{"id":15354,"date":"2007-02-27T00:00:00","date_gmt":"2007-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-secretary-vs-the-director-of-on-27-february-2007"},"modified":"2017-06-07T11:35:48","modified_gmt":"2017-06-07T06:05:48","slug":"the-secretary-vs-the-director-of-on-27-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-secretary-vs-the-director-of-on-27-february-2007","title":{"rendered":"The Secretary vs The Director Of on 27 February, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Secretary vs The Director Of on 27 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                      Dated: 27.02.2007\n\t\n\t\t\t CORAM\n\n           THE HONOURABLE MR.JUSTICE P.JYOTHIMANI\n\n                    W.P.No.41914 of 2006\n\n\nThe Secretary,\nNadar Committee Higher Secondary School,\nRamanathapuram,\nTirunelveli District.                  ... Petitioner\n\n\n                             Vs.\n\n1.   The Director of\n     School Education,\n     (Higher Secondary)\n     College Road,\n     Chennai-6.\n\n2.   The Chief Educational officer,\n     Tirunelveli-9.\n\n3.   A.Marimuthu                       ... Respondents\n\n\n\nPRAYER:   This writ petition is filed under Article  226  of\n\nthe  Constitution  of India to issue a writ  of  Certiorari,\n\ncalling fro the records relating to the proceedings  of  the\n\n1st respondent dated 27.01.2006 made in Mu.Mu.No.43880\/W7\/04\n\nquash  the  same  and  direct the 2nd respondent  to  accord\n\napproval to the decision of the petitioner to permit the 3rd\n\nrespondent  to  continue in service as PG Assistant  without\n\nbackwages and with continuity of service.\n\n\n          For Petitioner           : Mr.R.N.Amarnath\n\n          For Respondents R1 & R2  : Mr.D.Srinivasan G.A,\n\n          For Respondent R3        : Mr.V.Gangadaran\n                              \n                              \n                              \n                          O R D E R\n<\/pre>\n
     The writ petition is directed against the orders of the<\/p>\n
first  respondent  the  Director of School  Education  dated<\/p>\n
27.01.2006  by which the first respondent has  rejected  the<\/p>\n
request  of  the petitioner management to permit  the  third<\/p>\n
respondent  teacher  to continue as Post Graduate  Assistant<\/p>\n
with  back-wages and continuity of services and also  for  a<\/p>\n
direction  against  the  second respondent  to  accord  such<\/p>\n
approval  to  the  decision of the third  respondent  stated<\/p>\n
above.\n<\/p>\n<\/p>\n
      2.   The  facts  leading  to this  case  is  that  the<\/p>\n
petitioner school is a private school recognized  under  the<\/p>\n
Tamil Nadu Recognized Private Schools (Regulation) Act,  and<\/p>\n
rules  made  there  under.  The third  respondent,  who  was<\/p>\n
appointed  as a Post Graduate Assistant under the petitioner<\/p>\n
management,  has  committed some  irregularities,  based  on<\/p>\n
which  a  charge  memo issued to him and after  the  enquiry<\/p>\n
conducted by the school committee, it was decided to dismiss<\/p>\n
the  third respondent from service.  The charge against  the<\/p>\n
third  respondent was that he misbehaved with girl  students<\/p>\n
and  other  charges.  After the petitioner took decision  to<\/p>\n
dismiss  the  third respondent from service, the  petitioner<\/p>\n
sought  approval of the second respondent for such  decision<\/p>\n
as  it  is required under the Tamil Nadu Recognized  Private<\/p>\n
Schools  (Regulation) Act.  That was the petition filing  on<\/p>\n
01.11.1993.  However, the second respondent has  refused  to<\/p>\n
grant   approval  by  the order, dated 29.11.1993.   It  was<\/p>\n
against  the  said refusal, the petitioner has filed  appeal<\/p>\n
before  the  first respondent and the first  respondent  has<\/p>\n
dismissed  the  appeal  of  the  petitioner  management   on<\/p>\n
05.04.1994.   It was against the said order of dismissal  by<\/p>\n
the first respondent, the petitioner filed writ petition  in<\/p>\n
W.P.No.8362 of 1994, which was also dismissed by this  Court<\/p>\n
by  an  order dated 29.02.1998 and on a further appeal filed<\/p>\n
by  the petitioner in W.A.No.433 of 1998, by an order  dated<\/p>\n
04.03.2004  the  Hon’ble Division Bench while  allowing  the<\/p>\n
appeal filed by the petitioner management, has directed  the<\/p>\n
second   respondent  Chief  Educational  Officer  to  accord<\/p>\n
