The Chief Educational OfficerUdhagamandalamThe Nilgiris District v. B. Meenakshi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 01.12.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE R.SUDHAKARW.A. NO. 1150 OF 2008The Chief Educational OfficerUdhagamandalamThe Nilgiris District. ..Appellant/ 1st Respondent- Vs -1. B. Meenakshi ..1st Respondent / Petitioner2. Sri Sarguru Tribal High School rep. by its Secretary Coonoor, The Nilgiris District. ..2ndRespondent/2nd RespondentWrit Appeal filed against the order dated 8th April, 2008, passedby learned single Judge in W.P. No.6380 of 2007 praying to issue awrit of certiorarified mandamus to call for the records relating tothe order in Na.Ka.No.2614/Aa5/2006 dated. 16.11.2006 and theconsequential order in Na.Ka.No.2614/Aa5/2006, dated. 11.12.2006passed by the first respondent and quash the same and direct therespondents to confer all the consequential benefits from 11.5.2004and for further orders.For Appellant: Ms. Dakshayani Reddy, GAFor Respondents: Mr. C.Selvaraju, Senior Counsel, for Mr.S.Mani for R-1JUDGMENTS.J.MUKHOPADHAYA, J.The respondent, B.Meenakshi, Lab Assistant of Sri Sarguru TribalHigh School, Coonoor (hereinafter referred to as 'Coonoor School')was transferred along with the post in one N.S.Iyya Memorial HigherSecondary School, Katery Dam (hereinafter referred to as 'Katery DamSchool') by proceeding dated 11th May, 2004. The Headmaster of theCoonoor School requested to relieve her against which she preferred awrit petition, which having remitted, the said order was not giveneffect. Her representation having not allowed, by proceeding dated16th Nov., 2006, she was asked to join the Katery Dam School followedby proceeding dated 11th Dec., 2006. The aforesaid two proceedingsdated 16th Nov., 2006 and 11th Dec., 2006, were challenged by the 1strespondent in the writ petition, which having allowed by learnedsingle Judge by judgment dated 8th April, 2008, the Chief EducationalOfficer, Udhagamandalam, Nilgiris, has preferred the present appeal. https://hcservices.ecourts.gov.in/hcservices/

2. Learned single Judge observed that the impugned order oftransfer of respondent along with the post is based on totalmisconception that there is no laboratory in the Coonoor School andfor that there was no requirement to transfer the post along with the1st respondent. Such finding has been assailed by the appellant.3. The only question that arise for consideration in this case is:-“Whether the post of Laboratory Assistant along withthe 1st respondent was rightly transferred to theother school or she was transferred on misconceptionthat there is no requirement of such post in theCoonoor School.”4. Learned counsel appearing on behalf of the appellant broughtto the notice of the Court relevant facts to suggest that there wasno need for the post of Laboratory Assistant in the Coonoor School, aschool of Secondary School Leaving Certificate standard (SSLC). Onthe other hand, the Katery Dam School being a higher secondary school(+2 level), it requires a Laboratory and a post of LaboratoryAssistant and on the basis of such need of post in the Katery DamSchool, the impugned proceeding of transfer of the 1st respondentalong with the post was made.It was further contended on behalf of the appellant that thecompetent authority had jurisdiction to abolish a post or to transfera post from one school to another school taking into considerationthe need of one or other school and till such transfer of post isshown to be arbitrary, without application of mind or perverse, theCourt should not interfere with such order of transfer.On the other hand, according to the counsel for the 1strespondent, there was a Laboratory in the Coonoor School, which isstill existing and, therefore, there was no occasion to transfer thepost of Lab Assistant from Coonoor School to Katery Dam School.Learned counsel also placed reliance on different proceedings andfacts in support of his claim.5. We have heard the learned counsel for the parties and noticedtheir rival contentions. From the submissions made by the partiesand records, the following facts emerge :-Previously Secondary Schools used to grant certificate oncompletion of 11th standard. After introduction of the HigherSecondary (+2 level), SSLC level schools are required to teach onlyupto 10th standard, whereinafter, SSLC examination is conducted andstudents who pass are granted certificate. In the higher