K.Subramani v. 0 006.2. The Chief Educational Officer Dindigul.3. The District Educational Officer Palani.4

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.7.2007CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIWrit Petition No.14605 of 2000K.Subramani..Petitioner Vs.1. The Joint Director of School Education Higher Secondary College Road, Madras 600 006.2. The Chief Educational Officer Dindigul.3. The District Educational Officer Palani.4. Guruvappa Higher Secondary School rep. by Secretary Neikarapatti, Palani Taluk Dindigul District...Respondent-----Petition under Article 226 of the Constitution of Indiapraying for a writ of Certiorarified Mandamus for the relief asstated therein.-----For Petitioner :Mr.D.KrishnakumarFor Respondents 1 to 3:Mr.A.Vijayakumar Government Advocate (Edn.)For Respondent No. 4: Mr. S. Saravanan-----O R D E RThe writ petition is filed challenging the order of thesecond respondent dated 19.12.1996 and also the consequentialorder of the third respondent dated 22.3.1997, apart from theorder of the first respondent dated 19.6.2000. https://hcservices.ecourts.gov.in/hcservices/

2.1. The petitioner has completed his M.Sc. Degree inChemistry and also completed M.Ed Degree and fully qualified forappointment to the post of Post Graduate Teacher in highersecondary school. He has also registered his name in theEmployment Exchange in the year 1990. In the year 1995, avacancy has arisen in the fourth respondent school due to theresignation of one Prabakaran, who was working as ChemistryTeacher. The said Prabakaran is stated to have been relievedfrom the fourth respondent school on 22.8.1995 and got appointedin the Government Higher Secondary School. 2.2. On receipt of the communication from the fourthrespondent that his name has been forwarded by the EmploymentExchange for the post of a Teacher in Chemistry, the petitionerhas appeared for an interview on 19.9.1995 and thereafter, he wasselected and joined duty on 20.9.1995 as per the appointmentorder issued by the fourth respondent, an aided non minorityschool governed by the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973 (in short 'the Act') and Tamil NaduRecognised Private Schools (Regulation) Rules, 1974 (in short'the Rules').2.3. The fourth respondent appears to have sentcommunication to the third respondent, viz. District EducationalOfficer for approving the appointment of the petitioner asChemistry Teacher in their school from 20.9.1995. The thirdrespondent appears to have directed the fourth respondent to getpermission from the second respondent regarding the relieving ofthe previous teacher Prabakaran as Chemistry Teacher. It appearsthat the fourth respondent has informed the third respondent thatthe said Prabakaran has been relieved from 22.8.1995. 2.4. The fourth respondent, by representation dated28.8.1995, sought permission of the second respondent forrelieving the said Prabakaran from the date actually he wasrelieved, viz. 22.8.1995. The second respondent, in thecommunication dated 15.2.1996 informed the fourth respondent thatthe said Prabakaran was deemed to have been relieved from servicewith effect from 22.8.1995. 2.5. That apart, the fourth respondent also soughtpermission of the second respondent for appointing ChemistryTeacher in the vacancy caused by relieving of the saidPrabakaran. But, the second respondent, by the impugnedproceedings dated 19.12.1996, permitted the fourth respondent tofill up the vacancy of the Chemistry Teacher with effect from thesaid date of that order, viz. 19.12.1996. https://hcservices.ecourts.gov.in/hcservices/

2.6. Aggrieved by the said order, the petitioner has filedan appeal before the first respondent on 29.9.1999 to grantapproval to his appointment from 20.9.1995. Ultimately, the thirdrespondent, by order dated 22.3.1997, has approved theappointment of the petitioner as Chemistry Teacher in the fourthrespondent school with effect from 19.12.1996. 2.7. The petitioner challenges the said impugned ordermainly on the ground that when the previous incumbent viz.Prabakaran, Chemistry Teacher, has resigned from the fourthrespondent school on 22.8.1995 and was relieved immediately andhe was appointed in the said place, which is within thesanctioned strength, on 20.9.1995, he is entitled for approval ofhis appointment from the said date. 3. According to the learned counsel for the petitioner, evenassuming that the resignation of the previous incumbent, viz.Prabakaran was accepted by the competent authority under theRules, his resignation was approved by the authority on 15.2.1996itself and therefore, the petitioner's appointment ought to havebeen approved from 15.2.1996, viz. the date when the resignationof the previous incumbent was accepted by the competent authorityas per the Rules. 