approval  for  the decision of the petitioner management  to<\/p>\n
dismiss the petitioner from service.\n<\/p>\n<\/p>\n
      3.  In the mean time, on representation from the third<\/p>\n
respondent to the petitioner tendering apology for the  past<\/p>\n
misconduct   and   requesting   for   reinstatement    dated<\/p>\n
05.12.2004,  the  school committee  of  the  petitioner  has<\/p>\n
passed  a  resolution on 25.12.2005, resolving to allow  the<\/p>\n
third  respondent  to continue in the school  without  back-<\/p>\n
wages.   It  is  this  proposal  of  the  petitioner  school<\/p>\n
committee,  which  was rejected by the first  respondent  on<\/p>\n
27.01.2006 under the impugned order.\n<\/p>\n<\/p>\n
     4.  The writ petition is filed on the ground that it is<\/p>\n
for  the second respondent to decide the issue and the first<\/p>\n
has  no jurisdiction.  That by virtue of the impugned  order<\/p>\n
of  the first respondent the petitioner management has  lost<\/p>\n
the right of appeal and also on the ground that the view  of<\/p>\n
the  first  respondent in the impugned order that when  once<\/p>\n
the school committee of the petitioner management decided to<\/p>\n
dismiss  the  third  respondent, it has no  jurisdiction  to<\/p>\n
allow  the  third respondent to continue in service  without<\/p>\n
back-wages is not correct.  It is also the contention of the<\/p>\n
petitioner management that the order of the first respondent<\/p>\n
amounted to interference with the jurisdiction and powers of<\/p>\n
the  petitioner in respect of appointment and inflicting  of<\/p>\n
punishments.\n<\/p>\n<\/p>\n
      5.  On the other hand, the second respondent has filed<\/p>\n
a  counter affidavit.  While admitting the factual  position<\/p>\n
as  stated  in  the  affidavit filed by  the  petitioner  in<\/p>\n
support  of  the writ petition, the second respondent  would<\/p>\n
submit  that  after the judgement of the Division  Bench  of<\/p>\n
this  Court  in  directing the second  respondent  to  grant<\/p>\n
approval  for  the  dismissal of the service  of  the  third<\/p>\n
respondent,  the  petitioner  has  sent  a  proposal   dated<\/p>\n
07.02.2005, stating that the school committee has decided to<\/p>\n
withdraw  its earlier request for permission to dismiss  the<\/p>\n
third  respondent and allow him to continue  by  reinstating<\/p>\n
into   service.   Since  that  proposal  of  the  petitioner<\/p>\n
management dated 07.02.2005 was against the direction of the<\/p>\n
Hon’ble  Division  Bench in W.A.No.433 of 1998,  the  second<\/p>\n
respondent  sought clarification from the  first  respondent<\/p>\n
and  the first respondent in the impugned order has directed<\/p>\n
that the said proposal to reinstate the third respondent, is<\/p>\n
not  acceptable,  since  it  is against  the  order  of  the<\/p>\n
Division  Bench.  While it is true that the Chief  Education<\/p>\n
Officer  is  the  competent authority  in  respect  of  Post<\/p>\n
Graduate  Teachers to grant approval for  the  proposal  for<\/p>\n
dismissal  as per the Tamil Nadu Recognized Private  Schools<\/p>\n
(Regulation) Act, the second respondent would state that  as<\/p>\n
per  the  provision  of the said act, a  teacher  cannot  be<\/p>\n
placed  under suspension for a period of more than 4  months<\/p>\n
and in such circumstances, the third respondent has not made<\/p>\n
any  appeal against that order and he kept silent  for  more<\/p>\n
than 11 years and there is no provision under the Tamil Nadu<\/p>\n
Recognized Private Schools (Regulation) Act, to represent to<\/p>\n
the  school  committee to take him back after 11  years  and<\/p>\n
school  committee has no power to reappoint  the  petitioner<\/p>\n
after  11  years.  There is a violation of Section 22(3)  of<\/p>\n
the  Tamil Nadu Recognized Private Schools (Regulation) Act.<\/p>\n
Therefore, according to the second respondent the resolution<\/p>\n
of  the  school committee dated 25.12.2004 to reinstate  the<\/p>\n
petitioner into service from 03.01.2005 and treat the  break<\/p>\n
in service from 30.07.2003 to 02.01.2005 as leave on loss of<\/p>\n
pay  is  not  in  accordance with the Tamil Nadu  Recognized<\/p>\n
Private Schools (Regulation) Act.\n<\/p>\n<\/p>\n
      6.   It is also the case of the second respondent that<\/p>\n
as against the order of the first respondent, the petitioner<\/p>\n
has  made  a  representation to the Government on 08.03.2006<\/p>\n