secondaryschools (+2 level), on the other hand, students are required to studynot only upto 10th standard, but additional two standards, i.e., 11thand 12th standard.It was brought to the notice of the Court by the counsel for theState that previously as per old SSLC system, when students used toread upto 11th standard, laboratory was essential for conducting https://hcservices.ecourts.gov.in/hcservices/ practical test and examination. For the said reason, the post oflaboratory assistant, as per rule, used to be sanctioned forsecondary level schools, which used to teach upto 11th standard.After the new system, the students are to read upto 10th standard forappearing in SSLC examination. For such 10th standard schools noseparate laboratory is required nor a post of Laboratory Assistant isrequired. But in the higher secondary schools (+2 level) suchrequirement is there, and for such school a laboratory is a must andthere the post of laboratory assistant is sanctioned. 6. Counsel for the State relied on Form-I of the Tamil NaduRecognised Private Schools (Regulation) Rules, 1974 (hereinafterreferred to as 'Rules'), which relates to application for opening'Pre-Primary School'; Form-I-A relating to 'High School' and Form-1-Brelating to 'Higher Secondary School'. In the said Form, while nocolumn has been provided to show whether any laboratory is attachedwith the school for opening Pre-Primary School and High School, inForm-I-B, for opening a Higher Secondary School it is to be shownwhether there is any laboratory or not.It is informed that in the High School practical tests areconducted for students upto 10th level by lab boys and the teachers,whereas in the Higher Secondary Schools (+2 level) such practicalsare conducted by Lab Assistants.It was submitted that the Coonoor School was previously teachingupto 11th standard under the old system of secondary schoolexamination. At that time, there was a requirement of the post ofLab Assistant. Since 1980, the new system having come into effect,the Coonoor School is teaching only upto 10th standard to enable thestudents to appear in the SSLC examination. On the other hand, asper the norms, the Katery Dam School being a higher secondary school(+2 level), now requires the post of Laboratory Assistant. Theaforesaid fact has not been disputed by learned counsel appearing onbehalf of the 1st respondent.It was contended that as the 1st respondent was functioning asLaboratory Assistant, after the new system, as there is no suchrequirement, the post could have been abolished and, thereby, the 1strespondent could have been retrenched from service. But, there beinga need in the other school, i.e., Katery Dam School, for the post ofLaboratory Assistant, it was decided to transfer the post along withthe incumbent, i.e., the 1st respondent.Learned counsel for the appellant rightly pointed out that theaforesaid aspect has not been noticed nor considered by learnedsingle Judge while delivering the impugned judgment dated 8th April,2008.7. Learned counsel for the 1st respondent submitted that exceptthe State Government, the Director has no jurisdiction to decide asto whether a post has to be abolished or to be transferred. Thiswas refuted by the counsel for the appellant, who rightly placedreliance on Rule 15 (1), wherein the Director has been empowered tosanction a post, which means the Director has the power to abolish ortransfer a post. https://hcservices.ecourts.gov.in/hcservices/

8. From the records it will be evident that after the new system,as the post of Laboratory Assistant was not required for CoonoorSchool, the Accountant General made audit objections with regard tothe post of Laboratory Assistant in the Coonoor School. TheSecretary, Coonoor School, by letter dated 18th Sept., 2003, whileintimated the aforesaid audit objection, informed that in absence ofa Laboratory, the post of Laboratory Assistant with the person may berecalled and the school will not claim the post. The Director ofSchool Education, by letter dated 8th Nov., 2003, forwarded the sameto the District Educational Officer, Coonoor, who noticed that theLaboratory Assistant post was sanctioned while Coonoor School wasfunctioning under the old SSLC pattern and the 1st respondent wasappointed as Laboratory Attender on 10th Aug., 1970. Now the saidpost is not needed for the Coonoor School and there is an auditobjection and on the other hand the Katery Dam School needed suchpost. For the