{"id":124751,"date":"2010-06-11T00:00:00","date_gmt":"2010-06-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharathidasan-aided-primary-vs-the-district-elementary-on-11-june-2010"},"modified":"2017-11-25T09:14:37","modified_gmt":"2017-11-25T03:44:37","slug":"bharathidasan-aided-primary-vs-the-district-elementary-on-11-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharathidasan-aided-primary-vs-the-district-elementary-on-11-june-2010","title":{"rendered":"Bharathidasan Aided Primary … vs The District Elementary … on 11 June, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Bharathidasan Aided Primary … vs The District Elementary … on 11 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 11\/06\/2010\n\nCORAM\nTHE HONOURABLE MR. JUSTICE R.S.RAMANATHAN\n\nW.P.(MD)No.9279 of 2008\n&\nW.P.(MD)No.9280  of 2008\nand\nM.P.(MD)Nos.1 & 2 of 2008\n\n\nBharathidasan Aided Primary School\nRep. by its Secretary\nPillayampettai,\nUma Maheswaranpuram Post,\nThiruvidaimaruthur Taluk,\nThanjavur.                                          ... Petitioner\n\nVs\n\n1.The District Elementary Educational\n    Officer, Thanjavur.\n\n2.The Assistant Elementary Educational Officer,\n   Kumbakonam,                                     ... Respondents<\/pre>\n
Prayer in W.P.(MD)No.9279 of 2008<\/p>\n
Writ Petition has been filed under Article 226 of the Constitution of India
\npraying for the issuance of a writ of Certiorarified  Mandamus, calling for the
\nrecords relating to the impugned order of the first respondent in
\nref.Na.Ka.No.5574\/08\/B28, dated 10.10.2008 and quash the same and consequently
\nto forebear the respondent in any way interfering with the administration of the
\npetitioner School except without following due process of law.
\nIn W.P.(MD)No.9280 of 2008:\n<\/p>\n
#T.Amutha                                     ... Petitioner\n\nVs\n\n1.The District Elementary Educational\n    Officer, Thanjavur.\n\n2.The Assistant Elementary Educational Officer,\n   Kumbakonam,\n\n3.Bharathidasan Aided Primary School\n   No.375, Agaraharam,\n   Pillayampettai,\n   Uma Maheswaran Puram Post,\n   Thanjavur.\n   Rep. by its Correspondent                  ... Respondents\n\n\t\nPrayer in W.P.(MD)No.9280 of 2008\n\n<\/pre>\n
Writ Petition has been filed under Article 226 of the Constitution of India
\npraying for the issuance of a writ of Certiorarified  Mandamus, calling for the
\nrecords relating to the impugned order of the 2nd respondent in
\nref.Na.Ka.No.999\/08\/A28, dated 13.10.2008 and quash the same and consequently,
\ndirecting the respondents 1 and 2 in any way interfering with the appointment of
\nthe petitioner as in-charge Head Master of the 3rd respondent School except
\nwithout following due process of law.<\/p>\n
\n\n!For Petitioner  in both W.Ps   ...   Mr.Veera Kathiravan\n\n^For Respondents                ...   Mr.S.C.Herold Singh\n                                      Government Advocate\n\nFor R3 in W.P.9280\/09           ...    Mr.F.Deepak\n\n\n:COMMON ORDER\n\n\n\tHeard both sides.\n\t\n<\/pre>\n
\t2.The petitioner School is an aided primary School and it has got a School
\nCommittee, constituted in accordance with the provisions of Tamil Nadu
\nRecognised Private School (Regulation) Rules 1974 herein after referred to a
\nRules. One Mr.K.Kaliamoorthy was the Secretary of the School Committee and he
\nresigned his post on 02.04.2002 and in his place, T.Amutha was appointed on
\n03.04.2002.  The appointment of T.Amutha was also approved by the District
\nElementary Educational Officer, by his proceedings, dated 30.05.2002.