and the same is under consideration of the Government, which<\/p>\n
has  called for certain remarks and records.  It is also the<\/p>\n
case of the second respondent that the second respondent  is<\/p>\n
the  authority  to  accord permission to  dismiss  the  Post<\/p>\n
Graduate  Teacher  and  not  the  authority  to  permit  the<\/p>\n
petitioner to reinstate.  It is also the case of the  second<\/p>\n
respondent that the second respondent is under obligation by<\/p>\n
the  decision  of  the  Hon’ble  Division  Bench  to  accord<\/p>\n
approval  of  the  dismissal of  the  third  respondent  and<\/p>\n
therefore, the second respondent cannot grant any permission<\/p>\n
for  reinstating the third respondent which will be  against<\/p>\n
the order of the Division Bench.\n<\/p>\n<\/p>\n
      7.  Mr.R.N.Amarnath, learned counsel appearing for the<\/p>\n
petitioner would submit that the petitioner management being<\/p>\n
a  private school as per the provisions of the Act,  through<\/p>\n
its school committee is empowered to make appointment or  to<\/p>\n
take  disciplinary actions against any teachers.  As far  as<\/p>\n
the  appointments  made by its school committee  within  the<\/p>\n
sanctioned  strength created by the Educational Authorities,<\/p>\n
there  is  no  approval required except in cases  where  the<\/p>\n
qualifications  of the persons appointed are under  dispute,<\/p>\n
in which case affected parties have a right of appeal to the<\/p>\n
Educational  Authorities and also a formal  information  for<\/p>\n
the  purpose of release of teaching grants.  It is  only  in<\/p>\n
respect  of dismissal or removal or termination or otherwise<\/p>\n
termination  from  service which requires a  prior  approval<\/p>\n
from the competent authority.  While it is true that earlier<\/p>\n
the petitioner management has sent a proposal for dismissing<\/p>\n
the  third respondent seeking the  approval from the  second<\/p>\n
respondent, the  second respondent on merit has  come  to  a<\/p>\n
conclusion  that  charges against the third respondent  were<\/p>\n
not  proved.  It is also his contention that even after  the<\/p>\n
Hon’ble Division Bench has passed order allowing the  appeal<\/p>\n
filed  by the management and directing the second respondent<\/p>\n
to  grant approval for dismissal of the third respondent  by<\/p>\n
the  order dated 04.03.2004, the second respondent  has  not<\/p>\n
chosen  to  pass any such order of approval till  date.   In<\/p>\n
such  circumstances, being the appointing  authority  it  is<\/p>\n
certainly  open  to  the  petitioner  to  vary  its  earlier<\/p>\n
decision  under  a changed circumstance and that  cannot  be<\/p>\n
prevented  by the order of the first respondent.   He  would<\/p>\n
also  submit that at the most the first respondent  can  say<\/p>\n
that  during the period of decision taken by the  management<\/p>\n
to  dismiss  the  third respondent, the grant  will  not  be<\/p>\n
released on the basis of no work no pay.\n<\/p>\n
      8.   The  third  respondent has also filed  a  counter<\/p>\n
affidavit.   While admitting all the factual  position,  the<\/p>\n
third  respondent would submit that there was  a  compromise<\/p>\n
under  which the school committee of the petitioner and  the<\/p>\n
third  respondent have agreed for certain terms.   One  such<\/p>\n
term is that the third respondent has agreed not to file any<\/p>\n
appeal  before  the  Supreme  Court  of  India  against  the<\/p>\n
judgement  of  the  Division Bench and the third  respondent<\/p>\n
should  tender  a  letter  of  apology  undertaking  to  act<\/p>\n
properly  in  future and also the third  respondent  has  to<\/p>\n
forego  all his allowances.  The third respondent is  having<\/p>\n
two daughters and he is not having any property and in those<\/p>\n
circumstances,   by  taking  a  lenient  view,   the   first<\/p>\n
respondent school committee has taken a decision and  by  an<\/p>\n
order  dated 27.12.2004, the third respondent was reinstated<\/p>\n
and  he  also  joined  from 03.01.2005 and  working  without<\/p>\n
salary for the past 24 months.\n<\/p>\n<\/p>\n
     9.  On the other hand, the learned Government Advocate,<\/p>\n
who  has appeared for the first and second respondents would<\/p>\n
submit that inasmuch as the Hon’ble Division Bench judgement<\/p>\n
is  clear, the Educational Authority cannot decide  anything<\/p>\n
contrary to the same.\n<\/p>\n<\/p>\n
