IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.02.2007
CORAM
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.No.41914 of 2006
The Secretary,
Nadar Committee Higher Secondary School,
Ramanathapuram,
Tirunelveli District. ... Petitioner
Vs.
1. The Director of
School Education,
(Higher Secondary)
College Road,
Chennai-6.
2. The Chief Educational officer,
Tirunelveli-9.
3. A.Marimuthu ... Respondents
PRAYER: This writ petition is filed under Article 226 of
the Constitution of India to issue a writ of Certiorari,
calling fro the records relating to the proceedings of the
1st respondent dated 27.01.2006 made in Mu.Mu.No.43880/W7/04
quash the same and direct the 2nd respondent to accord
approval to the decision of the petitioner to permit the 3rd
respondent to continue in service as PG Assistant without
backwages and with continuity of service.
For Petitioner : Mr.R.N.Amarnath
For Respondents R1 & R2 : Mr.D.Srinivasan G.A,
For Respondent R3 : Mr.V.Gangadaran
O R D E R
The writ petition is directed against the orders of the
first respondent the Director of School Education dated
27.01.2006 by which the first respondent has rejected the
request of the petitioner management to permit the third
respondent teacher to continue as Post Graduate Assistant
with back-wages and continuity of services and also for a
direction against the second respondent to accord such
approval to the decision of the third respondent stated
above.
2. The facts leading to this case is that the
petitioner school is a private school recognized under the
Tamil Nadu Recognized Private Schools (Regulation) Act, and
rules made there under. The third respondent, who was
appointed as a Post Graduate Assistant under the petitioner
management, has committed some irregularities, based on
which a charge memo issued to him and after the enquiry
conducted by the school committee, it was decided to dismiss
the third respondent from service. The charge against the
third respondent was that he misbehaved with girl students
and other charges. After the petitioner took decision to
dismiss the third respondent from service, the petitioner
sought approval of the second respondent for such decision
as it is required under the Tamil Nadu Recognized Private
Schools (Regulation) Act. That was the petition filing on
01.11.1993. However, the second respondent has refused to
grant approval by the order, dated 29.11.1993. It was
against the said refusal, the petitioner has filed appeal
before the first respondent and the first respondent has
dismissed the appeal of the petitioner management on
05.04.1994. It was against the said order of dismissal by
the first respondent, the petitioner filed writ petition in
W.P.No.8362 of 1994, which was also dismissed by this Court
by an order dated 29.02.1998 and on a further appeal filed
by the petitioner in W.A.No.433 of 1998, by an order dated
04.03.2004 the Hon’ble Division Bench while allowing the
appeal filed by the petitioner management, has directed the
second respondent Chief Educational Officer to accord
approval for the decision of the petitioner management to
dismiss the petitioner from service.
3. In the mean time, on representation from the third
respondent to the petitioner tendering apology for the past
misconduct and requesting for reinstatement dated
05.12.2004, the school committee of the petitioner has
passed a resolution on 25.12.2005, resolving to allow the
third respondent to continue in the school without back-
wages. It is this proposal of the petitioner school
committee, which was rejected by the first respondent on
27.01.2006 under the impugned order.
4. The writ petition is filed on the ground that it is
for the second respondent to decide the issue and the first
has no jurisdiction. That by virtue of the impugned order
of the first respondent the petitioner management has lost
the right of appeal and also on the ground that the view of
the first respondent in the impugned order that when once
the school committee of the petitioner management decided to
dismiss the third respondent, it has no jurisdiction to
allow the third respondent to continue in service without
back-wages is not correct. It is also the contention of the
petitioner management that the order of the first respondent
amounted to interference with the jurisdiction and powers of
the petitioner in respect of appointment and inflicting of
punishments.