\nThereafter, the said T.Amutha was also appointed as teacher in that School and
\nshe was also acting as Head Master in-charge of the School and functioning as
\nSecretary of the School Committee. As a teacher working in that School and not
\ncoming within the category of senior teachers and the said T.Amutha cannot be a
\nmember of the School committee as per Rule 12 and therefore, she cannot be
\npermitted to act as Secretary of the School Committee. Hence, the first
\nrespondent, by his proceedings, dated 10.10.2008 withdrew the recognition or
\napproval granted by them, approving T.Amutha as Secretary of the School by their
\nproceedings dated 30.05.2002 and also ordered direct payment of grant till a new
\nSecretary is appointed. This order of the first respondent, dated 10.10.2008 is
\nchallenged in W,P.(MD)No.9279 of 2008.\n<\/p>\n
\t3.Further, the Assistant Elementary Educational Officer issued
\nproceedings, dated 13.10.2008 stating that consequent to the order of the
\nDistrict Elementary Educational Officer, dated 10.10.2008 direct payment has
\nbeen ordered in respect of School and as the post of Head Master is lying
\nvacant, the senior most teacher must be entrusted with all the responsibility of
\nthe Head Master and directed the School Committee to appoint the senior most
\nteacher to act as Head Master in charge. This order of the 2nd respondent, the
\nAssistant Elementary Educational Officer, dated 13.10.2008 is challenged in
\nW.P.(MD)No.9280 of 2008.\n<\/p>\n
\t4.The first respondent filed a counter, in both the writ petitions,
\nstating that an employee of the School cannot be nominated as representative of
\nthe Educational Agency  as per Rule 12 and P.Amutha is working as Secondary
\nGrade Assistant and is also working as Head Master in-charge and though the
\nSchool Committee can nominate the Head Master as Secretary, as the said T.Amutha
\nis not holding  the post of Head Master, she could not claim the post of
\nSecretary nor she can be appointed as Secretary and the management also failed
\nto bring to the notice of the Department about the appointment of T.Amutha as
\nSecondary Grade teacher and as per Rule 12 of the said Rule, the said T.Amutha
\ncannot be a member of the School committee and in-turn, she can not be appointed
\nas Secretary of the School Committee and therefore, the order of the 2nd
\nrespondent, dated 10.10.2008 is in consonance with Rule 12 and 13 of the Tamil
\nNadu Private School Regulation Act.\n<\/p>\n
\t5.It is further stated that before passing the impugned order, the School
\nCommittee was asked to submit their remarks and the management has given a reply
\nthat the petitioner viz., T.Amutha, is acting as Head Master and therefore, as
\nper the Rule 13 of the Act, an Head Master can be appointed as Secretary of the
\nSchool. But as per Rule 12 and 13 only a Head Master, whose appointment ratified
\nby the Department can be appointed as Secretary and T.Amutha was appointed as
\nin-charge Head Master and the same was not ratified and in-charge Head Master
\ncannot become the Secretary of the School Committee. It is further stated that
\nas per Rule 15(4) only senior most teacher can be appointed as Head Master of
\nthe School and T.Amutha, the petitioner in W.P.(MD)No.9280 of 2008 is not the
\nsenior most teacher and hence, she cannot be appointed as Head Master in-charge
\nof the School and as the post of Head Master was not duly filled up and T.Amutha
\nis not competent to act as Head Master in-charge, the second respondent has
\npassed the impugned order, dated 13.10.2008 directing the senior most teacher in
\nthat School to act as Head Master to receive the grant of aid provided by the
\nGovernment. It is further stated that T.Amutha is not competent person to act as
\nSecretary and she is not the senior most teacher and therefore, the order passed
\nby the 2nd respondent is valid in law.\n<\/p>\n
\t6.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
\nin both the writ petitions, submitted that before issuing the proceedings by the
\nfirst respondent, dated 10.10.2008, no opportunity was given to the petitioner
\nSchool about the withdrawal of approval granted to T.Amutha as Secretary of the
\nSchool and also in respect of making direct payment of grant in aid and
\ntherefore, the order is bad in law and is liable to be set aside.  He further
\nsubmitted that the first respondent, by his proceedings, dated 30.05.2002,
\napproved the appointment of T.Amutha as Secretary of the School Committee and
\nhaving approved her appointment as Secretary, the first respondent ought to have
\nissued the show cause notice calling upon the management why her appointment as
\nSecretary can not be withdrawn on the ground that she is a teacher employed in
\nthe School and without issuing the show cause notice, the approval cannot be
\nwithdrawn by the first respondent.\n<\/p>\n
