathiyamoorthy and after evaluating the merit and ability, the
School Committee found that T.Amutha has secured more marks than the other two
persons and therefore, on the basis of the recommendation of the School
Committee, T.Amutha was appointed and there is no need for approval for the
appointment of Head Master by the Department and N.Subramanian, who is the
senior most teacher has also challenged, the appointment of T.Amutha as Head
Master, by filing writ petition No.239 of 2010 and as the said T.Amutha has been
validly appointed as Head Master of the School Committee, she can be validly
appointed as Secretary as per the provision of Rule 13 of the Rules and hence,
the proceedings issued by the respondents 1 and 2 cannot be sustained.
10.I have given my anxious consideration to the submission made by both
the counsels.
11.It is admitted that T.Amutha was appointed as Secretary of the School
Committee and the appointment was also approved by the first respondent, by his
proceedings, dated 30.05.2002. It is further admitted that when T.Amutha was
appointed as Secretary of the School Committee in the year 2002, she was not
working as teacher in that School and she become an employee of the petitioner’s
School only later. It is also not in dispute, when the impugned order, dated
10.10.2008 passed by the first respondent, the post of Head Master was lying
vacant and T.Amutha was appointed as acting in-charge Head Master and she was
not Head Master at that time. Therefore, the question that arises for
consideration is whether a teacher can be appointed as Secretary of the School
Committee or not?
12.The answer to the above question can be given by analysing the
provisions of Rule 12 and 13 of the Tamil Nadu Recognised Private School
(Regulation) Rules. Rule 12 speaks about the formation of the School committee
and Rule 13 speaks about the appointment of Secretary to the School Committee.
As per Rule 12, the School Committee is consisting of the following persons
viz., 1.Representatives of the Educational Agency (other than School employees)-
6, 2. Headmaster (Ex. Office)-1, 3. Senior most teachers-3, 4, PTA Nominee-1,
5.Senior most non teaching available-1. Therefore, it is seen from Rule 12 that
representative of the Educational Agency shall consist of persons other than
employees of the School and also Head Master and senior most teachers. As per
Rule 13 of the Act, the educational agency shall nominate one of its
representatives as Secretary and the Head Master can also be appointed as
Secretary of the School Committee by the educational Agency. Therefore, a
combined reading of Rule 12 and 13 of the said Rule makes it clear that out of
the 6 representatives nominated by the educational agency, one representative
can be appointed as Secretary of the School Committee. Admittedly, the
petitioner, T.Amutha is not the senior most teacher, who can become a member of
the School Committee under the category of senior most teachers and she is also
not the Head Master at that time and she could not be a representative of the
educational agency and it is clearly provided that only persons, who are not the
employees of the School can be appointed in the School Committee as
representative of the educational agency. Therefore, the continuance of
T.Amutha as Secretary of the School Committee, after she became an employee of
the School is not proper and it is against the provisions of rule 12 and 13 of
the Act . Though in the judgment rendered in W.P.(MD)No.3011 of 2004, the
learned Judge has held that Rule 13, permits educational agency to nominate one
of the member of the School Committee as Secretary of the School, the wording of
Rule 13 is not so. As per Rule 13(1), the Educational Agency shall nominate one
of its representatives as Secretary. The word representative used in Rule 13
must be the representative of the educational Agency appointed by the Agency as
per Rule 12. If any member of the educational agency can be nominated as
Secretary, then there is no meaning for the constitution of the School committee
consisting of representative of the educational Agency. In my opinion, a
Secretary can be appointed only from the members of the School Committee and the
Secretary can be either the representatives of the educational Agency nominated
under Rule 12 or the Head Master. Further, an employee of the School cannot be
nominated as representative of the Educational Agency. Admittedly, the said
T.Amutha is an employee of the School and hence, she cannot be a representative
of the educational Agency for being nominated as per Rule 12. Probably Rule 12
may not have been brought to the notice of the learned Judge while deciding that
case Further, admittedly, T.Amutha was appointed and approved as Secretary of
the School Committee, when she was not employed in the School and therefore,
when she became an employee of the School, she cannot hold the post of Secretary
of the first respondent and hence, the [proceedings of the 1st respondent, dated
10.10.2008 withdrawing the recognition granted in favour of T.Amutha as
Secretary of the School is perfectly in order and cannot be interfered with.
13.The other question that arises for consideration is whether the first
respondent is right in ordering direct payment of aid to the School after
withdrawing the recognition or approval of T.Amutha as Secretary of the School
Committee.
14.It is contended by Mr.Veera Kathiravan, the learned counsel appearing
for the petitioner, in both the writ petitions, that no opportunity was given to
the petitioner before passing of the impugned order and therefore, the order is
liable to be set aside.