5. On the other hand, the second respondent has filed
a counter affidavit. While admitting the factual position
as stated in the affidavit filed by the petitioner in
support of the writ petition, the second respondent would
submit that after the judgement of the Division Bench of
this Court in directing the second respondent to grant
approval for the dismissal of the service of the third
respondent, the petitioner has sent a proposal dated
07.02.2005, stating that the school committee has decided to
withdraw its earlier request for permission to dismiss the
third respondent and allow him to continue by reinstating
into service. Since that proposal of the petitioner
management dated 07.02.2005 was against the direction of the
Hon’ble Division Bench in W.A.No.433 of 1998, the second
respondent sought clarification from the first respondent
and the first respondent in the impugned order has directed
that the said proposal to reinstate the third respondent, is
not acceptable, since it is against the order of the
Division Bench. While it is true that the Chief Education
Officer is the competent authority in respect of Post
Graduate Teachers to grant approval for the proposal for
dismissal as per the Tamil Nadu Recognized Private Schools
(Regulation) Act, the second respondent would state that as
per the provision of the said act, a teacher cannot be
placed under suspension for a period of more than 4 months
and in such circumstances, the third respondent has not made
any appeal against that order and he kept silent for more
than 11 years and there is no provision under the Tamil Nadu
Recognized Private Schools (Regulation) Act, to represent to
the school committee to take him back after 11 years and
school committee has no power to reappoint the petitioner
after 11 years. There is a violation of Section 22(3) of
the Tamil Nadu Recognized Private Schools (Regulation) Act.
Therefore, according to the second respondent the resolution
of the school committee dated 25.12.2004 to reinstate the
petitioner into service from 03.01.2005 and treat the break
in service from 30.07.2003 to 02.01.2005 as leave on loss of
pay is not in accordance with the Tamil Nadu Recognized
Private Schools (Regulation) Act.
6. It is also the case of the second respondent that
as against the order of the first respondent, the petitioner
has made a representation to the Government on 08.03.2006
and the same is under consideration of the Government, which
has called for certain remarks and records. It is also the
case of the second respondent that the second respondent is
the authority to accord permission to dismiss the Post
Graduate Teacher and not the authority to permit the
petitioner to reinstate. It is also the case of the second
respondent that the second respondent is under obligation by
the decision of the Hon’ble Division Bench to accord
approval of the dismissal of the third respondent and
therefore, the second respondent cannot grant any permission
for reinstating the third respondent which will be against
the order of the Division Bench.
7. Mr.R.N.Amarnath, learned counsel appearing for the
petitioner would submit that the petitioner management being
a private school as per the provisions of the Act, through
its school committee is empowered to make appointment or to
take disciplinary actions against any teachers. As far as
the appointments made by its school committee within the
sanctioned strength created by the Educational Authorities,
there is no approval required except in cases where the
qualifications of the persons appointed are under dispute,
in which case affected parties have a right of appeal to the
Educational Authorities and also a formal information for
the purpose of release of teaching grants. It is only in
respect of dismissal or removal or termination or otherwise
termination from service which requires a prior approval
from the competent authority. While it is true that earlier
the petitioner management has sent a proposal for dismissing
the third respondent seeking the approval from the second
respondent, the second respondent on merit has come to a
conclusion that charges against the third respondent were
not proved. It is also his contention that even after the
Hon’ble Division Bench has passed order allowing the appeal
filed by the management and directing the second respondent
to grant approval for dismissal of the third respondent by
the order dated 04.03.2004, the second respondent has not
chosen to pass any such order of approval till date. In
such circumstances, being the appointing authority it is
certainly open to the petitioner to vary its earlier
decision under a changed circumstance and that cannot be
prevented by the order of the first respondent. He would
also submit that at the most the first respondent can say
that during the period of decision taken by the management
to dismiss the third respondent, the grant will not be
released on the basis of no work no pay.
8. The third respondent has also filed a counter
affidavit. While admitting all the factual position, the
third respondent would submit that there was a compromise
under which the school committee of the petitioner and the
third respondent have agreed for certain terms. One such
term is that the third respondent has agreed not to file any
appeal before the Supreme Court of India against the
judgement of the Division Bench and the third respondent
should tender a letter of apology undertaking to act
properly in future and also the third respondent has to
forego all his allowances. The third respondent is having
two daughters and he is not having any property and in those
circumstances, by taking a lenient view, the first
respondent school committee has taken a decision and by an
order dated 27.12.2004, the third respondent was reinstated
and he also joined from 03.01.2005 and working without
salary for the past 24 months.
9. On the other hand, the learned Government Advocate,
who has appeared for the first and second respondents would
submit that inasmuch as the Hon’ble Division Bench judgement
is clear, the Educational Authority cannot decide anything
contrary to the same.
10. Mr.V.Gangadaran, learned counsel appearing for the
third respondent also would adopt the argument of the
learned counsel appearing for the petitioner.
11. I have heard the learned counsel for the
petitioner as well as the learned counsel for respondents
and perused the entire records.
