BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 29/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.2987 of 2004 and W.P.M.P.No.521 of 2005 and W.V.M.P.No.156 of 2004 T.Selvarani .... Petitioner Vs. 1.The Joint Director of School Education, Secondary Education, Chennai - 600 006. 2.The District Educational Officer, Virudhunagar, Virudhunagar District. 3.The Correspondent, A.V.M.Marimuthu Nadar Higher Secondary School, Vilampatti Nadar Uravinmuraikku Parthiappattathu, Vilampatti (Post), (Via) Sivakasi. 4.Mrs.Muruga Pushpam, .... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the third respondent in connection with the order of Reversion passed by him in his proceedings No.Nil dated 18.10.2004 and quash the same and consequently direct the third respondent to post the petitioner in the original post i.e. Tamil Pandit. !For Petitioner ... Mr.G.Thalaimutharasu ^For Respondents (1 -2) ... Mr.K.V.Vijayakumar, Special Government Pleader. For 3rd Respondent ... Mr.N.Ramakrishnan For 4th Respondent ... Mr.K.Vellaisamy :ORDER
Heard the learned counsel appearing for the petitioner and the learned
Special Government Pleader appearing for the respondents 1 & 2 and
Mr.N.Ramakrishan, learned counsel appearing for the 3rd respondent and
Mr.K.Vellaisamy, learned counsel appearing for the 4th respondent.
2. This writ petition is filed challenging the order of the first
respondent dated 18.10.2004 and to direct the third respondent to post the
petitioner as Tamil Pandit.
3. The case of the petitioner is that she was originally appointed as a
Secondary Grade teacher in the year 1984 in the third respondent school. when a
vacancy of Tamil Pandit become vacant the petitioner being the senior most
secondary grade teacher was eligible for the said promotion. However, when the
fourth respondent appears to have objected and the claimed the post, on
clarification from the District Educational Officer, the second respondent by
an order dated 05.07.2002, the petitioner was promoted as Tamil Pandit on
03.08.2002. From the date of the said appointment till date she has been working
as Tamil Pandit in the third respondent school. The said appointment of the
petitioner was also approved by the second respondent on 10.02.2003. Against the
said order of appointment of the petitioner dated 03.08.2002, the fourth
respondent preferred an appeal before the first respondent on 19.03.2003. The
first respondent has allowed the said appeal filed by the fourth respondent on
01.09.2004. It was on the basis of the said order of the first respondent dated
01.09.2004 the petitioner was reverted on 18.10.2004 as a Secondary Grade
Teacher. That reversion order dated 18.10.1994 passed by the third respondent
management is impugned in this writ petition. By virtue of the order of stay
granted by this Court, the petitioner is continuing as a Tamil Pandit. The
third respondent is the aided school governed by the provisions of the Tamil
Nadu Recognised Private Schools (Regulations) Act and rules made thereunder.
4. The petitioner states that the appointment of petitioner as a Tamil
Pandit in the third respondent school on 03.08.2002 itself was based on the
order of approval of qualification from the second respondent dated 05.07.2002
and the promotion was in accordance with the provisions of the Tamil Nadu
Recognised Private Schools (Regulations)Rules namely, the Rule 15(6) with
Annexure V. The qualification for the post of Tamil Pandit was prescribed as
M.A.(Tamil) or B.A (Tamil) or MOL(Tamil) or BOL(Tamil); and B.Ed., or B.T., or
Secondary Grade Training etc.,
5. According to the petitioner the petitioner has completed B.Ed Degree in
the year 1993 and also passed M.A(Tamil) in the year 2001 and therefore she was
fully qualified as per the said rules. Hence, the promotion given to her as
Tamil Pandit on 03.08.2002 is in accordance with rules. Therefore, the
reversion of the petitioner is not valid in law. The order passed by the first
respondent dated 01.09.2004 without giving notice to the petitioner and passed
behind the back of the petitioner is not binding on the petitioner and the same
is opposed the principles of natural justice. As on the date of appointment of
the petitioner as Tamil Pandit the required qualification was M.A (Tamil) or
B.A.(Tamil) and B.Ed and inasmuch as the petitioner was having Post Graduate
Degree in Tamil and B.Ed she was well qualified as per the requirement.