     10.  Mr.V.Gangadaran, learned counsel appearing for the<\/p>\n
third  respondent  also  would adopt  the  argument  of  the<\/p>\n
learned counsel appearing for the petitioner.<\/p>\n
       11.   I  have  heard  the  learned  counsel  for  the<\/p>\n
petitioner  as  well as the learned counsel for  respondents<\/p>\n
and perused the entire records.\n<\/p>\n<\/p>\n
     12.  While facts in this case are not in dispute, it is<\/p>\n
relevant to point out that the petitioner management is  the<\/p>\n
Educational agency of an aided school, which is governed  by<\/p>\n
the  provisions of the Tamil Nadu Recognized Private Schools<\/p>\n
(Regulation)  Act.   It  is also not  in  dispute  that  the<\/p>\n
petitioner management has constituted a school committee  as<\/p>\n
per  the requirement of Rule 12 of the Tamil Nadu Recognized<\/p>\n
Private  Schools  (Regulation) Rules.  The school  committee<\/p>\n
under the Tamil Nadu Recognized Private Schools (Regulation)<\/p>\n
Act  1973, is entrusted with the functions under Section  18<\/p>\n
of the said Act, which runs as follows:\n<\/p>\n
     “18.   Functions  of  the  school  committee   and<\/p>\n
     responsibility  of educational  agency  under  the<\/p>\n
     Act.-\n<\/p><\/blockquote>\n
     (1)  Subject to the provisions of this Act and the<\/p>\n
     rules  made thereunder, the school committee shall<\/p>\n
     have the following functions, namely –<\/p>\n<\/blockquote>\n
           (a)   to carry on the general administration<\/p>\n
     of  the  private  school excluding the  properties<\/p>\n
     and funds of the private school;\n<\/p><\/blockquote>\n
           (b)  to appoint teachers and other employees<\/p>\n
     of   the   private  school,  fix  their  pay   and<\/p>\n
     allowances and define and the conditions of  their<\/p>\n
     service; and<\/p>\n<\/blockquote>\n
           (c)  to  take  disciplinary  action  against<\/p>\n
     teachers  and  other  employees  of  the   private<\/p>\n
     school.\n<\/p><\/blockquote>\n
           (2)   The educational agency shall be  bound<\/p>\n
     by  anything done by the school committee  in  the<\/p>\n
     discharge of the functions of the committee  under<\/p>\n
     this Act.\n<\/p><\/blockquote>\n
           (3)   For  the  purposes of  this  Act,  any<\/p>\n
     decision  or action taken by the school  committee<\/p>\n
     in  respect  of any matter over which  the  school<\/p>\n
     committee has jurisdiction shall be deemed  to  be<\/p>\n
     the  decision  or action taken by the  educational<\/p>\n
     agency.”<\/p><\/blockquote>\n
      13.   Therefore, one of the functions  of  the  school<\/p>\n
committee  is  to  appoint teachers and other  employees  of<\/p>\n
private  schools  fix  their pay and allowances  and  define<\/p>\n
their  duties  and the conditions of their  services,  apart<\/p>\n
from taking disciplinary action against teachers.<\/p>\n
      14.  In respect of suspension of the teachers employed<\/p>\n
in  the  aided  private school Section 22(3) states  that  a<\/p>\n
teacher  or  a  person employed in a private school  can  be<\/p>\n
placed under suspension for a period of 2 months, which  can<\/p>\n
be  extended by another period of 2 months by the  competent<\/p>\n
authority  and  such suspension can be only  in  respect  of<\/p>\n
pendency of enquiry into grave misconduct within the meaning<\/p>\n
of the code of conduct prescribed under Section 21(1) of the<\/p>\n
Act.  Section 22(3) runs as follows:\n<\/p>\n
     “21.   Teachers  and  other persons  employed  in<\/p>\n
     private  schools  to  be  governed  by  Code   of<\/p>\n
     Conduct.-  (1)  Every  teacher  and  every  other<\/p>\n
     persons  employed in any private school shall  be<\/p>\n
     governed  by  such  Code of  Conduct  as  may  be<\/p>\n
     prescribed and if any teacher or other person  so<\/p>\n
     employed violates any provision of such  Code  of<\/p>\n
     Conduct,  he shall be liable to such disciplinary<\/p>\n
     action as may be prescribed.”<\/p><\/blockquote>\n
      15.  Therefore, a reading of the Section 22(3) clearly<\/p>\n
contemplates  that when once a teacher or a person  employed<\/p>\n
in   a  private  school  is  placed  under  suspension,  the<\/p>\n
suspension  is only for a period of 2 months  and  within  2<\/p>\n
months  if  the enquiry is not completed such teacher  or  a<\/p>\n
person  employed  shall  be deemed  to  have  been  restored<\/p>\n