said reason, by proceeding dated 11th March, 2004, theDirector of School Education, Chennai, taking into consideration thatfixation is based on student strength, ordered to transfer the postof Laboratory Assistant from Coonoor School to Katery Dam Schoolalong with the 1st respondent.9. We have noticed that the Director has the power to sanction apost under Rule 15 (1) and, thereby, we hold that the said Directoralso has power to create a post in the other school, i.e., Katery DamSchool by transfer of one post from a school where no such post wasneeded. Based on the order of the Director, by proceeding dated 11thMay, 2004 the Chief Educational Officer, Udhagamandalam, Nilgiris,requested the Headmaster to relieve the 1st respondent to join theKatery Dam School along with the post.10. The order dated 11th March, 2004, issued by the Directortransferring the post along with the incumbent was never challengedby the 1st respondent before any court of law or before any authority.The consequential order dated 11th May, 2004, was challenged on theground that no show cause notice was given to Coonoor School beforetransferring the post of Laboratory Assistant from the said post.This Court, by order dated 2nd Dec., 2005 in W.P. No.22218/04,remitted the matter to the respondent with direction to theauthorities to give a show cause notice to the authorities of theCoonoor School as to whether the said school has a laboratory at alland if not, why sanctioned post should not be transferred to anotherschool having a laboratory. Pursuant to the Court's order, itappears that a show cause notice was given to the Coonoor School.The Secretary of the Coonoor School, in reply, specifically informedthat as per Notification in the Tamil Nadu District Gazette, Chennaiin Na.Ka. No.16-9/94-95/594 dated Jan., 2001, the post of LaboratoryAssistant in the school is in excess and the same has been notified.For the said reason, the Coonoor School, by its letter dated 2ndMarch, 2002, followed by letter dated 18th Sept., 2003, have alreadyinformed that the above excess Laboratory Assistant post has beenhanded over to the Government. It was further informed that as perproceeding in Na. Ka. No.2620/A2/04 dated 21st June, 2004, the Schoolhas discharged the 1st respondent from work from February, 2004. https://hcservices.ecourts.gov.in/hcservices/

11. In view of the aforesaid reply submitted by the CoonoorSchool dated 3rd Oct., 2006, the Chief Educational Officer,Udhagamandalam, issued the impugned proceeding dated 16th Nov., 2006,followed by proceeding dated 11th Dec., 2006 transferring the postalong with the 1st respondent and directed the 1st respondent to jointhe post.The aforesaid factual aspect, as noticed by us, has not beentaken into consideration by learned single Judge. The standards inthe school has not been noticed nor it has been noticed that theschool has categorically stated that the post of Laboratory Assistantis in excess; the Government has already notified the post as excess;the Accountant General, in its audit, has made objection and thus,there was no occasion for the 1st respondent to continue as LaboratoryAssistant in the Coonoor School.We have noticed that the 1st respondent has not challenged theproceeding of the Director of School Education dated 11th March, 2004.The earlier Gazette notification of 2001 by which the post was takenaway from the Coonoor School has not been disputed by the 1strespondent; that the School do not require the post has not beendisputed and that the 1st respondent was earlier discharged from theschool is also not in dispute. In this background, we are of theview that the 1st respondent was not entitled to get any relief fromthe Court. If the 1st respondent does not join the post in thetransferred school, then she will have to lose the job in absence ofany post in the Coonoor School. We, accordingly, set aside the impugned order dated 8th April,2008, passed by learned single Judge, allow the 1st respondent to jointhe post in the transferred school within a fortnight. The writappeal is allowed. But there shall be no order as to costs. GLN Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1) The Chief Educational Officer Udhagamandalam The Nilgiris District.2) The Secretary, Sri Sarguru Tribal High School, Coonoor, The Nilgiris District.1 cc To Mr.S.Mani, Advocate, SR.650931 cc To The Government Pleader, SR.65153 JUDGMENT IN W.A. NO. 1150 OF 2008CKN (CO)SS (08.12.2009)