4.1. On the other hand, the learned Government Advocatewould submit that the very appointment of the petitioner isagainst the provisions of the Rules. He would contend that whenPrabakaran has resigned by his letter of resignation dated22.8.1995, as per Rule 17A(4) of the Rules, certain procedureought to be followed and ultimately only after the authorityconfirming that the resignation of the concerned teacher was madevoluntarily, the order of approval of resignation will be passedby the competent authority. Therefore, even if a teacher resignson an earlier date, the resignation will be effective from thedate approval by the competent authority, as per Rule 15(4) ofthe Act. 4.2. In the present case, even though the resignation of theprevious incumbent was approved by the authorities on 15.2.1996,there is absolutely no basis to say that the petitioner'sappointment should be approved from the date of his originalappointment viz. 20.9.1995. He would also submit that as perRule 15(4) of the Rules, the fourth respondent has resorted toappoint the petitioner, who is not a teacher working in the sameschool or a non teaching staff in the same school, and it isdeemed to be an appointment by way of direct recruitment andprior permission has to be obtained for such appointment.However, the fourth respondent has not taken any step for https://hcservices.ecourts.gov.in/hcservices/ obtaining permission for appointing the petitioner, as per theRules. Therefore, the appointment of the petitioner itself isnot valid in law. To substantiate the above contention, herelied upon the decision in The Secretary, Saliar Mahajana HigherSecondary Schools v. G.Subburaj [2005 (1) CTC 8].5. I have heard the learned counsel for petitioner as wellas the learned Government Advocate and perused the records.6.1. It is not in dispute that the previous incumbentPrabakaran, who was a Teacher in Chemistry in the fourthrespondent school, had submitted his resignation on 22.8.1995 andthe same would be operative as per law only from the date ofapproval by the educational authorities. In the present case,the resignation of the said Prabakaran was approved on 15.2.1996.6.2. The procedure to be followed in respect of grantingapproval for such resignation is contemplated under Rule 17A(4)of the Rules, which reads as follows:17A.-Educational agencies not to obtain compulsorilyresignation letter either at the time of appointment orsubsequently from the employees in their school.(1)...(2)...(3)...(4) No teacher or other person employed in aprivate school shall be relieved from service on thestrength of resignation letter. The resignation lettershall, on receipt, be sent to the Chief EducationalOfficer concerned in respect of teacher and otherpersons employed in High Schools, Higher SecondarySchools and Teachers' Training Institutes and to theDistrict Educational Officer concerned in respect ofteacher and other person employed in a Pre-primary,Primary and Middle Schools. The Chief EducationalOfficer or District Educational Officer concernedshall, in turn, get the confirmation of the teacher orother person employed, as the case may be, as to thefact of such resignation and then accord his approvalto relieve the teacher or other person employed, as thecase may be, from service...."6.3. In the instant case, the time taken by the authorities,as contemplated under the Rules, from 22.8.1995 to 15.2.1996cannot be taken advantage by the petitioner. Therefore, it isnot correct for the petitioner to state that his appointmentshould be approved from 22.8.1995. As per the construction of https://hcservices.ecourts.gov.in/hcservices/ the said rule, the vacancy in the fourth respondent school isdeemed to have occurred only on the date of approval viz.15.2.1996 and it cannot be presumed that the appointment of thepetitioner was made even before the said vacancy arose. 6.4. It is true that the Rule 15(4) contemplates promotionsand appointments in respect of various teachers under the aidedprivate schools. The Rule states that in cases of vacancy whichmay arise in an aided private school, such vacancy has to befilled up in the following manner:(i) from among the qualified teachers in the sameschool;(ii) if such qualified teachers are not available inthe same school, from any other person who is employedin the same school who is qualified to be appointed asa teacher;(iii) if above said two categories of candidates arenot available, the appointments can be made from theteachers from any other school, which means that thoseteachers who are declared surplus by the Government;and(iv) in the absence of said third category, it is opento the school to go for direct recruitment.It also contemplates that the appointment in respect ofcategories (iii) and (iv), viz. appointment of teachers fromother schools and direct recruitment, shall be made by the SchoolCommittee only after obtaining prior permission of the competentauthorities as per the Rules.6.5. Rule 15(4) of the Rules reads as under:Qualifications, conditions of service of teachers andother persons.-...(4)(i) Promotion shall be made on grounds of merit andability, seniority being considered only when merit andability are approximately equal.(ii) appointments to the various categories of teachersshall be made by the following methods:-(i) Promotion from among the qualified teachers inthat school.