BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/07/2011
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.(MD)No.2439 of 2008
and
W.P(MP)(MD)No.1 of 2008
C.Selvi ..Petitioner
Vs
1. V.Subramaniam
The Hindu Primary School,
representing Education Agency,
Keeranur, Athoor(via)
Tuticorin - 628 151.
2. The Hindu Primary School,
represented by its Secretary,
Keeranur, Athoor(via),
Tuticorin- 628 151.
3. The District Elementary Education Officer,
T.R.Naidu Street,
First Railway Gate,
Tuticorin - 628 002.
4. The Additional Assistant Elementary
Educational Officer,
Thenthiruperai, Alwar Thirunagari,
Tuticorin District. ..Respondents.
Prayer
Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus directing the respondents 3 and
4 to initiate proceedings under Section 12 and 47 of Tamil Nadu Recognised
Private Schools Act with Rule 17 3(1) and Annexure III(ii) of the Rules
thereunder as against the respondents 1 and 2 by directing the respondent 1 and
2 to pay the petitioners lawful salary for the period from 08.08.2005 to
6.10.2005 and from 1.7.2007 to 31.07.2007, increments as on 01.07.2005 and
01.07.2006, medical and other leave salary as directed by the medical board
emoluments such as pay commission DA for the period 2005 July, November and
December at 67% for the period 2006 March onwards at 71% and provident fund
payment including pongal bonus for the year 2006 by making necessary entries in
the service register insofar as the petitioner is concerned.
!For Petitioner ... M/s.M.Joseph Thatheus Jerome
^For Respondent-1... M/s.S.Mani
For Respondent-2 ... No appearance
For Respondents
3 and 4 ... Mr.D.Muruganandam
Addl.Govt.Pleader
:ORDER
The petitioner prays for issuance of a writ in the nature of Mandamus,
directing the respondent No.3 and 4 to initiate proceedings under Section 12 and
47 of the Tamil Nadu Recognized Private Schools Act, r/w Section 17(3)(1) an
Annexure III(ii) of the rules against the respondents 1 and 2 for having failed
to release the salary and other benefits due to the petitioner,as ordered by
this Court.
2. The petitioner filed W.P.No.1855 of 2006, praying for the issuance of
a writ in the nature of Prohibition restraining the respondents from proceeding
with the disciplinary proceedings without formation and sanction of duly
constituted School Committee, as contemplated under Section 15 to 18 r/w Rule
12 to 14 of the Tamil Nadu Recognized Private Schools Regulation Act, 1973 as
rules 1974 therein.
3. The Writ Petition was finally disposed of passing the following
operative portion, which reads as under:
3. In view of the same, the respondents 1 and 2 are directed to make
entries in the Service Register from 16.03.2005 till the petitioner is relieved
from the first respondent school on 17.11.2006. The entries shall be made by
the respondents 1 and 2 in the appropriate place in the petitioner’s service
Register within a period of two weeks and the same shall be forwarded to the
fifth respondent within a period of one week from thereafter. The fourth
respondent is directed to sanction the amount payable to the petitioner
including, the salary from 17.11.2006 within a period of two weeks thereafter.
In any entires are not properly made by the first respondent, it is open to the
petitioner to challenge the same under separate proceeding. The Writ Petition
is ordered accordingly. No costs. Consequently, connected Miscellaneous
Petition is closed.”
4. The case of the petitioner is that as he had objected to the illegal
admission of student, she was beaten up against which FIR stands registered,
and that the petitioner was also admitted to the hospital.
5. The petitioner thereafter filed another W.P.No.9232 of 2006, seeking
transfer from the school. The departmental proceedings initiated against the
petitioner were dropped and she was relieved from duty w.e.f. 30.11.2006 for
joining the school where she stood transferred.
6. The writ Petition filed by the petitioner for transfer was dismissed
with liberty to the petitioner to make a request to the department for transfer
to some nearby school.
7. The case of the petitioner set up in this Writ Petition is that in
spite of specific directions referred to herein above, the respondent school has
not released the salary due to the petitioner by taking effective steps to
approach the department for the release of grant-in-aid for payment to the
petitioner.
8. The stand taken by the respondent/school, is that as the petitioner was
under suspension he was only entitled to subsistence allowance.
9. This stand is totally misconceived. Once the departmental proceedings
were dropped, thus the salary canot be denied, specially in view of the order
passed by this Court in W.P.No.1855 of 2006.
10. It is the case of the respondent that the District Elementary
Educational Officer has rejected the claim of the petitioner. No such order was
conveyed to the petitioner by the Management, nor any order is attached with
counter. Therefore, no judicial notice can be taken of an order which was kept
secret by the respondent, as order becomes operative only on service.
11. In any case, it was the duty of the management to challenge the said
order, as the order is patently illegal. After the dropping of the departmental
proceedings, the District Elementary Educational Officer had no right to pass
such an order to deny the benefits of salary to an employee.
12. The fact stated above clearly shows that the management of the school
is harsh to the petitioner and not acted fairly which has forced the petitioner
to file this Writ Petition.
13. The Writ Petition is allowed and a writ in the nature of Mandamus is
issued directing the official respondents to initiate proceedings under Section
12 and 47 of the Tamil Nadu Private Schools Act r/w Rule 17 3(1) and Annexure
III(ii) of the Rules,on account of the failure of the management to pay the
salary to the petitioner inspite of specific directions by this Court, so that
the order of this Court is implemented in letter and spirit. The contention of
the petitioner that the service register has not been correctly entered deserves
to be rejected, as no prayer for quashing of the entries made in Service
Register is made nor the Service Register has been placed before this Court.
In absence of impugned order, this Court cannot issue any order in the nature
of certiorari, as prayed by the petitioner at the time of arguments. The entries
in service register therefore are upheld. No costs.
vsn
To
1. The District Elementary Education Officer,
T.R.Naidu Street,
First Railway Gate,
Tuticorin – 628 002.
2. The Additional Assistant Elementary
Educational Officer,
Thenthiruperai, Alwar Thirunagari,
Tuticorin District.