IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.4.2011
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.11517 of 2005 and
Writ Petition No.36716 of 2006
W.P.No.11517 of 2005:
S. FRANCIS [ PETITIONER ]
Vs
1 THE JOINT DIRECTOR OF SCHOOL
EDUCATION, DPI COMPOUND,
COLLEGE ROAD
NUNGAMBAKKAM CHENNAI.
2 THE CHIEF EDUCATIONAL OFFICER
PANAGAL MAALIGAI, ANNA SALAI, SAIDAPET
CHENNAI-15.
3 THE PROVINCIAL DONBOSCO
INSTITUTE CITADEL NO.18 LANDANS ROAD
KILPAUK CHENNAI-10.
4 ST. GABRIEL'S HIGHER SECONDARY
SCHOOL REPRESENTED BY ITS CORRESPONDENT
NO.28, PRAKASAM SALAI CHENNAI-108.
5 FATHER DOMINIC SAVIO
PG ASSISTANT (HISTORY) ST. GABRIEL'S
HIGH SECONDARY SCHOOL
NO.28 PRAKASAM SALAI
CHENNAI-108.
6 FATHER SAGAYARAJ
PG ASSISTANT (HISTORY) ST. GABRIEL'S HIGH
SECONDARY SCHOOL NO.28 PRAKASAM SALAI
CHENNAI-108. [ RESPONDENTS ]
This writ petition has been filed praying for a writ of declaration declaring that the appointment of the 5th respondent in the vacant post of regular PG Assistant (History) in the 4th respondent school is ultra vires of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 and consequently direct the 3rd and 4th respondents to appoint the petitioner in the post of regular PG Assistant (History) in the 4th respondent school from the date on which the regular vacancy of PG Assistant (History) arose in the 4th respondent school and pay to the petitioner all other consequent benefits including arrears of salary from the said date.
W.P.No.36716 of 2006:
1 K.S. AROKIASAMY [ PETITIONER ]
Vs
1 THE JOINT DIRECTOR OF SCHOOL
EDUCATION (SECONDARY) CHENNAI-6.
2 THE CORRESPONDENT
DON BOSCO HIGHER SECONDARY SCHOOL
PEERAMBUR, CHENNAI-11.
3 R. SELVAPARI [ RESPONDENTS ]
This writ petition has been filed praying for a writ of Mandamus directing the respondents to cancel the appointment of the 3rd respondent as P.G. Asst. (Eco) and to appoint the petitioner as P.G. Assistant (Economics) in the 2nd respondent school.
For petitioners : Mr.C.Selvaraju in both W.Ps. Senior Advocate for Mr.S.Mani W.P.No.11517 of 2005: For respondents : Mr.S.Naganathan Government Advocate (Edn) for R1 and R2 Mr.M.Joseph Thatheus Jerome for R3 to R5 Mr.M.Ahmed Zubar for R6 W.P.No.36716 of 2005: For respondents : Mr.S.Naganathan Government Advocate (Edn) for R1 Mr.S.Mahimairaj for R2 Ms.S.Thenmozhi for R3 C O M M O N O R D E R
Since, the issues involved in both the writ petitions are similar in nature, these writ petitions are taken up together and a common order is being passed.
2. Heard the learned counsels appearing on behalf of the parties concerned.
3. In respect of the writ petition, in W.P.No.11517 of 2005, it has been stated that the petitioner has been working as a B.T. Assistant in the fourth respondent school. The third respondent is an Educational Agency, under whose control the fourth respondent school is functioning. Since, the petitioner was qualified to teach higher secondary classes, from the year, 1988, he had submitted an application for being appointed as a P.G. Assistant, on 26.3.1990, to the Headmaster of the fourth respondent school. However, the fifth respondent had been appointed, as P.G. Assistant (History), overlooking the claims of the petitioner and contrary to the procedures established by law. In such circumstances, the petitioner had preferred the present writ petition, under Article 226 of the Constitution of India.
4. The learned senior counsel appearing on behalf of the petitioner had submitted that the action of the fourth respondent in appointing the fifth respondent, as a P.G. Assistant (History), is arbitrary and illegal. He had further submitted that in the decision of the Supreme Court, in T.M.A. PAI FOUNDATION Vs. STATE OF KARNATAKA (2002) (5) CTC 201( SC) wherein, it has been held that the state Government can prescribe the qualifications, the procedures for recruitment and for promotion of the teachers, even in respect of the minority run educational institutions, if they are receiving aid from the State. Since, the fourth respondent school is receiving 100% aid from the State, it is bound by Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The petitioner, who is having all the requisite qualifications, ought to have been appointed, as the P.G. Assistant (History), in the vacancy that had arisen due to the retirement of one V.A. John, in the year, 1992.
5. The learned senior counsel appearing for the petitioner had also submitted that this Court had also held, in CHELLADURAI Vs. JOHN DIRECTOR OF SCHOOL EDUCATION AND OTHERS (2003 WLR 304), that a minority institution is bound by Rule 15 (4) (ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, and therefore, the fourth respondent school ought to have filled up the vacancy only by way of promotion, if there is a qualified teacher available in the said School. Appointment of an outside candidate can be made only when no qualified and suitable person is available in the said institution.
6. He had also pointed out that Rule 15(3) of the said Rules mandates that, in a regular vacancy, a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, any person could be appointed, for a specific period.
7. The learned senior counsel had also submitted that the fourth respondent school had obtained the permission of the concerned authority for appointing the fifth respondent in the vacant post of P.G. Assistant (History), by misleading the authorities concerned.
