V.Ponnalagu v. The Commissioner of Adi Dravidar and Tribal Welfare Chepauk, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.14209 OF 2007V.Ponnalagu...Petitioner Vs.1. The Commissioner of Adi Dravidar and Tribal Welfare Chepauk, Chennai – 5.2. The District Adi Dravidar and Tribal Welfare Officer Madurai...RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India for issuance of writ of Mandamus by way oftransfer of O.A.No.1212 of 2003, to call for the connected records inNa.Ka.No.95379/97/ADW-3, dated 19.03.2003 of the second respondentand set-aside the same and direct the respondents to permit thepetitioner to continue as Secondary Grade Teacher and regularise herservice in the post of Secondary Grade Teacher with all consequentialbenefits.For Petitioner:Mr.G.ElanchezhianFor Respondents :Mr.P.Muthu Kumar (R-1 to R-2)Government AdvocateO R D E RThe Original Application in O.A.No.1212 of 2003 before theTamil Nadu Administrative Tribunal (hereinafter referred to as "theTribunal") is now Writ Petition in W.P.No.14209 of 2007 before thisCourt.2. Heard Mr.G.Elanchezhian, learned counsel for thepetitioner and Mr.P.Muthu Kumar, learned Government Advocate for therespondents.3. The petitioner joined in the Adi Dravidar and TribalWelfare Department as a Typist on 10.04.1987. She possessed B.A., https://hcservices.ecourts.gov.in/hcservices/ B.Ed., qualification. She was appointed as a Secondary Grade Teacherbased on G.O.Ms.No.63, Adi Dravidar and Tribal Welfare Department,dated 01.04.1997 by the second respondent. However, after sevenyears, the second respondent passed the impugned order dated19.03.2003 cancelling the appointment and reverting the petitioner asTypist.4. Aggrieved by that, the petitioner filed OriginalApplication in O.A.No.1212 of 2003 (W.P.No.14209 of 2007) to quashthe aforesaid order dated 19.03.2003 of the second respondent and fora consequential direction to continue her as a Secondary GradeTeacher by regularising the service with all consequential benefits.5. The learned counsel for the petitioner submits that theimpugned order was passed based on the order of the first respondentdated 11.07.2002. However the said order was not furnished to thepetitioner. The petitioner was not heard before passing the orderdated 11.07.2002 / 19.03.2003. The learned counsel submits thattherefore the impugned order was passed in violation of principles ofnatural justice. In this regard, the petitioner states that when shewas posted as Secondary Grade Teacher from the post of Typist, shewas posted to higher scale of pay and received higher benefits.Hence, when she was deprived of certain benefits including thestatus, she should have been heard.6. The learned counsel for the petitioner submits that hadshe been heard before passing the adverse order, she could havepointed out that her appointment as Secondary Grade Teacher was interms of G.O.Ms.No.63, Adi Dravidar and Tribal Welfare Department,dated 01.04.1997. The learned counsel further submits the appointmentwas made pursuant to the recommendations of the second respondent inhis letter dated 18.08.1997 to the first respondent and it is alsofurther stated that in the order appointing the petitioner asSecondary Grade Teacher, it is made clear that the appointment wasmade as per G.O.Ms.No.63, Adi Dravidar and Tribal Welfare Department,dated 01.04.1997.7. On the other hand, the learned Government Advocate seeksto sustain the order reverting the petitioner to the originalposition and relies on the counter affidavit filed by the secondrespondent, in this regard.8. I have considered the submissions made by either side.On the face of it, the impugned order is arbitrary and violative ofArticle 14 of the Constitution of India, since the petitioner was notheard before cancelling the order appointing her as Secondary GradeTeacher. It is well settled that before passing an adverse orderresulting in civil consequences, the concerned person should be heardbefore passing such an order. https://hcservices.ecourts.gov.in/hcservices/

9. Furthermore, the appointment of the petitioner asSecondary Grade Teacher was in terms of G.O.Ms.No.63, Adi Dravidarand Tribal Welfare Department, dated 01.04.1997. The said G.O isextracted hereunder:-"MizMjp jpuhtplh; kw;Wk; gH';Foapdh; eyj;Jiw gs;spfspy; ,ilepiy Mrphpah;gzpapl';fs; fhypahf cs;sJ vd;Wk; mg;gzpaplj;ij epug;g ,ilepiy Mrphpah; jFjp bgw;wegh;fs; ntiytha;g;gfj;jpy; fhj;jpUg;nghh; gl;oaypy; ,y;yhjjhy; ,ilepiy Mrphpah;gzpapl';fs; fhypahf itf;fg;gLtijj; jtph;f;f Mjp jpuhtplh; kw;Wk gH';Foapdh; gl;ljhhpMrphpah;fisf; bfhz;L ,ilepiy Mrphpah; gzpapl';fis epug;gyhk;. Vd;W Mjp jpuhtplh;kw;Wk; gH';Foapdh; ey ,af;Feh; nfhhpa[s;shh;/ mz;ikapy; brd;idapy; Ma;t[ nkw;bfhz;lMjp jpuhtplh; kw;Wk; gH';Foapdh; njrpa Mizaj;jpd; jiyth; Mjp jpuhtplh; kw;Wk;gH';Foapdh; gpd;dilitf; fLikahff; rhof; brd;Ws;shh;/ Fwpg;ghf ,ilepiy Mrphpah;epakdj;jpYs;s gpd;dilitr; Rl;of;fhl;o mij rPh; bra;tjw;F tHpKiwfis nkw;bfhs;tijf;fUj;jpy; bfhz;L. Mjp jpuhtplh; kw;Wk; gH';Foapdh; ey ,af;Fehpy; fUj;jpida[k; Vw;Wfhypahft[s;s ,ilepiy Mrphpag; gzpapl';fspy; Mjp jpuhtplh;; kw;Wk; gH';Foapdh;gl;ljhhpfisf; bfhz;L epug;g jPh;khdpj;Js;sJ/2/ murhiz (epiy) vz;/113 gs;spf; fy;tpj;Jiw ehs; 14/03/1997y; Mjp