{"id":62392,"date":"2007-10-09T00:00:00","date_gmt":"2007-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-correspondent-vs-silva-fernando-on-9-october-2007"},"modified":"2018-09-12T08:36:46","modified_gmt":"2018-09-12T03:06:46","slug":"the-correspondent-vs-silva-fernando-on-9-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-correspondent-vs-silva-fernando-on-9-october-2007","title":{"rendered":"The Correspondent vs Silva Fernando on 9 October, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Correspondent vs Silva Fernando on 9 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 09\/10\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.K.MISRA\nand\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nW.A.(MD)No.476 of 2007\nand\nM.P(MD).No.2 of 2007\n\n\nThe Correspondent,\nOur Lady of Lourdes Girls\nHigher Secondary School,\nDindigul.\t\t\t...\tAppellant\n\n\nVs.\n\n\n1.Silva Fernando\n2.The District Educational Officer,\n  Dindigul.\n3.The Chief Educational Officer,\n  Dindigul.\t\t\t...\tRespondents\n\n\nPRAYER\n\n\nWrit Appeal filed under Clause 15 of Letters Patent, against the order\nof the learned Single Judge dated 14.08.2007, passed in W.P.No.5350 of 2007.\n\n\n!For Appellant\t\t...\tMr.Veera Kathiravan\n\n\n^For Caveator\t\t...\tMr.S.Kadarkarai\n\n\nFor Respondent\t\t...\tMrs.V.Chellammal\nNos.2 and 3\t\t  \tSpecial Government Pleader\n\n\n\n:JUDGMENT\n<\/pre>\n
\t(Judgment of the Court was delivered by P.R.SHIVAKUMAR, J)<\/p>\n
\t\tThis Writ Appeal is directed against the order of this Court dated
\n14.08.2007 made by the learned Single Judge in W.P.No.5350 of 2007.\n<\/p>\n
\t\t2. We have heard the submissions made by Mr.Veera Kathiravan,
\nlearned counsel appearing for the petitioner, by Mr.S.Kadarkarai, learned
\ncounsel appearing for the caveator and also by Mrs.V.Chellammal, learned
\nSpecial Government Pleader appearing for the respondents 2 and 3.\n<\/p>\n
\t\t3. The first respondent herein had filed the above said writ
\npetition praying for the issue of a Writ of Mandamus, forbearing the appellant
\nfrom interfering with her right to continue in service as Physical Education
\nTeacher in the appellant’s School by appointing any other person to the said
\npost in the place of the first respondent\/writ petitioner. She had also prayed
\nfor a consequential direction for the disbursement of her salary on the basis of
\nlast pay drawn by her.\n<\/p>\n
\t\t4. According to the first respondent\/writ petitioner, she was
\nappointed in the appellant’s school as Junior Grade Physical Education Teacher
\nas against a sanctioned post in a permanent vacancy with effect from 02.06.2005
\ninitially on a consolidated pay of Rs.3,000\/- per month. However, as per the
\nsubsequent order of the District Educational Officer, she was regularized and
\nwas paid time scale of pay with effect from 02.06.2006. While so, the appellant
\ntook a stand that the first respondent\/writ petitioner, hailing from an outside
\nDistrict, could not set up a house in Dindigul and hence, she wanted to resign
\nher job and that she had also affixed her signature in the Service Register for
\nthe said purpose. With the above said contention, the appellant Management
\nwanted to dispense with the services of the first respondent\/writ petitioner. In
\nsuch circumstances, the first respondent\/writ petitioner gave a complaint to the
\nDistrict Educational Officer, who in turn, sent a letter to the appellant
\nManagement directing the Management to furnish the particulars of the
\nresignation letter, if any, given by the first respondent\/writ petitioner to the
\nDepartment. Meanwhile, the appellant had also issued an order appointing one
\nSelvi.J.Jenitta as Junior Grade Physical Education Teacher in the place of the
\nfirst respondent\/writ petitioner with effect from 04.06.2007 and sent the same
\nfor the approval of the District Educational Officer. In the said appointment
\norder, the appellant had stated that the post fell vacant due to the resignation
\nof the first respondent\/writ petitioner on 31.05.2007 After Noon. Under the
\nabove said circumstances, the first respondent\/writ petitioner had approached
\nthis Court for the reliefs indicated above.\n<\/p>\n
\t\t5. In the writ petition, obviously knowing the weakness of the
\nearlier stand as if the first respondent\/writ petitioner had resigned, the
\nappellant Management had taken an altogether different stand to the effect that
\nthe appointment of the first respondent\/writ petitioner was purely on temporary
\nbasis for a period of one year alone (from 02.06.2006 to 31.05.2007) and that
