K.Nagarani v. Director of School Education, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.06.2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE C.T.SELVAMWrit Appeal No.4130 of 2004& W.A.M.P.No.7785 of 2004K.Nagarani.. Appellant/Petitionervs. 1. Director of School Education, Chennai.2. District Educational Officer (North), Chennai.3. Secretary & Correspondent, P.T.Lee Chengalvaraya Naicker High School, Choolai, Chennai.4. D.Pushpa.. Respondents /RespondentsWrit Appeal against the order dated 16.07.2004 passed inWP.No.11413 of 2001 on the file of this Court. This Writ Petitionfiled under Article 226 of the constitution of India to issue a Writof Mandamus, directing the third respondent managemetn to submit copyof the proposal dated 26.10.1998, to the 2nd respondent so as toenable the 2nd respondent to approve the appointment of thepetitioner, as B.T.Assistant (Science) and direct the 2nd respondentto approve the appointment of the petitioner and confer all theconsequential benefits.For Appellant : Mr.C.Selvaraju, S.C.For M/s.S.ManiFor Respondents : Mr.J.R.K.Bhavanantham for R-3Mr.K.Sridhar for R-4Mr.M.Dhandapani, Spl.G.P.Assisted by P.Gurunathan, G.A.For RR1 and 2--- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Delivered by PRABHA SRIDEVAN,J.)The appellant/writ petitioner was appointed as a science graduateteacher in the third respondent school on temporary basis in 1995.The Assistant Director, Professional & Executive Employment Office,addressed a letter dated 30.5.1998 to the Secretary, P.T.LeeChengalavaraya Naicker Trust, to call for candidates for thevacancies to the post of B.T. Assistant Science (Chemistry) on OpenCompetition. Several names including the appellant's name were foundin the list. The appellant was appointed as B.Sc., B.Ed., MathsTeacher by proceedings No.P.T.Lee CNT/A/768/98 dated 8.9.98. TheDistrict Educational Officer addressed a letter to the correspondentof the third respondent school that on the proposals sent by thethird respondent school for approval of the appointment of theappellant, no approval will be given since the proposals sent by theschool and rejected by the office on 9.7.99 had not been re-submitted. Thereafter, the appellant herself made a request on3.1.2000 to consider her case sympathetically and appoint herpermanently as Physics graduate teacher. Then, she filed the presentwrit petition for a mandamus to direct the third respondent to submitthe proposal dated 26.10.98 to the second respondent to enable thesecond respondent to approve the appointment and direct the secondrespondent to approve the appointment. 2.The secretary of the third respondent school filed a counterstating that Rule 15(4) of the Tamil Nadu Recognised Private SchoolsRegulation Rules, 1974 must be followed in the appointment of theteacher and that by mistake, the committee of management, withoutconsidering the Rule 15(4) (ii) (i), adopted the procedure of Rule 15(4) (ii)(ii) (c) by calling for the list of candidates from theEmployment Exchange. The counter also referred to a letter dated9.7.99 wherein the District Educational Officer had pointed out thatthere were eligible candidates to be appointed by way of promotionunder Rule 15(4)(ii) (i) of the Rules. It is also averred in thecounter that the petitioner is not qualified to be appointed as B.T.Assistant since she has studied in Telugu Medium.3.When the matter came up for hearing, the learned Judge foundthat Rule 15(4) makes it clear how the appointment has to be made andthat as a matter of priority, the post is to be filled up bypromotion from among the qualified teachers in that school andthereafter, if no such person is available, to follow the otherdirections as laid down in the Rule. Respondent No.4 is one of thesecondary grade teachers, who are in the employment of the school andthere is nothing on record to show that they had been foundunsuitable, in which event alone the next option would be availablefor the school while deciding the person to be appointed. Rule 15(4)reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "15. Qualifications, conditions of service of teachers andother persons. (1) ...(2) ...(3) ...(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 ofteachers shall 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, -(a) Appointment of other persons employed in thatschool, provided they are fully qualified to hold the postof teachers.(b) Appointment of teachers from any other school.(c) Direct recruitment.In the case of appointment from any other school or bydirect recruitment, the School Committee shall obtain theprior permission of the District Educational Officer inresepct of Pre-primary, Primary and Middle School and thatof the Chief Educational Officer inr espect of High Schoolsand Higher Secondary Schools, Teachers' TrainingInstitutions setting out the reasons for such appointment.In respect of corporate body running more than one school,the schools under that body shall be treated as one unitfor purpose of this rule.(d) Appointment to the post of Headmaster of HigherSecondary School shall be made by the method specified inclause (ii) either from the category of Headmasters of HighSchools or Teachers' Training Institutes or from thecategory of Post-Graduate Assistants in academic subjectsor Post-Graduate Assistants in Languages provided theypossess the prescribed qualifications."In these circumstances, the learned Judge found that there was noillegality committed by the second respondent in not accordingapproval and therefore, while dismissing the writ petition held thatthe third respondent school shall take steps to fill-up the post inaccordance with the provisions contained in rule 15(4) and if thepetitioner is eligible, her candidature may also be considered.4.The learned senior counsel appearing for the appellant/writpetitioner submitted that the appellant's appointment was neverquestioned, that the fourth respondent was nowhere in the picturewhen the appointment order was issued and that she was subsequentlyimpleaded and her case cannot be projected in the writ petition filedby the appellant for re-considering her case. The learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel submitted that in the present case, rule 15(4) does not comeinto the picture at all and the only thing to be considered isAnnexure III of the rules, which deals with the