BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/02/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.507 of 2005 W.P.Nos.508,514,517,518,921,816,346 of 2005 and W.P.M.P.Nos.495,876,496,505,509,508,876,775 and 326 of 2005 and W.V.M.P.Nos.335,336,337,343,338,339,334 and 333 of 2005 G.R.Chitra ... Petitioner in W.P.No.507 of 2005 P.S.Sivakala ... Petitioner in W.P.No.508 of 2005 J.K.Kumari Bindu ... Petitioner in W.P.No.514 of 2005 R.Ambly ... Petitioner in W.P.No.517 of 2005 S.Meenakumari ... Petitioner in W.P.No.518 of 2005 S.Sandhia ... Petitioner in W.P.No.921 of 2005 C.Uma Sankar ... Petitioner in W.P.No.816 of 2005 P.Jayasree ... Petitioner in W.P.No.346 of 2005 Vs. 1.The Director of Elementary Education, D.P.I, Compound, College road, Nungambakkam, Chennai - 600 006. 2.The District Elementary Educational Officer, D.I.G. Office Compound, Thanjavur. ... Respondents 1-2 in all the Writ petitions
3.The Assistant Elementary Educational Officer,
Mathukkoor Union,
Mathukkoor,
Thanjavur District.
… 3rd Respondent in W.P.Nos.507, 517 and 816 of 2005
4.The Assistant Elementary Educational Officer,
Thiruvonam,
Thanjavur District.
… 3rd Respondent in W.P.No.508 and 518 of 2005
5.The Assistant Elementary Educational Officer,
Peravoorani,
Thanjavur District.
… 3rd Respondent in W.P.No.514 of 2005
6.The Assistant Elementary Educational Officer,
Sethuparachatram,
Peravoorani
Thanjavur District.
… 3rd Respondent in W.P.No.921 of 2005
PRAYER
Writ Petitions filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
records of the second respondent pertaining to his proceedings in
Na.Ka.No.4889/Aa1/2004 dated 20.12.2004 on his file forwarded to me by the 3rd
respondent by his Na.Ka.No.1210/A1 dated 21.12.2004, on his file and quash the
same, directing the respondents to re-instate the petitioner in service in
continuation of her work pursuant to her appointment by proceedings of the 2nd
respondent in Na.Ka.No.4889/Aa1/2004 dated 22.11.2004 and the consequential
proceedings of the 3rd respondent in Na.Ka.Nos.1210/A1/2004, 573/A1/2004,
834/A1/2004 dated 29.11.2004,30.11.2004 on his file with all monetary and other
benefits.
For Petitioners : Mr.K.N.Thampi
(W.P.Nos.507,508,514,517,518 and 921 of 2005)
: Mr.K.Sreekumaran Nair
(in W.P.No.346 of 2005)
: Ms.J.Ananthavalli
(in W.P.No.816 of 2005)
For Respondents : Mr.K.V.Vijayakumar,
Special Government Pleader.
C O M M O N O R D E R
Heard the learned counsel appearing for the petitioners and the learned
counsel appearing for the respondents. By consent of all the counsels, the writ
petitions are taken up for final hearing.
2. In all these cases, the respective petitioners are either legal heirs
of ex-service men or persons presently working in the military or persons who
are otherwise eligible for priority in the matter of appointments having
registered their respective names in the employment exchanges. All the
petitioners belong to the Kanyakumari District. They have passed the Higher
Secondary School Course examination conducted by the Government of Tamil Nadu.
Apart from that they have passed the Diploma examination Diploma in Teacher
Training Education. That apart, they have also passed the Tamil Language
Examination of the S.S.L.C conducted by the Government of Tamil Nadu and are all
qualified for appointment as secondary grade teachers under the Government of
Tamil Nadu.
3. Based on the sponsoring of their names by the employment exchange, they
were interviewed for the post of secondary grade teachers and their mark
certificates and other certificates relating to their qualifications were
verified. After such verification, the petitioners were appointed by the second
respondent as secondary grade teachers and posted them to various schools.
4. It is also admitted as seen in the counter affidavit that the
petitioners have produced the certificates and after the verification of the
same, they were provisionally selected for appointment as secondary grade
teachers, however, stating that the appointment was purely temporary without
conferring right to continue in service.
5. It is also stated by the learned counsel for the petitioners that by
their names having been sponsored to the second respondent, their registration
in the employment exchange comes to a close and therefore, the avenue of any
other employment through employment exchange has come to an end. Based on the
said appointments which were made in 2004 and the petitioners have also joined
in the respective places.