\nthe same was a stop gap arrangement till a regular appointment was made.\n<\/p>\n
\t\t6. The learned Single Judge, after hearing both sides and upon
\nperusing the materials brought on record, held that the appointment was not
\ntemporary, but was made on regular basis. Regarding the other contention that
\nthe writ petitioner had resigned, the learned Single Judge relied on the
\njudgment of Madras High Court in K.Chettiappan Vs. The Chief Educational
\nOfficer, Ramanathapuram and others reported in 2000 Writ L.R.300 and held that
\nRule 17-A of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974
\nwould apply to minority schools also. The learned Single Judge has also observed
\nthat the question whether the first respondent\/writ petitioner had resigned, has
\ngot to be enquired into by the competent authority, the Chief Educational
\nOfficer, Dindigul in this case as the appellant’s school is a Higher Secondary
\nSchool and that till the Chief Educational Officer determines the issue, there
\nis no question of appointing any substitute in the place of the first
\nrespondent\/writ petitioner.\n<\/p>\n
\t\t7. The learned counsel for the appellant contended that the
\nappellant’s school being a minority school did have utmost independence in the
\nmatter of appointment and removal of teachers and that Rule 17-A of the Tamil
\nNadu Recognised Private Schools (Regulation) Rules, 1974 could not provide any
\nrestriction on such right of the minority institution. The learned counsel for
\nthe appellant further contended that the first respondent\/writ petitioner could
\nnot be granted the relief even assuming that the said rule was applicable to
\nminority schools, since: (i) her appointment was for a specified time made
\ntemporarily as a stop gap arrangement till regular appointment was made; and\n<\/p>\n
(ii) she had resigned the job.\n<\/p>\n
\t\t8. We are not in a position to countenance the above said argument
\nadvanced on behalf of the appellant. We are constrained to point out the
\ncontradictory stands taken by the appellant. In fact, before the first
\nrespondent\/writ petitioner approached this Court by filing the writ petition,
\nthe appellant was holding out that the post of Junior Grade Physical Education
\nTeacher in the appellant’s school fell vacant due to the resignation of the
\nfirst respondent\/writ petitioner on 31.05.2007. Even the appointment order said
\nto have been issued in favour of Selvi.J.Jenitta on 04.06.2007 contains the
\nfollowing statement meaning that the post fell vacant due to the resignation of
\nthe first respondent\/writ petitioner on 31.05.2007:-\n<\/p>\n
\t“vkJ gs;spapy; clw;fy;tp Mrphpiaahf gzpg[hpe;j jpUkjp blh.rpy;th
\ngh;dhz;Blh vd;gth; 31.05.2007 gpw;gfy; uh$pehkh bra;jjpdhy; Vw;gl;l fhyp
\ngzpaplj;jpy; bry;tp $h.b$dpl;lh vd;gtiu clw;fy;;tp Mrphpiaahf jFjpfhd;
\ngUtj;jpduhf 04.06.2007 fhiy Kjy; fhyKiw Cjpa tpfpjj;jpy; epakdk;
\nbra;ag;gLfpwhh;.””\n<\/p>\n
\tEven in the communication addressed on 14.06.2007 for the approval of the
\nappointment of Selvi.J.Jenitta, it had been stated that the said post fell
\nvacant due to the resignation of the first respondent\/writ petitioner on
\n31.05.2007. The very same point was reiterated in the subsequent communication
\ndated 20.06.2007 addressed to the District Educational Officer. Only under such
\ncircumstances, the first respondent\/writ petitioner has come forward with the
\nwrit petition taking a definite stand that she never tendered any resignation.
\nThe further stand taken by the appellant is to the effect that though no
\nseparate letter of resignation was given by the first respondent\/writ
\npetitioner, she affixed her signature in the note made in the Service Register
\nfor that purpose and that the same is enough to show that the first
\nrespondent\/writ petitioner resigned her job on her own volition. The absence of
\nany separate resignation letter obtained from the first respondent\/writ
\npetitioner will probabalise her case that she had not resigned her job on her
\nown volition. However, in view of the specific provision found in Rule 17-A of
\nthe Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, any
\nresignation of the teachers of the aided schools has got to be approved by the
\nChief Educational Officer in case of High Schools, Higher Secondary Schools and
\nTeachers’ Training Institutes.\n<\/p>\n
\t\t9. The said rule as per the judgment of this Court in K.Chettiappan
\nVs. The Chief Educational Officer, Ramanathapuram and others reported in 2000
\nWrit L.R.300, cited above is applicable to the minority aided schools as well.