6. The third respondent has filed the counter affidavit stating that the
impugned order itself was passed by the third respondent only based on the order
of the first respondent dated 01.09.2004 which was passed based on the appeal
filed by the fourth respondent dated 19.03.2003 challenging the order of
appointment of the petitioner dated 03.08.2002 and subsequent approval o her
appointment by the second respondent dated 10.02.2003.
7. Therefore, according to the third respondent the third respondent has
to only execute orders of the first respondent. According to the third
respondent the petitioner and the fourth respondent are almost equally qualified
but for the difference that the petitioner possess B.A. (History) and
M.A.(Tamil) Degree, while the fourth respondent possess B.A in Tamil Degree.
According to the third respondent the Appellate Authority the first respondent
has followed the Government orders G.O.Ms.No.930 dated 09.06.1975,
G.O.Ms.No.1732 dated 30.08.1980, and G.O.Ms.No.662 dated 13.04.1982 and has
found that the fourth respondent is more suitable to the post. The first
respondent in the order dated 1.09.2004 has also chosen to rely on the said
Government orders to say that the teachers who are appointed in a particular
subject should have taken that subject as a first subject for the post of their
appointment.
8. Therefore, apparently, the first respondent has presumed that the
petitioner had passed M.A.(Tamil) only while the fourth respondent in
B.A.(Tamil) and therefore she is better qualified. The fourth respondent in the
counter affidavit would state that as far as she is concerned she has challenged
the order of appointment of the petitioner as Tamil Pandit dated 03.08.2002 and
the first respondent being an Appellate Authority by the order dated 01.09.2004
has set aside the promotion given to the petitioner and therefore in that place
she was promoted. The impugned order passed by the third respondent in this
case, is a consequential one to that of the order of the first respondent dated
01.09.2004.
10. According to the fourth respondent, the order of the first respondent
dated 01.09.2004 is not affecting the petitioner. Further according to the
fourth respondent since the appeal decided by the first respondent was only a
departmental appeal it does not require any opportunity and the orders were
passed based on the records. According to the fourth respondent the petitioner
has studied M.A. in Tamil by postal tution and her basic degree is in
B.A.History. As per the purport of the said Government orders, since the
petitioner has not passed basic degree in Tamil she shall not be entitled for
the post of Tamil Pandit.
11. I have heard the learned counsel for the petitioner as also the
learned counsel appearing for the respondent (3 & 4) as also the learned Special
Government Pleader appearing for the respondents(1 & 2).
12. At the outset, it has to be pointed that the impugned order of the
third respondent dated 18.10.2004 under which the petitioner was reverted who
was promoted by the third respondent as Tamil Pandit on 03.08.2004 as was
approved by the second respondent dated 01.10.2003, has to the lower post of
secondary grade teacher based on the order of the first respondent dated
01.09.2004. The said order of the first respondent 01.09.2004 is an order passed
by the first respondent in an appeal filed by the fourth respondent against the
order of appointment of the petitioner dated 03.08.2002 and subsequent
approval dated 10.02.2003. The fact remains that the first respondent while
passing the order on 01.09.2004 which is stated to be a petition preferred by
the fourth respondent on 19.03.2003 challenging the order of appointment of the
petitioner as Tamil Pandit on 03.08.2002 has not given any opportunity to the
petitioner before passing such order.
13. It is admitted that the appointment of the petitioner as Tamil Pandit
on 03.08.2002 by the third respondent has been approved by the second
respondent-the District Educational Officer who is the authority to decide about
the qualifications as per the provisions of the Tamil Nadu Recognised Private
Schools (Regulations) Rules on 10.02.2003.
14. As correctly pointed out by the learned counsel for the petitioner,
the first respondent while taking up the petition filed by the fourth respondent
dated 19.03.2003 has allowed the said petition on 01.09.2004 holding that the
petitioner was no qualification based on certain Government Orders without even
giving notice to the petitioner or any opportunity to the petitioner to
substantiate her case especially when admittedly the petitioner is working as
Tamil Pandit in the third respondent School from 03.08.2002, not only based on
the order of the third respondent but also the said order having been approved
by the competent authority namely, the second respondent even on 10.02.2003.