\t7.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
\nin both the writ petitions, further submitted that there is no prohibition under
\nRule 13 of the Tamil Nadu Recognised Private School Act 1997 for an in-charge
\nHead Master, School teacher to be appointed as Secretary of the School Committee
\nand as a matter of fact, as per Rule 13 of the Act, Head Master can be appointed
\nas Secretary of the School Committee and T.Amutha has been appointed as Head
\nMaster in-charge and hence, she can be validly appointed as Secretary of the
\nSchool Committee and therefore, the order of withdrawal is bad in law. He also
\nrelied upon the judgment rendered in W.P(MD)No.3011 of 2004, dated 03.08.2007
\nwherein this Court has held that as per Rule 13(1) of the Tamil Nadu Recognised
\nPrivate Schools (Regulation) Rules, the educational agency shall nominate 6
\nmembers to the School Committee and the fact that such  person may be also
\nworking as a teacher in the same School is not relevant in deciding the issue
\nand relying upon the judgment, he further submitted that there is no prohibition
\nfor a teacher to be appointed as Secretary of the School Committee and
\ntherefore, the impugned notice is illegal and is liable to be set aside.\n<\/p>\n
\t8.On the other hand, Mr.S.C.Herold Singh, the learned Government Advocate
\nappearing for the respondents 1 and 2 submitted that a perusal of the Rule 12
\nand 13 of the Tamil Nadu Recognised Private School (Regulation) Act, would make
\nit clear that the petitioner in W.P.(MD)No.9280 of 2008 could not be appointed
\nas member of the School Committee and therefore, she cannot be appointed as
\nSecretary of the School Committee, even though she happens to be the Head Master
\nof the School.  He further submitted that when a Head Master retires or resigns,
\nthe senior most teacher is to be appointed as Head Master and admittedly,
\nT.Amutha is not the senior most teacher and therefore, she cannot be appointed
\nas Head Master of the School and therefore, the 2nd respondent has passed the
\nimpugned order, dated 13.10.2008 directing the senior most teacher to be
\nappointed as Secretary  and Head Master in-charge till the vacant is properly
\nfilled up and therefore, the 2nd respondent is justified in issuing the impugned
\norder.\n<\/p>\n
\t9.Mr.Veera Kathiravan, the learned counsel appearing for the petitioner,
\nin both the writ petitions submitted that as per Rule 15 of the Tamil Nadu
\nRecognised Private School(Regulation) Rules, promotion can be made on the basis
\nof the merit and ability and the seniority is not the only a criteria for
\npromoting a person and when the merit and ability of persons, who are considered
\nfor promotion are approximately equal, then the seniority can be considered in
\nappointing a person and in this case, the School Committee was formed and the
\nSchool Committee, after considering the merits and ability of the N.Subramanian,
\nT.Amutha, A.Sathiyamoorthy and after evaluating the merit and ability, the
\nSchool Committee found that T.Amutha has secured more marks than the other two
\npersons and therefore, on the basis of the recommendation of the School
\nCommittee, T.Amutha was appointed and there is no need for approval for the
\nappointment of Head Master by the Department and N.Subramanian, who is the
\nsenior most teacher has also challenged, the appointment of T.Amutha as Head
\nMaster, by filing writ petition No.239 of 2010 and as the said T.Amutha has been
\nvalidly appointed as Head Master of the School Committee, she can be validly
\nappointed as Secretary as per the provision of Rule 13 of the Rules and hence,
\nthe proceedings issued by the respondents 1 and 2 cannot be sustained.\n<\/p>\n
\t10.I have given my anxious consideration to the submission made by both
\nthe counsels.\n<\/p>\n
\t11.It is admitted that T.Amutha was appointed as Secretary of the School
\nCommittee and the appointment was also approved by the first respondent, by his
\nproceedings, dated 30.05.2002. It is further admitted that when T.Amutha was
\nappointed as Secretary of the School Committee in the year 2002, she was not
\nworking as teacher in that School and she become an employee of the petitioner’s
\nSchool only later. It is also not in dispute, when the impugned order, dated
\n10.10.2008 passed by the first respondent, the post of Head Master was lying
\nvacant and T.Amutha was appointed as acting in-charge Head Master and she was
\nnot Head Master at that time. Therefore, the question that arises for
\nconsideration is whether a teacher can be appointed as Secretary of the School
\nCommittee or not?\n<\/p>\n
\t12.The answer to the above question can be given by analysing the
\nprovisions of Rule 12 and 13 of the Tamil Nadu Recognised Private School
\n(Regulation) Rules.  Rule 12 speaks about the formation of the School committee
\nand Rule 13 speaks about the appointment of Secretary to the School Committee.