6. However, by virtue of the impugned orders which were passed invariably
in the end of 2004, the second respondent has cancelled the appointment of
petitioners on the ground that it was revealed afterwards that they have passed
S.S.L.C in October by writing only in Tamil examination obtaining 60 marks and
they have undergone Teacher Training Diploma in Malayalam. The impugned orders
also state that in the Thanjavur District, there is no provision for appointment
of teachers who have studied in Malayalam and there is no school having
Malayalam as instructing language.
7. The impugned orders are challenged on various grounds including on the
ground of principles of estoppel. Apart from the fact that the petitioners have
infact studied in Tamil and they have absolutely working knowledge of the Tamil
and capable of teaching the students in the secondary grade level, there was
absolutely no complaints from the students about their teaching in Tamil in
class rooms, since they have adequate working knowledge in Tamil.
8. It is also their case that they have studied Tamil in S.S.L.C. as a
second language and not after joined in the services but nearly 10 years before,
and at the time of interview and appointment, they have revealed all the
documents and it was only having satisfied about their qualifications, the
petitioners were appointed.
9. The impugned orders are also attacked on the ground of legitimate
expectation theory, on the basis that it was depending upon the passing of the
Tamil language, they were appointed as secondary grade teachers. On the other
hand, the second respondent filed the counter affidavit which has been adopted
by other respondents. In the counter affidavit, while admitting that the
petitioners have produced their certificates and after verification they were
provisionally selected and appointed as secondary grade teachers, the
respondents would say that the appointment are temporary without any right of
continuing the same.
10. It is also the case of the respondents that after the petitioners have
joined, it was found that they were teaching the students partly in Tamil and
partly in Malayalam and the same was brought to the notice of the second
respondent. It is the further case of the respondents that the complaints are
received from the parents and children that the petitioners are not well-versed
in Tamil.
11. The respondents further relied upon the rule 12A of the General Rules
for the Tamilnadu State subordinate Services in the light of a letter of the
Tamil Nadu Public Service Commission dated 20.06.2002 which reads as follows.:
“The Commission, after careful examination has in the light of the rule
12(A) of the General Rules for the Tamil Nadu State Sub-ordinate Services and
the eligibility condition furnished by the Secretary, Directorate of Government
Examinations in the letter second cited, decided that a pass in the Tamil
subject alone in the S.S.L.C Examination after entry into Govt. Service of an
individual whose mother tongue is other than Tamil Language and who have not
studied the Tamil in the S.S.L.C. Examination or in the College level, need not
be considered as an alternative qualification for a pass in the prescribed II
class Language Test/Advanced Language Test / Special Language Test in Tamil
Higher Grade conducted by the Tamilnadu Public Service Commission and they
cannot be considered as one possessing adequate knowledge in Tamil.”
12. The respondents would also states that as per G.O.Ms.No.1383 Education
dated 23.08.1988 under which the said rules for Tamil Nadu Elementary Education
Subordinate Service have been framed, it is stated apart from other
qualifications that “No person whose mother tongue is other than Tamil or who
has not acquired knowledge of Tamil in his High School Course or who has not
passed the second class language Test in Tamil shall be eligible for appointment
to any category in the service.” Therefore, according to the respondents, the
petitioners are not qualified.
13. I have heard the learned counsels appearing for the petitioners as
also the learned Special Government Pleader appearing for the respondents and
perused the counter affidavit and all other records submitted.
14. AS stated above, it is the admitted case of the respondents themselves
that while the petitioners were appointed they have produced all the
certificates and only after verification of the certificates they were
provisionally selected. The respondents were also aware that these petitioners
have passed their Tamil as a second knowledge in S.S.L.C separately. That apart
it cannot be state that the respondents were not aware that the petitioners have
studied the teacher training in Diploma in Malayalam Language. It is also
after knowing the entire facts and verifying the records after conducting the
interview the petitioners were selected.
15. In this regard, it is relevant to point out that even as per the
special rules framed for Tamil Nadu Elementary Education Subordinate Service in
G.O.Ms.No.1383 Education dated 23.08.1988, apart from the the other
qualifications which are undoubtedly present regarding the petitioners which is
not in dispute, the qualification regarding the Tamil language would say that
either such persons should have the Tamil as mother tongue or who has acquired
knowledge of Tamil in Higher Secondary School Course or who has passed second
class language test in Tamil. Infact, the petitioners have passed the second
class language in Tamil in S.S.L.C. level. Probably, it was only having
satisfied that the petitioners were qualified even in respect of Tamil language
they were appointed. Therefore, it cannot be said that the said Government order
prohibits the person like petitioners from being appointed as secondary grade
teachers on the basis of want of qualification in Tamil. Even the rule 12(A)
General Rules for the Tamil Nadu State Subordinate Services which in my opinion
may not be applicable, a perusal of all the said special rules for the Tamil
Nadu Elementary Education Subordinate Service, as stated above, also in the
light of the letter of the Tamil Nadu Public Services Commission dated
20.06.2002, would only state that it is in respect of the persons who have
already entered into service whose mother tongue is not Tamil and who have not
studied Tamil in S.S.L.C examination or in the college level where stated not be
considered as an alternative qualification when they have passed Tamil subject
alone in S.S.L.C. examination.