without  prejudice to the enquiry, however, with  a  proviso<\/p>\n
that  the  period  can  be extended for  another  2  months.<\/p>\n
Therefore,  it is clear that in any event, after the  expiry<\/p>\n
of 4 months from the date of suspension, such teacher or any<\/p>\n
other person employed in a private school is deemed to  have<\/p>\n
been  reinstated.   Then, for the purpose  of  dismissal  or<\/p>\n
removal or termination or otherwise of any teacher or person<\/p>\n
employed  in  a  private school after the  enquiry,  Section<\/p>\n
22(1)  states  that such termination cannot be  done  except<\/p>\n
with  the  prior  approval of the competent authority.   The<\/p>\n
said section runs as follows:\n<\/p>\n
     “22.  Dismissal, removal or reduction in rank  or<\/p>\n
     suspension of teachers or other persons  employed<\/p>\n
     in private schools.- (1) Subject to any rule that<\/p>\n
     may  be made in this behalf, no teacher or  other<\/p>\n
     person  employed in any private school  shall  be<\/p>\n
     dismissed, removed, or reduced in rank nor  shall<\/p>\n
     his  appointment  be otherwise terminated  except<\/p>\n
     with   the   prior  approval  of  the   competent<\/p>\n
     authority.”<\/p><\/blockquote>\n
      16.   It  is  also relevant to point out that  Section<\/p>\n
22(2) which runs as follows:\n<\/p>\n
     “(2)   Where the proposal to dismiss,  remove  or<\/p>\n
     reduce   in  rank  or  otherwise  terminate   the<\/p>\n
     appointment  of  any  teacher  or  other   person<\/p>\n
     employed in any private school is communicated to<\/p>\n
     the competent authority, that authority shall, if<\/p>\n
     it  is  satisfied  that there  are  adequate  and<\/p>\n
     reasonable  grounds  for such  proposal,  approve<\/p>\n
     such  dismissal, removal, reduction  in  rank  or<\/p>\n
     termination of appointment.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Contemplates  that  when  such  proposal  is  sent  to   the<\/p>\n
competent authority, it is the duty of that authority if  it<\/p>\n
is  satisfied that there are adequate reasons and grounds to<\/p>\n
approve  such  dismissal.   In  the  present  case,  when  a<\/p>\n
proposal for dismissal of the third respondent was  sent  by<\/p>\n
the  petitioner on 01.11.1993, by virtue of the powers under<\/p>\n
Section  22(2)  of  the  Act, the  second  respondent  being<\/p>\n
admittedly  the  competent authority has  refused  to  grant<\/p>\n
permission or prior approval for the dismissal of the  third<\/p>\n
respondent.\n<\/p>\n<\/p>\n
      17.  It is true that thereafter an appeal was filed by<\/p>\n
the  first respondent and the writ petition was filed before<\/p>\n
this  Court  and  ultimately the writ appeal  filed  by  the<\/p>\n
management came to be allowed with a direction to the second<\/p>\n
respondent  to  grant  approval  for  the  proposal  of  the<\/p>\n
petitioner management dated 01.11.1993 to dismiss the  third<\/p>\n
respondent.   That  was  the order  passed  by  the  Hon’ble<\/p>\n
Division  Bench on 04.03.2004.  Various issues were involved<\/p>\n
in  these proceedings including the validity or otherwise of<\/p>\n
the   constitution  of  the  school  committee   etc.,   and<\/p>\n
ultimately  the  Hon’ble  Division  Bench  in  the  decision<\/p>\n
rendered  on 04.03.2004 while dealing extensively  with  the<\/p>\n
powers of the school committee to delegate its powers to the<\/p>\n
subcommittee for the purpose of conducting enquiry etc., and<\/p>\n
arriving  at  a conclusion that such enquiry is  permissible<\/p>\n
and  also  having  arrived at a conclusion that  the  school<\/p>\n
committee   of   the  petitioner  management   has   validly<\/p>\n
constituted, but considering that the charges framed against<\/p>\n
the  third respondent are very serious in nature and Section<\/p>\n
22  only contemplates a prima facie satisfaction on the part<\/p>\n
of  the second respondent whether the approval to be granted<\/p>\n
or not and not on factual merits, has set aside the order of<\/p>\n
the  second  respondent dated 29.11.1993 refusing  to  grant<\/p>\n
prior  approval  for dismissal of the third  respondent  and<\/p>\n
directed the second respondent to accord approval in view of<\/p>\n
the  findings  given by the Division Bench.   The  operative<\/p>\n
portion of the judgement of the Hon’ble Division Bench is as<\/p>\n
follows:\n<\/p>\n