\nAs per Rule 12, the School Committee is consisting of the following persons
\nviz., 1.Representatives of the Educational Agency (other than School employees)-
\n6, 2. Headmaster (Ex. Office)-1, 3. Senior most teachers-3, 4, PTA Nominee-1,\n<\/p>\n
5.Senior most non teaching available-1. Therefore, it is seen from Rule 12 that
\nrepresentative of the Educational Agency shall consist of persons other than
\nemployees of the School and also Head Master and senior most teachers. As per
\nRule 13 of the Act, the educational agency shall nominate one of its
\nrepresentatives as Secretary and the Head Master can also be appointed as
\nSecretary of the School Committee by the educational Agency.  Therefore, a
\ncombined reading of Rule 12 and 13 of the said Rule makes it clear that out of
\nthe 6 representatives nominated by the educational agency, one representative
\ncan be appointed as Secretary of the School Committee.  Admittedly, the
\npetitioner, T.Amutha is not the senior most teacher, who can become a member of
\nthe School Committee under the category of senior most teachers and she is also
\nnot the Head Master at that time and she could not be a representative of the
\neducational agency and it is clearly provided that only persons, who are not the
\nemployees of the School can be appointed in the School Committee as
\nrepresentative of the educational agency.  Therefore, the continuance of
\nT.Amutha as Secretary of the School Committee, after she became an employee of
\nthe School is not proper and it is against the provisions of rule 12 and 13 of
\nthe Act . Though in the judgment rendered in W.P.(MD)No.3011 of 2004, the
\nlearned Judge has held that Rule 13, permits educational agency to nominate one
\nof the member of the School Committee as Secretary of the School, the wording of
\nRule 13 is not so. As per Rule 13(1), the Educational Agency shall nominate one
\nof its representatives as Secretary.  The word representative used in Rule 13
\nmust be the representative of the educational Agency appointed by the Agency as
\nper Rule 12.  If any member of the educational agency can be nominated as
\nSecretary, then there is no meaning for the constitution of the School committee
\nconsisting of representative of the educational Agency.  In my opinion, a
\nSecretary can be appointed only from the members of the School Committee and the
\nSecretary can be either  the representatives of the educational Agency nominated
\nunder Rule 12 or the Head Master.  Further, an employee of the School cannot be
\nnominated as representative of the Educational Agency.  Admittedly, the said
\nT.Amutha is an employee of the School and hence, she cannot be a representative
\nof the educational Agency for being nominated as per Rule 12.  Probably Rule 12
\nmay not have been brought to the notice of the learned Judge while deciding that
\ncase  Further, admittedly, T.Amutha was appointed and approved as Secretary of
\nthe School Committee, when she was not employed in the School and therefore,
\nwhen she became an employee of the School, she cannot hold the post of Secretary
\nof the first respondent and hence, the [proceedings of the 1st respondent, dated
\n10.10.2008 withdrawing the recognition granted in favour of T.Amutha as
\nSecretary of the School is perfectly in order and cannot be interfered with.\n<\/p>\n
\t13.The other question that arises for consideration is whether the first
\nrespondent is right in ordering direct payment of aid to the School after
\nwithdrawing the recognition or approval of T.Amutha as Secretary of the School
\nCommittee.\n<\/p>\n
\t14.It is contended by Mr.Veera Kathiravan, the learned counsel appearing
\nfor the petitioner, in both the writ petitions, that no opportunity was given to
\nthe petitioner before passing of the impugned order and therefore, the order is
\nliable to be set aside.\n<\/p>\n
\t15.On the other hand, it is submitted by the learned Government Advocate
\nappearing for the respondents 1 and 2 that before issuing the impugned order,
\nthe School Committee was asked to submit its remarks about the functioning of
\nthe Secretary by T.Amutha and the management has given reply to the effect that
\nT.Amutha is acting as Head Master and therefore, she was allowed to function as
\nSecretary and the explanation was not accepted as T.Amutha is only Secondary
\nGrade Assistant employed in the School and is not senior most teacher and as per
\nRule 15 of the Act, only senior most teacher can be appointed as Head Master and
\ntherefore, after giving opportunity to the petitioner, the impugned order was
\npassed and therefore, it cannot be stated that the order is illegal for want of
\nopportunity given to the petitioner.\n<\/p>\n
\t16.It may be true that the first respondent had asked for explanation from
\nthe management about the competency of T.Amutha from acting as Secretary of the
\nSchool Committee after she became an employee of the School.  The management had
\nalso replied that she is acting as Head Master in-charge and therefore, she is
\ncompetent to function as Secretary.  As per Rule 15 of the Tamil Nadu Recognised