16. As stated above, the said rule even if the same is applicable it is to
those persons who have joined in the Government service and latter passed
S.S.L.C examination in Tamil subject alone. The present case of the petitioners
are entirely different in nature as stated earlier. Even 10 years before they
joining the service they have all passed the Tamil subject alone in the S.S.L.C
examination. It is only after perusal of the records they were appointed.
17. Therefore, even on this ground, it is not open to the respondents now
to turn round to say as if the petitioners are not qualified. Therefore, the
entire facts categorically proved that there was absolutely no problem regarding
the qualifications of the petitioners. The next aspect to be considered is as
to whether they can be abruptly removed on the allegations of complaints either
from the parents or the students. Eventhough, the respondents have chosen to
state in the counter affidavit as if there were some complaints from the parents
and students that the petitioners teaching partly in Tamil and partly in
Malayalam, the same is nowhere mentioned in the impugned order.
18. As clearly established judicial pronouncements, the respondents
cannot be permitted to substitute in their counter affidavit something which
never find place in the impugned order as such. It is seen that in all these
cases, while admitting the writ petitions, the impugned order has been stayed
and the respondents have infact, filed the vacate stay petition and the
petitioners continue in their respective posts as secondary grade teachers.
Even assuming that there has been complaint about the petitioners in not
teaching Tamil properly, the impugned order cannot be stated to be a proper
since admittedly the respondents passed the impugned orders without even giving
any opportunity to the petitioners.
19. It is relevant because it is the case of the petitioners that they are
living in Tamil Nadu for a very long period and they have absolute knowledge in
Tamil. If it is really true that there was genuine complaints from students and
parents and the respondents have genuine interest for protecting the students,
they should have given proper notice about the complaints and conducted proper
enquiry before passing order of cancelling the appointment of the petitioners.
The petitioners cannot be heard to say that the appointments are provisional,
temporary and therefore they can cancel the appointment at any time. Again
except in the counter affidavit such clause that they can be terminated at any
time is not finding place in any of the appointment orders, eventhough the
appointment orders indicate that the appointment is temporary. The full reading
of the appointment order would show that they are paid consolidated salary of
Rs.3,000/- for the first five years and they are all given the rights of leave
etc.,
20. The learned counsels appearing for the petitioners would rely upon
the judgment of the Supreme Court rendered in S.Sukhbans Singh Vs. State of
Punjab reported in AIR 1962 SCC 1711 to the effect that when any such order is
passed which would amount to punishment, the requirement of Article 311(2) of
the Constitution of India has to be complied with.
21. In fact the Supreme Court has gone to the extent of saying that the
rights conferred under the said article is applicable even to the temporary
staff. The learned counsel for the petitioners also relied upon another
judgment of the Division Bench of the Madras High Court in K.K.Jacob (Minor)
represented by father and guardian M.K.Korah Vs. The Madurai University
represented by the Registrar reported in 1978 1 MLJ 440. This Court has held
that the university is not justified in cancelling admission after five months
on the basis of a student having only 35% of marks in ICSE holding that in such
cases the said requirement ought to have been exempted. However, the facts and
circumstances of the case and the impugned order can only be treated as punitive
in character especially when in the counter affidavit it is alleged that there
has been complaint against the petitioners about their performance as teachers.
22. In such circumstances, the principles of natural justice required an
opportunity to them. In the absence of such opportunity and looked into any
angle, I am of the view that the impugned orders suffer from illegality and are
liable to be set aside and accordingly the impugned orders are set aside and the
writ petitions are allowed. However, there will be no order as to costs.
Consequently, connected W.P.M.Ps and W.V.M.Ps. are closed.
28.02.2006
Index: Yes
Internet:Yes
sms
To
1.The Director of Elementary Education,
D.P.I, Compound,
College road,
Nungambakkam,
Chennai – 600 006.
2.The District Elementary Educational Officer,
D.I.G. Office Compound,
Thanjavur.
3.The Assistant Elementary Educational Officer,
Mathukkoor Union,
Mathukkoor,
Thanjavur District.
4.The Assistant Elementary Educational Officer,
Thiruvonam,
Thanjavur District.
5.The Assistant Elementary Educational Officer,
Peravoorani,
Thanjavur District.
6.The Assistant Elementary Educational Officer,
Sethuparachatram,
Peravoorani
Thanjavur District.
P.JYOTHIMANI,J.
sms
Pre-delivery order in
W.P.Nos.507,508,514,517,518,921,816,346 of 2005
28.02.2006