15.On the other hand, it is submitted by the learned Government Advocate
appearing for the respondents 1 and 2 that before issuing the impugned order,
the School Committee was asked to submit its remarks about the functioning of
the Secretary by T.Amutha and the management has given reply to the effect that
T.Amutha is acting as Head Master and therefore, she was allowed to function as
Secretary and the explanation was not accepted as T.Amutha is only Secondary
Grade Assistant employed in the School and is not senior most teacher and as per
Rule 15 of the Act, only senior most teacher can be appointed as Head Master and
therefore, after giving opportunity to the petitioner, the impugned order was
passed and therefore, it cannot be stated that the order is illegal for want of
opportunity given to the petitioner.
16.It may be true that the first respondent had asked for explanation from
the management about the competency of T.Amutha from acting as Secretary of the
School Committee after she became an employee of the School. The management had
also replied that she is acting as Head Master in-charge and therefore, she is
competent to function as Secretary. As per Rule 15 of the Tamil Nadu Recognised
Private School ( Regulation) Rule, promotion can be given only on the basis of
merit and ability and the seniority can be considered when merit and ability are
approximately equal and therefore, the contention of the respondents that only
senior most teacher can be appointed as Head Master of the School and T.Amutha,
being a junior most cannot be appointed, cannot be accepted. Nevertheless, the
appointment of T.Amutha as Secretary of the School Committee was approved by the
first respondent, when she was not in employment of the School. When T.Amutha
became an employee of the School, as held supra, she cannot be appointed as
Secretary of the School, unless she is also appointed as Head Master of the
School. Admittedly, the first respondent has not approved the appointment of
T.Amutha as Secretary of the School on the basis that she has been appointed as
Head Master in-charge. In other words, the first respondent approved the
appointment of T.Amutha as Secretary of the School Committee only when she was
not an employee of the School. Once, she became an employee of the School she
losses her right to function as Secretary of the School unless she has been
validly appointed as Head Master or Headmistress and re-nominated as Secretary
in the capacity of Head Master. Therefore, in the absence of any approval of
T.Amutha as Secretary of the School in her capacity as Head Master of the School
by the first respondent, the said T.Amutha cannot function as Secretary of the
School and therefore, the first respondent was right in ordering direct payment
of salary by the impugned order. No-doubt, a proper show cause notice was not
given, but as per the counter of the first respondent, the management was asked
to submit his remarks about the competency of T.Amutha from acting as Secretary
and the reply submitted by the management was not satisfactory and hence, the
order was passed. Therefore, it cannot be stated that without hearing the
petitioner, the impugned order was passed by the first respondent. Nevertheless,
this question becomes academic, having regard to the subsequent events that had
taken place. Admittedly, a Selection Committee was appointed for selecting the
Head Master of the School and the Selection Committee considered the merit and
ability of three persons and found T.Amutha suitable as she secured more marks
than the two other persons and thereafter she was appointed her as Head Master.
As per Rule 13, Head Master can be appointed as Secretary. Therefore, there is
no impediment for the Head Master of the School to be nominated as Secretary of
the School Committee. As on date, the educational agency has not nominated the
said T.Amutha as Secretary of the School on the basis that she is the Head
Master of the School and hence, till such nomination is made by the educational
agency nominating her as Secretary of the School Committee, the first respondent
is justified in ordering direct payment of aid for the petitioner. Therefore,
the order of the first respondent in withdrawing the recognition granted to
T.Amutha as Secretary of the School Committee is perfectly valid. Further till
T.Amutha is validly nominated as Secretary of the School Committee on the basis
of her posting as Head Master, there is no proper person to represent the School
Committee and hence, the order of the 2nd respondent in ordering direct payment
of aid is valid. However, the 2nd respondent is not justified in directing
senior most teacher to be appointed as Head Master or Headmistress and it is
against the provision of Rule 15 of the Tamil Nadu Recognised Private School
(Regulation) Rules. Hence, the order of the 2nd respondent, dated 13.10.2008 is
set aside to that extent and the proceedings of the first respondent, dated
10.10.2008 is upheld.
17.In the result, W.P.(MD)No.9279 of 2008 is dismissed and W.P.(MD)No.9280
of 2008 is allowed in-part as indicated above. Consequently, Connected
Miscellaneous Petitions are closed. No costs.
er
To,
1.The District Elementary Educational
Officer, Thanjavur.
2.The Assistant Elementary Educational Officer,
Kumbakonam,
3.The Government Advocate,
Madurai Bench of Madras High Court,
Madurai.