\nThe said safeguard has been provided in order to prevent the teachers from being
\nforced to sign ante dated resignation letters or blank sheets containing their
\nsignatures being obtained at the time of appointment to be used later on as a
\nletter of resignation. For the sake of convenience, Clause (4) of Rule 17-A of
\nthe Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 is extracted
\nhere under:\n<\/p>\n
\t\t“No teacher or other person employed in a private school shall be
\nrelieved from service on the strength of resignation letter. The resignation
\nletter shall, on receipt, be sent to the Chief Educational Officer concerned in
\nrespect of teacher and other persons employed in High Schools, Higher Secondary
\nSchools and Teachers’ Training Institutes and to the District Educational
\nOfficer concerned in respect of teacher and other person employed in a Pre-
\nprimary, Primary and Middle Schools. The Chief Educational Officer or District
\nEducational Officer concerned shall, in turn, get the confirmation of the
\nteacher or other person employed, as the case may be, as to the fact of such
\nresignation and then accord his approval to relieve the teacher or other person
\nemployed, as the case may be, from service.”\n<\/p>\n
\t\tA perusal of the above said rule reveals that the management does
\nnot have the power to relieve a teacher on the strength of alleged resignation
\nwithout and before ever the competent authority (Chief Educational Officer)
\naccords approval. In this case admittedly no approval was obtained before
\nrelieving the first respondent\/writ petitioner. It is obvious that the
\nmanagement has acted disregarding the above mentioned mandatory provision. Thus
\nthe act of the management in disengaging the writ petitioner as Physical
\nEducation Teacher on the strength of alleged resignation, stands vitiated.\n<\/p>\n
\t\t10. The initial stand of the appellant Management was that the post
\nof Physical Education Teacher fell vacant consequent to the resignation of the
\nsaid post by the first respondent\/writ petitioner on 31.05.2007. Only during the
\npendency of the writ petition, the appellant Management shifted its stand to
\nraise a new contention that the first respondent\/writ petitioner was appointed
\npurely on temporary basis, as a stop gap arrangement, till a regular appointment
\nwas made. To substantiate the said stand, the appellant seems to have obtained a
\nletter dated “Nil” from the first respondent\/writ petitioner to the effect that
\nshe agreed to work for a period of one year from 02.06.2006 to 31.05.2007. The
\nsaid letter, by no stretch of imagination, can be construed as a valid piece of
\nevidence to show that the appointment was made purely on   a temporary basis, as
\na stop gap arrangement, till a regular appointment was made. The contents of the
\nvery short letter in the vernacular language is as under:\n<\/p>\n
\t“jA;fs; eph;thfj;jpw;Fl;gl;l gs;spapy; clw;fy;tp Mrphpiaahf Xuhz;L
\ngzpg[hpa 2.6.06 Kjy; 31.5.07 Koa gzpg[hpa xg;g[f;bfhs;fpBwd;.  jA;fs;
\neph;thfj;jpd; xGA;Ff;F fl;Lg;gl;L elg;Bgd; vd;W cWjp TWfpBwd;.”\n<\/p>\n
\tThis can, at best, be interpreted to mean that the first respondent\/writ
\npetitioner gave an undertaking to work in the said school at least for a period
\nof one year. When the contents of the said letter is considered in the light of
\nthe earlier stand taken by the appellant that the first respondent\/writ
\npetitioner resigned her job on 31.05.2007, one can without any hesitation arrive
\nat a conclusion that the said letter is now sought to be used to support the
\nstand of the appellant that the appointment of the first respondent\/writ
\npetitioner was on a temporary basis which is otherwise untenable.\n<\/p>\n
\t\t11. After taking into consideration all the above said facts, we are
\nof the considered view that the new stand taken by the appellant Management as
\nif the first respondent\/writ petitioner had been appointed purely on temporary
\nbasis for a period of one year alone cannot be countenanced and that the learned
\nSingle Judge has rightly negatived such a stand taken by the appellant.\n<\/p>\n
\t\t12. The learned counsel for the appellant contended further that the
\nlearned Single Judge should not have directed the appellant to relieve
\nSelvi.J.Jenitta without even hearing her. In paragraph-8, we have clearly
\nobserved that the act of the Management in disengaging the writ petitioner as
\nPhysical Education Teacher without getting the approval of the Chief Educational
\nOfficer stands vitiated, meaning that the post shall not fall vacant unless the
\npresent incumbent is relieved in accordance with the Rule 17-A. The learned
\nSingle Judge has rightly observed that appointing a substitute for the writ
\npetitioner would not arise till the matter is decided by the Chief Educational
\nOfficer. In fact the learned Single Judge has not expressed any final opinion
\nregarding the alleged resignation.\n<\/p>\n
\t\t13. In view of the above said facts and circumstances of the case,
\nwe do not think that the learned Single Judge has committed any error in coming
\nto the conclusion that the question of alleged resignation of the post of
\nPhysical Education Teacher by the first respondent\/writ petitioner has got to be
\nenquired into by the Chief Educational Officer and that till such a decision is
\nmade by the Chief Educational Officer, there is no question of appointing any
\nsubstitute in the place of the first respondent\/writ petitioner. We see no
\nreason to interfere with the well considered order of the learned Single Judge.
\nThere is no merit in the Writ Appeal and hence, the same deserves to be
\ndismissed.\n<\/p>\n
\t\t14. In the result, this Writ Appeal is dismissed. However, there
\nshall be no order as to payment of costs. Consequently, connected M.P.No.2 of
\n2007 is also dismissed.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The District Educational Officer,
\n  Dindigul.\n<\/p>\n
2.The Chief Educational Officer,
\n  Dindigul.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Correspondent vs Silva Fernando on 9 October, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09\/10\/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR W.A.(MD)No.476 of 2007 and M.P(MD).No.2 of 2007 The Correspondent, Our Lady of Lourdes Girls Higher Secondary School, Dindigul. … Appellant Vs. 1.Silva […]<\/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-62392","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Correspondent vs Silva Fernando on 9 October, 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-correspondent-vs-silva-fernando-on-9-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Correspondent vs Silva Fernando on 9 October, 2007 - 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