(ii) If no qualified and suitable candidate isavailable by method (i) above,- https://hcservices.ecourts.gov.in/hcservices/ (a) Appointment of other persons employed in thatschool, provided they are fully qualified to hold thepost of teachers;(b) Appointment of teachers from any other school;(c) Direct recruitment.In the case of appointment from any other schoolor by direct recruitment, the school committee shallobtain the prior permission of the District EducationalOfficer in respect of Pre-primary, Primary and MiddleSchool and that of the Chief Educational Officer inrespect of High Schools and Higher Secondary Schools,Teachers' Training Institutions setting out the reasonsfor such appointment. In respect of corporate bodyrunning more than one school, the schools under thatbody shall be treated as one unit for purpose of thisrule...."6.6. While considering the provisions of the said Rule, aDivision Bench in The Secretary, Saliar Mahajana Higher SecondarySchools v. G.Subburaj [2005 (1) CTC 8], has clearly held that anyappointment made in violation of Rule 15(4) will make suchappointment invalid in the eye of law. The operative portion ofthe judgment of the factual situation of the said case reads asfollows:"A perusal of the above Rule shows that appointment ofoutsiders can only be made if no qualified and suitableinternal teacher is available. In other words, sub-clause (ii) of Rule 15(4) will only apply when noteacher falling in the category of sub-clause (i) ofRule 15(4) is available. It is undisputed that therewere teachers available as specified in sub-clause (i)of Rule 15(4) i.e. internal candidates. Hence theappointment of the first respondent who was an outsiderwas clearly illegal. It was rightly set aside by theJoint Director of School Education by order dated17.12.2001 and that order has been rightly confirmed bythe learned single Judge. Admittedly, during theperiod when the first respondent was working i.e. from11.8.1997 to October 2004, he has been paid aconsolidated salary of Rs.1050/- p.m. (later enhancedto Rs.1,250/- p.m.) from the donations received by theManagement. The learned single Judge has directed thatthe first respondent should be paid salary of a regular https://hcservices.ecourts.gov.in/hcservices/ teacher for the period for which he had worked i.e.from 11.8.1997. We are of the opinion that thisdirection of the learned single Judge for payment ofsalary as a regular teacher for the period for whichthe first respondent worked, cannot be sustained.Admittedly, the first respondent was not a legallyappointed teacher. He had been appointed illegally inviolation of Rule 15(4) of the Rules. Hence, we cannotsee how he can be granted salary of a regular teacher."6.7. Applying the judgment of the Division Bench citedabove to the instant case, I find there is substance in thecontention of the learned Government Advocate about the validityof the appointment of the petitioner. However, since theeducational authorities themselves have approved the appointmentof the petitioner by the impugned order dated 22.3.1997 witheffect from 19.12.1996, I do not think that this is a fit case toconsider about the validity or otherwise of the petitioner'sappointment, by applying the judgment of the Division Bench citedsupra. Further, in view of the categoric stand taken by therespondents that the petitioner's appointment in the fourthrespondent school as a Chemistry Teacher stands approved witheffect from 19.12.1996, I am of the view that impugned order doesnot require to be interfered with. 7.1. However, Mr.Krishna Kumar, learned counsel for thepetitioner would contend that even taking into consideration thatthe vacancy in the fourth respondent school has legally arisen on15.2.1996, granting approval to the appointment of the petitionerwith effect from 19.12.1996 is an error, which, according to him,may be a technical error also. 7.2. As narrated above, as per Rule 17A, on the date ofapproval of resignation of the previous incumbent Prabakaran,viz. 15.2.1996, there is certainly a vacancy in the fourthrespondent school and in such event, there is no bar for thefourth respondent to fill up the said vacancy in accordance withthe provisions of Rule 15. In the present case, inasmuch as theeducational authorities have approved the appointment with effectfrom 19.12.1996, I am of the view that while upholding thevalidity of the impugned order, the petitioner and the fourthrespondent must be permitted to make a representation to theeducational authorities, viz. 1 to 3 bringing out the peculiarsituation viz. the vacancy has arisen in law on 15.2.1996itself, but the approval has been given on 19.2.1996 only, whilethe fact remains that the application for approval was made evenbefore 15.12.1996. If any such representation is made by thepetitioner and the fourth respondent, it is open to respondents 1to 3 to consider the same in accordance with law and passappropriate orders. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is disposed of in the above terms.kplSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Joint Director of School Education Higher Secondary College Road, Madras 600 006.2. The Chief Educational Officer Dindigul.3. The District Educational Officer Palani.+ one cc to Mr. D. Krishnakumar, Advocate sr no. 43799+ one cc to the Government Pleader sr no. 43693tm(co)nm(26.07.07)W.P.No.14605 of 2000.