     “9.  The materials placed before us show that the<\/p>\n
     allegations against the third respondent are very<\/p>\n
     serious and grave in nature, as he has misbehaved<\/p>\n
     with  the girl students who were studying in  the<\/p>\n
     school.  In view of the report submitted  by  the<\/p>\n
     Sub  Committee, which was accepted by the  School<\/p>\n
     Committee,   the  Committee  sought   for   prior<\/p>\n
     approval from the second respondent, in terms  of<\/p>\n
     Section  22  of  the Act.  The second  respondent<\/p>\n
     went  into  the facts by considering  the  entire<\/p>\n
     materials,   though   he   had   no   powers   or<\/p>\n
     jurisdiction  to  act as an appellate  authority,<\/p>\n
     and  gave  his  findings thereon  which  are  not<\/p>\n
     contemplated  either under the Act or  under  the<\/p>\n
     Rules,  since Section 22 contemplates only  prima<\/p>\n
     facie  satisfaction to find out whether  approval<\/p>\n
     can be granted or not for the punishment proposed<\/p>\n
     by  the School Committee on the third respondent.<\/p>\n
     Though  the  second  respondent  went  into   the<\/p>\n
     factual  aspects and ultimately refused to  grant<\/p>\n
     approval,  the appellate authority,  before  whom<\/p>\n
     the appeal was preferred by the appellant against<\/p>\n
     the  orders  of  the second respondent,  did  not<\/p>\n
     consider the factual aspects, but disposed of the<\/p>\n
     appeal  by simply stating that the committee  did<\/p>\n
     not have proper quorum and that the Sub Committee<\/p>\n
     cannot  enquire into the allegations.   Since  we<\/p>\n
     have already held that the second respondent,  as<\/p>\n
     Chief  Educational  Officer,  has  no  powers  to<\/p>\n
     consider the factual merits, we cannot, but,  set<\/p>\n
     aside  the  order  dated 29.11.1993,  as  it  was<\/p>\n
     passed on merits.  Accordingly, we set aside  the<\/p>\n
     orders  of  the  first and second respondents  as<\/p>\n
     well  as  the order of the learned single  judge.<\/p>\n
     The  writ  appeal is allowed with a direction  to<\/p>\n
     the  second  respondent,  the  Chief  Educational<\/p>\n
     Officer  to accord approval in view of the  above<\/p>\n
     findings.”<\/p><\/blockquote>\n
      18.  It is admitted that in spite of the said positive<\/p>\n
order  given  by the Hon’ble Division Bench as early  as  on<\/p>\n
04.03.2004 clearly holding that it is not for the respondent<\/p>\n
to  got  into the substantive material but only prima  facie<\/p>\n
proof  and  therefore, it was the duty on the  part  of  the<\/p>\n
second respondent to grant approval for the proposal of  the<\/p>\n
petitioner   to  terminate  the  services   of   the   third<\/p>\n
respondent, admittedly, the second respondent has not  acted<\/p>\n
as  per the direction of the Hon’ble Division Bench even  as<\/p>\n
on  today and no approval has been given for the proposal of<\/p>\n
the  petitioner management dated 01.11.1993 for  termination<\/p>\n
of the third respondent.\n<\/p>\n<\/p>\n
      19.  In such circumstances, by virtue of the operation<\/p>\n
of   law,  namely,  by  Section  22(1)  of  the  Tamil  Nadu<\/p>\n
Recognized Private Schools (Regulation) Act, 1974, there  is<\/p>\n
every   reason  to  believe  that  there  is  no  order   of<\/p>\n
termination  against the third respondent in existence.   It<\/p>\n
is  relevant  to  point  out that  even  from  the  date  of<\/p>\n
suspension   after   4   months  there   is   an   automatic<\/p>\n
reinstatement  by  virtue of Section 22(3)(b)  of  the  Act.<\/p>\n
Therefore, on the factual situation that even as  on  today,<\/p>\n
the  second  respondent,  who  is  admittedly  an  authority<\/p>\n
competent  to grant prior approval for the proposal  of  the<\/p>\n
petitioner management to dismiss the services of  the  third<\/p>\n
respondent has not granted such prior approval, the decision<\/p>\n
of the petitioner management of the year 1993 can only be at<\/p>\n
the most treated as nonest and such decision for termination<\/p>\n
is  not  operative  in  the eye of  law  by  virtue  of  the<\/p>\n
provisions  of  the  Tamil Nadu Recognized  Private  Schools<\/p>\n
(Regulation) Act, 1974.\n<\/p>\n<\/p>\n
      20.   It  is  in  this background of  this  case,  the<\/p>\n
question  arises as to whether the petitioner management  is<\/p>\n
not  entitled to reconsider its earlier decision to  employe<\/p>\n