\nPrivate School ( Regulation) Rule, promotion can be given only on the basis of
\nmerit and ability and the seniority can be considered when merit and ability are
\napproximately equal and therefore, the contention of the respondents that only
\nsenior most teacher can be appointed as Head Master of the School and T.Amutha,
\nbeing a junior most cannot be appointed, cannot be accepted. Nevertheless, the
\nappointment of T.Amutha as Secretary of the School Committee was approved by the
\nfirst respondent, when she was not in employment of the School. When T.Amutha
\nbecame an employee of the School, as held supra, she cannot be appointed as
\nSecretary of the School, unless she is also appointed as Head Master of the
\nSchool.  Admittedly, the first respondent has not approved the appointment of
\nT.Amutha as Secretary of the School on the basis that she has been appointed as
\nHead Master in-charge. In other words, the first respondent approved the
\nappointment of T.Amutha as Secretary of the School Committee only when she was
\nnot an employee of the School.  Once, she became an employee of the School she
\nlosses her right to function as Secretary of the School unless she has been
\nvalidly appointed as Head Master or Headmistress and re-nominated as Secretary
\nin the capacity of Head Master.  Therefore, in the absence of any approval of
\nT.Amutha as Secretary of the School in her capacity as Head Master of the School
\nby the first respondent, the said T.Amutha cannot function as Secretary of the
\nSchool and therefore, the first respondent was right in ordering direct payment
\nof salary by the impugned order.  No-doubt, a proper show cause notice was not
\ngiven, but as per the counter of the first respondent, the management was asked
\nto submit his remarks about the competency of T.Amutha from acting as Secretary
\nand the reply submitted by the management was not satisfactory and hence, the
\norder was passed.  Therefore, it cannot be stated that without hearing the
\npetitioner, the impugned order was passed by the first respondent. Nevertheless,
\nthis question becomes academic, having regard to the subsequent events that had
\ntaken place.  Admittedly, a Selection Committee was appointed  for selecting the
\nHead Master of the School and the Selection Committee considered the merit and
\nability of three persons and found T.Amutha  suitable as she secured more marks
\nthan the two other persons and thereafter she was appointed her as Head Master.
\nAs per Rule 13, Head Master can be appointed as Secretary.  Therefore, there is
\nno impediment for the Head Master of the School to be nominated as Secretary of
\nthe School Committee.  As on date, the educational agency has not nominated the
\nsaid T.Amutha as Secretary of the School on the basis that she is the Head
\nMaster of the School and hence, till such nomination is made by the educational
\nagency nominating her as Secretary of the School Committee, the first respondent
\nis justified in ordering direct payment of aid for the petitioner.  Therefore,
\nthe order of the first respondent in withdrawing the recognition granted to
\nT.Amutha as Secretary of the School Committee is perfectly valid. Further till
\nT.Amutha is validly nominated as Secretary of the School Committee on the basis
\nof her posting as Head Master, there is no proper person to represent the School
\nCommittee and hence, the order of the 2nd respondent in ordering direct payment
\nof aid is valid.  However, the 2nd respondent is not justified in directing
\nsenior most teacher to be appointed as Head Master or Headmistress and it is
\nagainst the provision of Rule 15 of the Tamil Nadu Recognised Private School
\n(Regulation) Rules.  Hence, the order of the 2nd respondent, dated 13.10.2008 is
\nset aside to that extent and the proceedings of the first respondent, dated
\n10.10.2008 is upheld.\n<\/p>\n
\t17.In the result, W.P.(MD)No.9279 of 2008 is dismissed and W.P.(MD)No.9280
\nof 2008 is allowed in-part as indicated above. Consequently, Connected
\nMiscellaneous Petitions are closed. No costs.\n<\/p>\n
er<\/p>\n
To,<\/p>\n
1.The District Elementary Educational
\n    Officer, Thanjavur.\n<\/p>\n
2.The Assistant Elementary Educational Officer,
\n   Kumbakonam,<\/p>\n
3.The Government Advocate,
\n   Madurai Bench of Madras High Court,
\n   Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Bharathidasan Aided Primary … vs The District Elementary … on 11 June, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11\/06\/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.9279 of 2008 & W.P.(MD)No.9280 of 2008 and M.P.(MD)Nos.1 & 2 of 2008 Bharathidasan Aided Primary School Rep. by its Secretary Pillayampettai, Uma […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-124751","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBharathidasan Aided Primary ... vs The District Elementary ... on 11 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharathidasan-aided-primary-vs-the-district-elementary-on-11-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharathidasan Aided Primary ... vs The District Elementary ... on 11 June, 2010 - 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