15. It is on this score itself the order of the first respondent dated
01.09.2004 has to be set aside as opposed to the basic principles of law and
natural justice and consequently, the impugned order of the third respondent has
no legal basis. There is one another circumstance as pointed out by the learned
counsel for the petitioner that apart from the fact that on the representation
of the fourth respondent dated 19.03.2003, the first respondent has passed the
order on 01.09.2004 without giving opportunity to the petitioner by setting
aside the order of the appointment of the petitioner. Even assuming that the
said representation of the fourth respondent dated 19.03.2003 to the first
respondent is an appeal, as per the provisions of the Tamil Nadu Recognised
Private Schools(Regulations) Act namely, 43(1) any appeal ought to have been
filed within one month from the date of order. In the present case, if the
representation of the fourth respondent dated 19.03.2003 to the first respondent
is taken as an appeal, from the date of order of appointment of the petitioner
by the third respondent dated 03.08.2002 or from the order of approval granted
by the second respondent dated 10.02.2003 in both the cases the representation
stated to have been filed by the fourth respondent is patently beyond the time
limit. The fourth respondent who is also working as a teacher in the same third
respondent school cannot plead ignorance of the order.
16. Mr.K.Vellaisamy, learned counsel for the fourth respondent could not
defend that the fourth respondent has filed the appeal or representation within
the time stipulated under the Act except to state that it is administrative in
character.
17. On the other hand, Mr.K.Vellaisamy, learned counsel appearing for the
fourth respondent would submit that admittedly the petitioner was not given any
opportunity to substantiate her case before the first respondent while, the
first respondent was dealing with the appeal by the fourth respondent on
19.03.2003, the petitioner can avail the opportunity before this Court under
Article 226 of the Constitution of India.
18. According to the learned counsel, the concept of natural justice is an
empty formality i the present case and even assuming that the petitioner has got
any right of being heard the same can be exercised by the petitioner in this
writ petition. I am unable to agree with the said contention of the learned
counsel for the fourth respondent. This Court while deciding any issue under
Article 226 of the Constitution of India cannot sit as an Officer deciding the
issue. Moreover, the principle denial of natural justice which is complained
by the petitioner is against the conduct of the first respondent who while
deciding an issue against the petitioner ought to have realised that the basic
principles of law is violated when, at the instance of the fourth respondent he
set aside the order of the appointment of the petitioner who has been serving as
a Tamil Pandit admittedly from 03.08.2002.
19. A perusal of the order of the first respondent dated 01.09.2004 would
show that it has been passed under a mistaken impression apart from the fact
that it is violating all the principles of law and natural justice. The said
order raises about the three Government Orders namely, G.O.Ms.No.930 dated
09.06.1975, G.O.Ms.No.1732 dated 30.08.1980 and G.O.Ms.No.662 dated 13.04.1982.
20. Mr.K.Vellaisamy, learned counsel appearing for the fourth respondent
would also submit that those three Government Orders, virtually make the
petitioner ineligible to be appointed as Tamil Pandit. In this regard, it is
relevant to point out the qualification required for Tamil Pandit as per the
Tamil Nadu Recognised Private Schools (Regulations) Rules Annexure V(5). It
prescribed the following qualification required for the post of Tamil Pandit
namely, M.A.,(Tamil) or B.A.(Tamil) or M.O.L.(Tamil) or B.O.L (Tamil) and B.Ed
or B.T or L.T or Secondary Grade Training etc., This was amended by
G.O.Ms.No.125 dated 12.11.2003 by which a new Annexure V-A was introduced. As
per the said amendment which came into effect from 12.11.2003, the required
qualification for a Tamil Pandit is B.A(Tamil), B.Lit, BOL, and B.Ed etc.,
21. In the present case, admittedly the appointment of the petitioner as
Tamil Pandit was on 03.08.2002 and the same was approved by the authority under
the Act namely, the second respondent on 10.02.2003. Therefore, it was before
the date of the said G.O.Ms.No.125 namely,12.11.2003. Therefore, at the time
when the petitioner was appointed, the qualification required for the post on
Tamil Pandit was M.A.(Tamil) or B.A(Tamil) or MOL(Tamil) or BOL(Tamil) and
B.Ed. At that time, the petitioner having M.A. in Tamil eventhough she was
having B.A. Degree in History was eligible to be fully qualified along with the
B.Ed. Therefore, it cannot be said that by the subsequent amendment which has
come into effect only from 12.11.2003 for post of Tamil Pandit B.A(Tamil) is
required which the petitioner is lacking and therefore, she should be
disqualified.