the   third   respondent  or  otherwise  if  the  petitioner<\/p>\n
management  being  the  appointing  authority  given   power<\/p>\n
through  its school committee by virtue of Section  18(1)(b)<\/p>\n
of  the  Act,  to appoint any person decides to appoint  the<\/p>\n
third  respondent,  can any one of the  respondent  or  this<\/p>\n
Court  for that matter decide that the petitioner management<\/p>\n
has no such powers?\n<\/p>\n<\/p>\n
     21.   A reading of the entire Act shows that the powers<\/p>\n
of  appointment and taking disciplinary action vest with the<\/p>\n
school  committee.   No  where  the  provision  of  the  Act<\/p>\n
contemplates  that for appointing a teacher  by  the  school<\/p>\n
committee  an approval is required except stating  that  the<\/p>\n
qualification  are  to  be  mandatorily  followed  and   the<\/p>\n
appointments are to be made subject to the maximum  strength<\/p>\n
as  per the Government Order passed from time to time  based<\/p>\n
on  the  student teacher ratio, which is a matter of policy.<\/p>\n
That   power  is  available  to  the  Government   and   the<\/p>\n
Educational  Authorities  on  the  ground  that  it  is  the<\/p>\n
government, which is releasing 100% teaching grants for  the<\/p>\n
teachers.\n<\/p>\n<\/p>\n
      22.   On  the other hand, the Act provides  for  prior<\/p>\n
approval  only  for  termination  of  teachers  and   others<\/p>\n
employed, which is intended only to protect the teachers and<\/p>\n
other  employees  in  the  aided private  schools  from  the<\/p>\n
conduct   of  the  managements,  in  affecting  the  service<\/p>\n
conditions  of  such teachers and persons  employed  in  the<\/p>\n
private  management.  Therefore, the power of management  to<\/p>\n
make  appointment can be restricted only on the ground  that<\/p>\n
the  person appointed is not having necessary qualification,<\/p>\n
which  is  required  as per the Act or in  cases  where  the<\/p>\n
appointment  sought  to  be made is against  the  sanctioned<\/p>\n
strength  of  the school as approved by the Government  from<\/p>\n
time  to  time, based on the student teacher ratio and  also<\/p>\n
the   strength  of  students,  which  has  to  be   assessed<\/p>\n
periodically  by virtue of the Government Order,  which  are<\/p>\n
passed from time to time.\n<\/p>\n<\/p>\n
      23.   On  the  facts of this case no one of  the  said<\/p>\n
conditions  are involved, since it is not even the  case  of<\/p>\n
the  respondents  1 and 2 that the third respondent  is  not<\/p>\n
qualified  or  the  appointment is made by the  petitioner’s<\/p>\n
school beyond the sanctioned strength.  The reason given  in<\/p>\n
the  impugned order by the first respondent is that when the<\/p>\n
Hon’ble Division Bench of this Court has directed the second<\/p>\n
respondent to grant approval for the dismissal of the  third<\/p>\n
respondent, contrary to that no approval can be granted  for<\/p>\n
the  purpose of permitting the third respondent to continue.<\/p>\n
As  I have stated earlier, inasmuch as the second respondent<\/p>\n
has  failed  to  act as per the directions  of  the  Hon’ble<\/p>\n
Division  Bench, that cannot be a ground for the purpose  of<\/p>\n
obstructing  the  right  of the petitioner  management  from<\/p>\n
reconsidering its earlier decision.\n<\/p>\n<\/p>\n
      24.  On the other hand, if after the second respondent<\/p>\n
granted prior approval for dismissal of the third respondent<\/p>\n
and  in spite of that the management wanted to reinstate the<\/p>\n
third  respondent into service, the enabling provisions  are<\/p>\n
available  under  the Tamil Nadu Recognized Private  Schools<\/p>\n
(Regulation)  Act, 1974 for the Government  and  educational<\/p>\n
authorities for withdrawal of recognition, apart  from  many<\/p>\n
other  remedial measures, since such conduct may  amount  to<\/p>\n
disobedience to the directions of the authorities for  which<\/p>\n
there   are   adequate  provisions  under  the  Tamil   Nadu<\/p>\n
Recognized  Private  Schools  (Regulation)  Act,   1974   by<\/p>\n
treating  as  mismanagement etc.  But in my considered  view<\/p>\n
that  cannot  be  a  ground to prevent  any  action  by  the<\/p>\n
petitioner  management  to reemploy  the  third  respondent.<\/p>\n
This  I  am emboldened to state purely due to the reason  of<\/p>\n
the  failure  on  the part of the second respondent  in  not<\/p>\n