12. While facts in this case are not in dispute, it is
relevant to point out that the petitioner management is the
Educational agency of an aided school, which is governed by
the provisions of the Tamil Nadu Recognized Private Schools
(Regulation) Act. It is also not in dispute that the
petitioner management has constituted a school committee as
per the requirement of Rule 12 of the Tamil Nadu Recognized
Private Schools (Regulation) Rules. The school committee
under the Tamil Nadu Recognized Private Schools (Regulation)
Act 1973, is entrusted with the functions under Section 18
of the said Act, which runs as follows:
“18. Functions of the school committee and
responsibility of educational agency under the
Act.-
(1) Subject to the provisions of this Act and the
rules made thereunder, the school committee shall
have the following functions, namely –
(a) to carry on the general administration
of the private school excluding the properties
and funds of the private school;
(b) to appoint teachers and other employees
of the private school, fix their pay and
allowances and define and the conditions of their
service; and
(c) to take disciplinary action against
teachers and other employees of the private
school.
(2) The educational agency shall be bound
by anything done by the school committee in the
discharge of the functions of the committee under
this Act.
(3) For the purposes of this Act, any
decision or action taken by the school committee
in respect of any matter over which the school
committee has jurisdiction shall be deemed to be
the decision or action taken by the educational
agency.”
13. Therefore, one of the functions of the school
committee is to appoint teachers and other employees of
private schools fix their pay and allowances and define
their duties and the conditions of their services, apart
from taking disciplinary action against teachers.
14. In respect of suspension of the teachers employed
in the aided private school Section 22(3) states that a
teacher or a person employed in a private school can be
placed under suspension for a period of 2 months, which can
be extended by another period of 2 months by the competent
authority and such suspension can be only in respect of
pendency of enquiry into grave misconduct within the meaning
of the code of conduct prescribed under Section 21(1) of the
Act. Section 22(3) runs as follows:
“21. Teachers and other persons employed in
private schools to be governed by Code of
Conduct.- (1) Every teacher and every other
persons employed in any private school shall be
governed by such Code of Conduct as may be
prescribed and if any teacher or other person so
employed violates any provision of such Code of
Conduct, he shall be liable to such disciplinary
action as may be prescribed.”
15. Therefore, a reading of the Section 22(3) clearly
contemplates that when once a teacher or a person employed
in a private school is placed under suspension, the
suspension is only for a period of 2 months and within 2
months if the enquiry is not completed such teacher or a
person employed shall be deemed to have been restored
without prejudice to the enquiry, however, with a proviso
that the period can be extended for another 2 months.
Therefore, it is clear that in any event, after the expiry
of 4 months from the date of suspension, such teacher or any
other person employed in a private school is deemed to have
been reinstated. Then, for the purpose of dismissal or
removal or termination or otherwise of any teacher or person
employed in a private school after the enquiry, Section
22(1) states that such termination cannot be done except
with the prior approval of the competent authority. The
said section runs as follows:
“22. Dismissal, removal or reduction in rank or
suspension of teachers or other persons employed
in private schools.- (1) Subject to any rule that
may be made in this behalf, no teacher or other
person employed in any private school shall be
dismissed, removed, or reduced in rank nor shall
his appointment be otherwise terminated except
with the prior approval of the competent
authority.”
16. It is also relevant to point out that Section
22(2) which runs as follows:
“(2) Where the proposal to dismiss, remove or
reduce in rank or otherwise terminate the
appointment of any teacher or other person
employed in any private school is communicated to
the competent authority, that authority shall, if
it is satisfied that there are adequate and
reasonable grounds for such proposal, approve
such dismissal, removal, reduction in rank or
termination of appointment.”
Contemplates that when such proposal is sent to the
competent authority, it is the duty of that authority if it
is satisfied that there are adequate reasons and grounds to
approve such dismissal. In the present case, when a
proposal for dismissal of the third respondent was sent by
the petitioner on 01.11.1993, by virtue of the powers under
Section 22(2) of the Act, the second respondent being
admittedly the competent authority has refused to grant
permission or prior approval for the dismissal of the third
respondent.