22. The contention of the fourth respondent in this regard that the said
amendment dated 12.11.2003 should be construed as if it was in existence even
before that when the petitioner was appointed is absolutely unsustainable. Now
if we refer to the order of the first respondent dated 01.09.2004 the same is
not valid in law as I stated earlier due to the reason that it was passed
without giving notice to the petitioner which is also a requirement under
Section 43(3) of the Tamil Nadu Recognised Private Schools(Regulations) Act.
Even on the basis of the Government orders referred by the first respondent the
said order is not sustainable. The Government order in G.O.Ms.No.930 dated
09.06.1975 in amended Rule 15 of Tamil Nadu Educational Rules as follows:
“Trained graduate teachers who have studied Tamil in their B.A./B.Sc.
degree course above will be appointed as B.T Assistants to teach through Tamil
in non-Government Secondary Schools. Trained Graduate Teachers who have studied
Telegu, Malayalam, Urdu, Kannada, Hindi, Gujarathi will be appointed as B.T.
Assistants to teach through the respective mediums in schools. The requirements
will apply to heads of secondary schools also.”
23. A reference of the said Government order shows apart from that it
amends Tamil Nadu Educational Rules it relates to B.T.Assistants and not Tamil
Pandits. Therefore, a reference of the said Government order by the first
respondent is a misnomer. Again the reference to another G.O.Ms.No.1732 dated
30.08.1980 would show that it was an amendment to Rule 15 Tamil Nadu Educational
Rules it is also relating to B.T.Assistants. Again another Government order
referred by the first respondent in the order 01.09.2004 namely 662 dated
13.04.1982 relates to the appointment of the graduate teachers with B.A.
Economics qualification.
24. A reading of the said Government Orders would also show that the said
Government Orders have no application on the facts of the case. Therefore, the
first respondent apart from committing a gross illegality in not even hearing
the petitioner also acted against Section 43(3) of Tamil Nadu Recognised
Private Schools(Regulations) Act and on the misunderstanding of Government
orders referred by him.
25. He has relied upon the three Government orders which have absolutely
no relevance to the facts and circumstances of the case at all. It is
unfortunate that a higher officer like the first respondent has misconstrued
everything for the reasons best known to him. It is equally understandable as
to how that the order is sought to be justified by the learned counsel for the
fourth respondent especially when that order misreads the Government Order and
passed against all norms of natural justice.
26.Therefore, even accepting the argument of the learned counsel for the
fourth respondent that the petitioner is given an opportunity now before this
Court to assail the order of the first respondent dated 01.09.2004, in my
considered view the fourth respondent has to fail and the order of the first
respondent dated 01.09.2004 has to necessarily go as the same is opposed to all
norms and tenets of law.
27. It goes without saying that the consequential impugned order of the
third respondent has no legal basis whatsoever. It can never be said that this
Court cannot decide about the validity of the order of the first respondent
dated 01.09.2004, for the impugned order of the third respondent is only
consequential. As the third respondent has correctly pointed out in the counter
affidavit, being the aided School it has no other go than following the order of
the first respondent. Therefore, it can never be said the third respondent has
mala fide attitude against the petitioner, since they only implemented the
unlawful order of the first respondent as stated above.
28. In view of the same, the impugned order of the third respondent dated
18.10.2004 which is consequential to the order of the first respondent dated
01.09.2004 as also the order of the 1st respondent dated 01.09.2004 are quashed.
The writ petition stands allowed. There is no order as to costs. Consequently,
connected W.P.M.P. and W.V.M.P. are closed.
sms
To
1.The Joint Director of School Education,
Secondary Education,
Chennai – 600 006.
2.The District Educational Officer,
Virudhunagar,
Virudhunagar District.
3.The Correspondent,
A.V.M.Marimuthu Nadar Higher
Secondary School,
Vilampatti Nadar Uravinmuraikku
Parthiappattathu,
Vilampatti (Post),
(Via) Sivakasi.