acting  as per the directions of the Hon’ble Division Bench.<\/p>\n
If  only the second respondent has quickly acted as per  the<\/p>\n
direction of the Hon’ble Division Bench, since certainly the<\/p>\n
charges framed against the third respondent are very serious<\/p>\n
in nature, this nebulous situation would not have arisen and<\/p>\n
there  would  not  have been an occasion  for  a  compromise<\/p>\n
between  the petitioner and the third respondent,  since  no<\/p>\n
such  compromise and agreement can act against the statutory<\/p>\n
compulsions.\n<\/p>\n<\/p>\n
      25.   It is the case of the petitioner management that<\/p>\n
considering  the  plight  of the third  respondent,  who  is<\/p>\n
stated to have two female children and also his age, namely,<\/p>\n
52  years  and he is stated to have given an undertaking  to<\/p>\n
behave properly, apart from giving undertaking that he  will<\/p>\n
not  claim  salary for the period from the date of dismissal<\/p>\n
by  the  petitioner management till the date of decision  to<\/p>\n
appoint  the third respondent the decision of reinstate  him<\/p>\n
was  stated  to have been taken.  It is also seen  that  the<\/p>\n
petitioner  by the appointment order dated 27.12.2004  given<\/p>\n
to the third respondent through its school committee meeting<\/p>\n
held   on  25.12.2004  has  decided  to  appoint  the  third<\/p>\n
respondent  only  on  compassionate ground  from  03.01.2005<\/p>\n
subject  to  the  approval  of  appointment  of  the   third<\/p>\n
respondent  by  the  Educational  Authorities.   When   such<\/p>\n
proposal   was   sent  by  the  petitioner   management   on<\/p>\n
07.02.2005,  the  first respondent has chosen  to  pass  the<\/p>\n
impugned order, mainly on the ground that granting  of  such<\/p>\n
approval will be against the decision of the Division Bench.<\/p>\n
As  I  have stated earlier the Hon’ble Division Bench having<\/p>\n
found  that  the earlier decision of the school  management,<\/p>\n
namely, the petitioner in deciding to terminate the services<\/p>\n
of  the  third respondent is valid, has directed the  second<\/p>\n
respondent, who is the competent authority to grant approval<\/p>\n
and  such approval has not been granted so far and  in  such<\/p>\n
circumstances  as  per  the provisions  of  the  Tamil  Nadu<\/p>\n
Recognized Private Schools (Regulation) Act, 1974, there  is<\/p>\n
deemed to be no termination order.\n<\/p>\n<\/p>\n
     26.  In view of the same, the reason given by the first<\/p>\n
respondent and the impugned order is not sustainable and the<\/p>\n
impugned order is quashed.  The writ petition stands allowed<\/p>\n
with a direction to the second respondent to pass orders  on<\/p>\n
the  proposal of the petitioner management dated  07.02.2005<\/p>\n
treating  it as a fresh appointment of the third  respondent<\/p>\n
in  the petitioner school and decide the issue in accordance<\/p>\n
with  law  making  it  clear  that  it  is  for  the  second<\/p>\n
respondent  to  decide  about the claim  of  the  petitioner<\/p>\n
regarding  continuity  of service to  be  granted  to  third<\/p>\n
respondent.   Considering the circumstance  that  the  third<\/p>\n
respondent has accepted to forego the salary for the  period<\/p>\n
from  the  date  of  proposal for termination  made  by  the<\/p>\n
petitioner earlier till the date of reappointment  and  such<\/p>\n
order shall be passed by the first and second respondents on<\/p>\n
the facts and circumstances of the case within a period of 8<\/p>\n
weeks from the date of receipt of a copy of this order.   No<\/p>\n
Costs.  Consequently, the connected M.Ps. are closed.<\/p>\n
nbj<\/p>\n
To<\/p>\n
1.   The Director of
\n     School Education,
\n     (Higher Secondary)
\n     College Road,
\n     Chennai-6.\n<\/p>\n
2.   The Chief Educational officer,
\n     Tirunelveli-9.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Secretary vs The Director Of on 27 February, 2007 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. […]<\/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-15354","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Secretary vs The Director Of on 27 February, 2007 - 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\/the-secretary-vs-the-director-of-on-27-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Secretary vs The Director Of on 27 February, 2007 - 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