17. It is true that thereafter an appeal was filed by
the first respondent and the writ petition was filed before
this Court and ultimately the writ appeal filed by the
management came to be allowed with a direction to the second
respondent to grant approval for the proposal of the
petitioner management dated 01.11.1993 to dismiss the third
respondent. That was the order passed by the Hon’ble
Division Bench on 04.03.2004. Various issues were involved
in these proceedings including the validity or otherwise of
the constitution of the school committee etc., and
ultimately the Hon’ble Division Bench in the decision
rendered on 04.03.2004 while dealing extensively with the
powers of the school committee to delegate its powers to the
subcommittee for the purpose of conducting enquiry etc., and
arriving at a conclusion that such enquiry is permissible
and also having arrived at a conclusion that the school
committee of the petitioner management has validly
constituted, but considering that the charges framed against
the third respondent are very serious in nature and Section
22 only contemplates a prima facie satisfaction on the part
of the second respondent whether the approval to be granted
or not and not on factual merits, has set aside the order of
the second respondent dated 29.11.1993 refusing to grant
prior approval for dismissal of the third respondent and
directed the second respondent to accord approval in view of
the findings given by the Division Bench. The operative
portion of the judgement of the Hon’ble Division Bench is as
follows:
“9. The materials placed before us show that the
allegations against the third respondent are very
serious and grave in nature, as he has misbehaved
with the girl students who were studying in the
school. In view of the report submitted by the
Sub Committee, which was accepted by the School
Committee, the Committee sought for prior
approval from the second respondent, in terms of
Section 22 of the Act. The second respondent
went into the facts by considering the entire
materials, though he had no powers or
jurisdiction to act as an appellate authority,
and gave his findings thereon which are not
contemplated either under the Act or under the
Rules, since Section 22 contemplates only prima
facie satisfaction to find out whether approval
can be granted or not for the punishment proposed
by the School Committee on the third respondent.
Though the second respondent went into the
factual aspects and ultimately refused to grant
approval, the appellate authority, before whom
the appeal was preferred by the appellant against
the orders of the second respondent, did not
consider the factual aspects, but disposed of the
appeal by simply stating that the committee did
not have proper quorum and that the Sub Committee
cannot enquire into the allegations. Since we
have already held that the second respondent, as
Chief Educational Officer, has no powers to
consider the factual merits, we cannot, but, set
aside the order dated 29.11.1993, as it was
passed on merits. Accordingly, we set aside the
orders of the first and second respondents as
well as the order of the learned single judge.
The writ appeal is allowed with a direction to
the second respondent, the Chief Educational
Officer to accord approval in view of the above
findings.”
18. It is admitted that in spite of the said positive
order given by the Hon’ble Division Bench as early as on
04.03.2004 clearly holding that it is not for the respondent
to got into the substantive material but only prima facie
proof and therefore, it was the duty on the part of the
second respondent to grant approval for the proposal of the
petitioner to terminate the services of the third
respondent, admittedly, the second respondent has not acted
as per the direction of the Hon’ble Division Bench even as
on today and no approval has been given for the proposal of
the petitioner management dated 01.11.1993 for termination
of the third respondent.
19. In such circumstances, by virtue of the operation
of law, namely, by Section 22(1) of the Tamil Nadu
Recognized Private Schools (Regulation) Act, 1974, there is
every reason to believe that there is no order of
termination against the third respondent in existence. It
is relevant to point out that even from the date of
suspension after 4 months there is an automatic
reinstatement by virtue of Section 22(3)(b) of the Act.
Therefore, on the factual situation that even as on today,
the second respondent, who is admittedly an authority
competent to grant prior approval for the proposal of the
petitioner management to dismiss the services of the third
respondent has not granted such prior approval, the decision
of the petitioner management of the year 1993 can only be at
the most treated as nonest and such decision for termination
is not operative in the eye of law by virtue of the
provisions of the Tamil Nadu Recognized Private Schools
(Regulation) Act, 1974.
20. It is in this background of this case, the
question arises as to whether the petitioner management is
not entitled to reconsider its earlier decision to employe
the third respondent or otherwise if the petitioner
management being the appointing authority given power
through its school committee by virtue of Section 18(1)(b)
of the Act, to appoint any person decides to appoint the
third respondent, can any one of the respondent or this
Court for that matter decide that the petitioner management
has no such powers?
21. A reading of the entire Act shows that the powers
of appointment and taking disciplinary action vest with the
school committee. No where the provision of the Act
contemplates that for appointing a teacher by the school
committee an approval is required except stating that the
qualification are to be mandatorily followed and the
appointments are to be made subject to the maximum strength
as per the Government Order passed from time to time based
on the student teacher ratio, which is a matter of policy.
That power is available to the Government and the
Educational Authorities on the ground that it is the
government, which is releasing 100% teaching grants for the
teachers.