jpuhtplh;kw;Wk; gH';Foapdh; ,dr;Rj;jpy; fhypahf cs;s 1.340 ,ilepiy Mrphpah; gzpapl';fisntiy tha;g;gf fhj;jpUg;nghh; gl;oapsppYs;s Mjp jpuhtplh; kw;Wk; gH';Foapdh; ,dj;ijrhh;e;j gl;ljhhp Mrphpah;fisf; bfhz;L epug;gt[k; mth;fSf;F khtl;l fy;tp kw;Wk; gapw;rpikak; (DIET) K:yk; FHe;ij kdepiy Fwpj;J xU khjg; gapw;rp mspj;Jf; fPH;f;fz;lepge;jidfSf;Fl;gl;L jdp epfH;thf gzp epakdk; bra;jpl muR Mizapl;Ls;sJ/" 10. The petitioner was appointed when no qualifiedSecondary Grade Teachers were available for appointment to the post.Therefore, the persons with B.Ed., qualifications were directed to beappointed and it was further clarified in the said Government Orderthat such person would be sent for training in Child Psychology for amonth, so that, those persons holding B.Ed., qualification, can beaccommodated in the Secondary Grade Teacher post.11. At this juncture, the learned counsel for thepetitioner states that in similar circumstances, a Division Bench ofthis Court in the case of Secretary & Correspondent Uswathun HasanaOriental (Arabic) Girls Higher Secondary School V. The State of TamilNadu (D.B.-A.Kulasekaran, J.) reported in 2002 Writ L.R.173 held thatthe B.Ed., qualified persons already appointed in Secondary GradePosts, could continue as Secondary Grade Teachers and a direction wasgiven to impart training in Child Psychology on them, that isrequired for the Secondary Grade Teachers. Paragraph 10 and 27 of thesaid judgment is usefully extracted here-under:- https://hcservices.ecourts.gov.in/hcservices/ "10. It is admitted that the Government after10.07.1995 in some occasions in order to clear the backlogvacancies in terms of communal reservation appointed B.Ed.,graduate teachers in the vacancy of Secondary Grade subjectto the condition that they must undergo training for aperiod of one month for child psychology conducted by theDistrict Educational Training Centre (DIET) and similarlyconsidering the urgency, the vacancy of teachers in Tamiland Telugu languages in the Secondary Grade GraduateTeachers in the respective languages were appointed with theabove said conditions.27. We appreciate the stand taken by the learnedAdditional Advocate General, which is a pragmatic stand andhas an unshakable base of experience. In order to avoid anundue hardship to these teachers who have been serving foryears together in the lower classes even after studying fora graduation degree that too on meagre salaries, it will bebetter if an exercise is taken for the confirmation of theseteachers. The modalities of which may be decided by theState Government. The State Government may decide to givethe practical training or may even choose to individuallyexamine each case on its own merits. There may be individualcases where the Management was absolutely justified inemploying a graduate teacher and there could be others wherethere was no such justification. We do not wish to draw thedetails and leave it to the State Government. However, theState Government shall take up this exercise as we haveindicated above providing relief to at least such teacherswho have been inducted prior to the dismissal of the writpetitions before the learned Single Judge. We directaccordingly while dismissing the appeals and the writpetitions. No costs."12. The learned counsel also relies on a decision of thiscourt in W.P.No.4402 of 2006, dated 20.03.2007, which has also arisenin the same department. That case also relates to the appointment ofpersons with B.Ed., qualification to the Secondary Grade post. In thesaid case, the existence of G.O.Ms.No.63 Adi Dravidar and TribalWelfare Department, dated 01.04.1997 was not brought to the notice ofthis court. In spite of the same, this court was of the view that theexperience gained by the teachers as Secondary Grade Teachers, afterappointment to the post, is sufficient to continue them in the post.It is also held in the said case that cancelling the appointmentwithout notice is bad in law. 13. I am of the considered view that the impugned order is https://hcservices.ecourts.gov.in/hcservices/ clearly in violation of G.O.Ms.No.63 Adi Dravidar and Tribal WelfareDepartment, dated 01.04.1997, besides the impugned order is violativeof principles of natural justice. Further, in view of the twocategorical decisions of this court, referred to above, the impugnedorder is liable to be interfered with. 14. Accordingly, the impugned order is hereby quashed andthe writ petition is allowed. The respondents are directed to postthe petitioner as Secondary Grade Teacher and to regularise her inthe post of Secondary Grade Teacher from the date of her appointmentto the said post, by sending her for training in Child Psychology for a month as contemplated inG.O.Ms.No.63 Adi Dravidar and Tribal Welfare Department, dated01.04.1997. The respondents are also directed to complete theexercise within a period of three months from the date of receipt ofa copy of this order. No costs.rnsSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Commissioner of Adi Dravidar and Tribal Welfare Chepauk Chennai – 5.2. The District Adi Dravidar and Tribal Welfare Officer Madurai+ 1 CC to Mr.G.ElanchezhiyanAdvocate(CC SR.48548)+ 1 CC to Government Pleader (CC SR.No48728)W.P.NO.14209 of 2007GV(CO)VC(06.10.2009)