8. In the counter affidavits filed on behalf of the respondents 3, 4 and 6, the averments made on behalf of the petitioner had been denied.
9. It has been stated that the educational agency of the fourth respondent school has been declared to be a Roman Catholic Religious Minority Institution, protected and preserved by the provisions of Article 30 and the other relevant provisions of the Constitution of India.
10. It had also been stated that the petitioner had challenged the appointment of the fifth respondent, as a P.G. Assistant (History) in the fourth respondent School, without any basis. It had also been stated that the appointment of the fifth respondent, as a P.G. Assistant, had been approved and his salary had been paid from the month of August, 2004. The petitioner has filed the present writ petition, belatedly, and after having accepted his promotion, on 6.9.2003, as a B.T. Assistant.
11. It had also been stated that the claim made by the petitioner is contrary to a number of decisions of the Courts of law, including the recent decision of the Division Bench of this Court, made in THE FORUM OF MINORITY INSTITUTIONS AND ASSOCIATIONS Vs. THE STATE OF TAMIL NADU (2011 (1) CTC 162), wherein, it has been held that the right of minority institutions, under Article 30 of the Constitution of India is an absolute right, being a part of the basic structure of the Constitution and therefore, any regulation interfering with the right of the administration would not be applicable to the Minority Institutions, being violative of Article 30(1) of the Constitution of India.
12. In respect of the writ petition, in W.P.No.36176 of 2006, it has been stated that the petitioner had joined in service, as a Secondary Grade Assistant, in Don Bosco Higher Secondary School, Gandhi Nagar, Vellore, on 1.6.1977. While he was working in the said school, he has been transferred and posted in the second respondent school, on 6.2.1985. He was promoted as a B.T. Assistant, on 20.6.1988.
13. The petitioner has further stated that he had obtained the necessary educational qualifications to be promoted as P.G. Assistant (History). While so, a post of P.G. Assistant (Economics) had fallen vacant, due to the retirement of one Ambrose, on 1.6.2006. Even though the petitioner had been called to attend the interview, on 5.10.2005, based on his application made on 21.9.2005, he had not been considered for being appointed in the said post. Instead of selecting the petitioner, the third respondent had been selected and appointed as a P.G. Assistant (Economics), on 1.6.2006, even though the petitioner is more qualified. Further, as per the prevailing service Rules, the said post ought to have been filled up only by way of promotion, from amongst in-service candidates. In such circumstances, the petitioner had preferred the present writ petition, under Article 226 of the Constitution of India.
14. As regards the writ petition, in W.P.No.36716 of 2006, the learned senior counsel appearing on behalf of the petitioner had submitted that the third respondent had not been working in any one of the sanctioned posts in the second respondent school, which is an aided school. As per the service Rules applicable to such appointment, the petitioner ought to have been considered for being appointed in the post of P.G. Assistant (Economics), as he had already been working in the second respondent school, with all the necessary qualifications. Instead of promoting the petitioner, the second respondent school had appointed the third respondent, contrary to the relevant provisions of law, including Rule 15 (4)(ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974.
15. The learned counsel appearing on behalf of the second respondent had relied on the following decisions in support of his contentions:
1. ETHIRAJ Vs. STATE OF TAMIL NADU (1990) 1 M.L.J.284 2. LONDON MISSION PUTHALAM CHURCH H.S. SCHOOL Vs. STATE OF T.N. (1998 WRIT L.R.519) 3. N.AMMAD Vs. MANAGER, EMJAY HIGH SCHOOL (1998) 6 SCC 674 4. SECY., MALANKARA SYRIAN CATHOLIC COLLEGE Vs. T.JOSE (2007) 1 SCC 386 5. EKA RATCHAGAR SABAI HIGHER SEC. SCHOOL Vs. K.SUMATHI (2008) 1 MLJ 322
16. In view of the averments made in the affidavits filed in support of the writ petitions and in the counter affidavits filed on behalf of the respondents and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on considering the decisions cited supra, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for by them, in the present writ petitions.
17. The petitioners have not been in a position to show that they should have been promoted as P.G. Assistants, in the respondents schools, in the place of the fifth respondent in W.P.No.11517 of 2005 and the third respondent, in W.P.No.36716 of 2006, in accordance with the merits of the matters.
18. Further, the petitioners have not been pursuing the remedies available to them, promptly. The petitioners have not been in a position to substantiate their claims that the respondent schools ought to have followed the procedures established under Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974, and that the appointments of the fifth respondent, in W.P.No.11517 of 2005 and the third respondent, in W.P.No.36716 of 2006, are contrary to such provisions. Hence, these writ petitions stand dismissed. No costs. Connected M.P.No.1 of 2006 is closed.
27.4.2011
Index : Yes/No
Internet : Yes/No
lan
To:
1 THE JOINT DIRECTOR OF SCHOOL
EDUCATION, DPI COMPOUND,
COLLEGE ROAD
NUNGAMBAKKAM CHENNAI.
2 THE CHIEF EDUCATIONAL OFFICER
PANAGAL MAALIGAI, ANNA SALAI, SAIDAPET
CHENNAI-15.
3 THE PROVINCIAL DONOSCO
INSTITUTE CITADEL NO.18 LANDANS ROAD
KILPAUK CHENNAI-10.
4 THE JOINT DIRECTOR OF SCHOOL
EDUCATION (SECONDARY) CHENNAI-6.
M.JAICHANDREN J.,
lan
Writ Petition No.11517 of 2005 and
Writ Petition No.36716 of 2006
27.4.2011