22. On the other hand, the Act provides for prior
approval only for termination of teachers and others
employed, which is intended only to protect the teachers and
other employees in the aided private schools from the
conduct of the managements, in affecting the service
conditions of such teachers and persons employed in the
private management. Therefore, the power of management to
make appointment can be restricted only on the ground that
the person appointed is not having necessary qualification,
which is required as per the Act or in cases where the
appointment sought to be made is against the sanctioned
strength of the school as approved by the Government from
time to time, based on the student teacher ratio and also
the strength of students, which has to be assessed
periodically by virtue of the Government Order, which are
passed from time to time.
23. On the facts of this case no one of the said
conditions are involved, since it is not even the case of
the respondents 1 and 2 that the third respondent is not
qualified or the appointment is made by the petitioner’s
school beyond the sanctioned strength. The reason given in
the impugned order by the first respondent is that when the
Hon’ble Division Bench of this Court has directed the second
respondent to grant approval for the dismissal of the third
respondent, contrary to that no approval can be granted for
the purpose of permitting the third respondent to continue.
As I have stated earlier, inasmuch as the second respondent
has failed to act as per the directions of the Hon’ble
Division Bench, that cannot be a ground for the purpose of
obstructing the right of the petitioner management from
reconsidering its earlier decision.
24. On the other hand, if after the second respondent
granted prior approval for dismissal of the third respondent
and in spite of that the management wanted to reinstate the
third respondent into service, the enabling provisions are
available under the Tamil Nadu Recognized Private Schools
(Regulation) Act, 1974 for the Government and educational
authorities for withdrawal of recognition, apart from many
other remedial measures, since such conduct may amount to
disobedience to the directions of the authorities for which
there are adequate provisions under the Tamil Nadu
Recognized Private Schools (Regulation) Act, 1974 by
treating as mismanagement etc. But in my considered view
that cannot be a ground to prevent any action by the
petitioner management to reemploy the third respondent.
This I am emboldened to state purely due to the reason of
the failure on the part of the second respondent in not
acting as per the directions of the Hon’ble Division Bench.
If only the second respondent has quickly acted as per the
direction of the Hon’ble Division Bench, since certainly the
charges framed against the third respondent are very serious
in nature, this nebulous situation would not have arisen and
there would not have been an occasion for a compromise
between the petitioner and the third respondent, since no
such compromise and agreement can act against the statutory
compulsions.
25. It is the case of the petitioner management that
considering the plight of the third respondent, who is
stated to have two female children and also his age, namely,
52 years and he is stated to have given an undertaking to
behave properly, apart from giving undertaking that he will
not claim salary for the period from the date of dismissal
by the petitioner management till the date of decision to
appoint the third respondent the decision of reinstate him
was stated to have been taken. It is also seen that the
petitioner by the appointment order dated 27.12.2004 given
to the third respondent through its school committee meeting
held on 25.12.2004 has decided to appoint the third
respondent only on compassionate ground from 03.01.2005
subject to the approval of appointment of the third
respondent by the Educational Authorities. When such
proposal was sent by the petitioner management on
07.02.2005, the first respondent has chosen to pass the
impugned order, mainly on the ground that granting of such
approval will be against the decision of the Division Bench.
As I have stated earlier the Hon’ble Division Bench having
found that the earlier decision of the school management,
namely, the petitioner in deciding to terminate the services
of the third respondent is valid, has directed the second
respondent, who is the competent authority to grant approval
and such approval has not been granted so far and in such
circumstances as per the provisions of the Tamil Nadu
Recognized Private Schools (Regulation) Act, 1974, there is
deemed to be no termination order.
26. In view of the same, the reason given by the first
respondent and the impugned order is not sustainable and the
impugned order is quashed. The writ petition stands allowed
with a direction to the second respondent to pass orders on
the proposal of the petitioner management dated 07.02.2005
treating it as a fresh appointment of the third respondent
in the petitioner school and decide the issue in accordance
with law making it clear that it is for the second
respondent to decide about the claim of the petitioner
regarding continuity of service to be granted to third
respondent. Considering the circumstance that the third
respondent has accepted to forego the salary for the period
from the date of proposal for termination made by the
petitioner earlier till the date of reappointment and such
order shall be passed by the first and second respondents on
the facts and circumstances of the case within a period of 8
weeks from the date of receipt of a copy of this order. No
Costs. Consequently, the connected M.Ps. are closed.
nbj
To
1. The Director of
School Education,
(Higher Secondary)
College Road,
Chennai-6.
2. The Chief Educational officer,
Tirunelveli-9.