procedure forappointment of pay and allowances to teachers and other persons inprivate schools. The learned senior counsel, therefore, submittedthat all that the appellant wanted was consideration of her case forapproval of her appointment.5.We do not think that the matter is as simple as projected bythe learned senior counsel. The prayer is not only for a directionto re-submit her application, but for a direction to the respondentsto consider her case and a direction to the second respondent toapprove. So, really the petitioner wants a categoric direction fromthis Court to have her appointment approved of. When this is theprayer, it is difficult for us to accept the submission that thequestion of approval need not be decided in her writ petition. Whenwe issue a mandamus and direct the authorities to act in certainmanner, it is needless to say that our direction implicitly meansthat the action should be in accordance with law. No Court's ordershall be considered as giving a direction that is contrary to law orin violation of a specific provision. It is only, therefore, thatthe learned Judge extracted Rule 15(4) and observed that unless thefirst option is ruled out and there are no qualified teachers to beappointed, the second option can be chosen and under electing thesecond option, there was no suitable candidate, then the third optionand so on. The learned senior counsel for the appellant submittedthat he would be satisfied if his request was directed to beconsidered and orders passed. The manner in which the words 'considerand pass orders' should be construed has been recently dealt with bythe Supreme Court in (2006) 3 SCC 674, wherein it has been held asfollows:-"17. Where the High Court finds the decision-making processerroneous and records its findings as to the manner inwhich the decision should be made, and then directs theauthority to “consider” the matter, the authority will haveto consider and decide the matter in the light of itsfindings or observations of the court. But where the HighCourt without recording any findings, or without expressingany view, merely directs the authority to “consider” thematter, the authority will have to consider the matter inaccordance with law, with reference to the facts andcircumstances of the case, its power not beingcircumscribed by any observations or findings of the court.18. We may also note that sometimes the High Courtsdispose of the matter merely with a direction to theauthority to “consider” the matter without examining theissue raised even though the facts necessary to decide thecorrectness of the order are available. Neither pressure ofwork nor the complexity of the issue can be a reason for https://hcservices.ecourts.gov.in/hcservices/ the court to avoid deciding the issue which requires to bedecided, and disposing of the matter with a direction to“consider” the matter afresh. Be that as it may.19. There are also several instances where unscrupulouspetitioners with the connivance of “pliable” authoritieshave misused the direction “to consider” issued by court.We may illustrate by an example. A claim, which is stale,time-barred or untenable, is put forth in the form of arepresentation. On the ground that the authority has notdisposed of the representation within a reasonable time,the person making the representation approaches the HighCourt with an innocuous prayer to direct the authority to“consider” and dispose of the representation. When thecourt disposes of the petition with a direction to“consider”, the authority grants the relief, taking shelterunder the order of the court directing him to “consider”the grant of relief. Instances are also not wanting whereauthorities, unfamiliar with the process and practicerelating to writ proceedings and the nuances of judicialreview, have interpreted or understood the order “toconsider” as directing grant of relief sought in therepresentation and consequently granting reliefs whichotherwise could not have been granted. Thus, action of theauthorities granting undeserving relief, in pursuance oforders to “consider”, may be on account of ignorance, or onaccount of bona fide belief that they should grant reliefin view of the court’s direction to “consider” the claim,or on account of collusion/connivance between the personmaking the representation and the authority deciding it.Representations of daily-wagers seekingregularisation/absorption into regular service is a speciesof cases, where there has been a large-scale misuse of theorders “to consider”.20. Therefore, while disposing of the writ petitions witha direction to “consider”, there is a need for the HighCourt to make the direction clear and specific. The ordershould clearly indicate whether the High Court is recordingany finding about the entitlement of the petitioner to therelief or whether the petition is being disposed of withoutexamining the claim on merits. The court should alsonormally fix a time-frame for consideration and decision.If no time-frame is fixed and if the authority does notdecide the matter, the direction of the court becomesvirtually infructuous as the aggrieved petitioner will haveto come again to court with a fresh writ petition or filean application for fixing time for deciding the matter. https://hcservices.ecourts.gov.in/hcservices/ Therefore, we cannot shut our eyes to the explicit provisions of theAct and give directions to the authorities to "approve theappointment".6.Seen in this light, the learned single Judge has correctlypassed the order. Therefore, we do not think the direction given bythe learned single Judge merits any interference. The writ appeal isdisposed of directing the third respondent to take steps to fill upthe post in accordance with the provisions contained in rule 15(4) ofthe Tamil Nadu Recognised Private Schools (Regulation) Act. Thelearned counsel for the fourth respondent submits that that exercisehas been completed by the proceedings in P.T.Lee CNT/A/1026/01 dated29.9.2004. No costs. Consequently, connected M.P. is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo1. The Director of School Education, Chennai.2. The District Educational Officer (North), Chennai.3. The Secretary & Correspondent, P.T.Lee Chengalvaraya Naicker High School, Choolai, Chennai.1 cc To Mr.K.Sridhar, Advocate, SR.254281 cc To Mr.S.Mani, Advocate, SR.25255W.A.No.4130 of 2004PUR(CO)SRA(8/7/2009)