S.Lakshmi v. The Chief Educational Officer,Nagercoil

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.01.2007CORAM:THE HONOURABLE MR. JUSTICE P.JYOTHIMANIW.P.No.35919 of 2004and W.P.M.P.No.43225 of 2004W.V.M.P.No.19 of 2005S.Lakshmi . . PetitionerVs.1.The Chief Educational Officer,Nagercoil. 2.The Director of School Education,College Road,Chennai. 3.The Head Master,Government Higher Secondary School,M.K.B.Nagar,Vyasarpadi,Chennai-39. 4.C.Seethalakshmi . . RespondentsPRAYER:This Petition is filed under Article 226 of the Constitution ofIndia to issue a writ of Certiorarified Mandamus calling for the recordsrelating to the order of the first respondent dated 23.11.2004 issued inthe Ref.No.Na.Ka.No.5680/A3/2000 and quash the same and further direct therespondents 1 to 3 to reinstate the petitioner as Sewing Mistress with allattendant benefits. For Petitioner : Mr.K.DhanalakshmiFor Respondents : Mr.P.Gopiraja, G.A.O R D E RThe writ petition is directed against the order of the firstrespondent dated 23.11.2004 by which the first respondent has cancelledthe appointment of the petitioner as Sewing Mistress dated 07.03.2001. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the petitioner is that she has acquired Diploma inCostume Design and Dress Making and has registered in the EmploymentExchange in the year 1991 and she has also registered her TTCqualification in the year 1993. On the basis of that, her name wassponsored by the Employment Exchange, the first respondent having foundthat the petitioner was qualified, has appointed the petitioner as SewingMistress by the order dated 07.03.2001 and the probation of the petitionerwas also completed on 23.08.2003. 3. By the impugned order of the first respondent dated 23.11.2004,the said appointment order, was sought to be cancelled by the firstrespondent on the basis that on the date of consideration of thepetitioner, namely, on 29.01.2001 for the appointment, the petitioneralong with other 4 persons including the fourth respondent were consideredon the basis that the candidates selected already, namely, the 4threspondent on 29.09.2000, did not turn up. The said list of 4 persons wasdirected to be considered without resorting to such a direction of theDistrict Employment Exchange. By mistake, instead of appointing thefourth respondent as per the sponsorship already made on 29.12.2000, thesecond list dated 29.01.2001 was considered and the petitioner wasappointed and the petitioner is working in the Tiruvallur District atGovernment Girls Higher Secondary School, Tiruvottiyur. 4. It is also stated that since the fourth respondent has approachedthe Tamil Nadu Administrative Tribunal by filing O.A.No.3017 of 2002, inwhich the Tribunal by an order dated 11.06.2000 has directed that theclaim of the fourth respondent should be implemented within 3 months andit was on that basis the appointment of the petitioner was sought to becancelled. The impugned order is challenged by the petitioner on manygrounds including that as far as the petitioner is concerned, her name wassponsored by the Employment Exchange on a priority basis, since thepetitioner has registered her name in the Employment Exchange on01.05.1993, while the fourth respondent has registered her name on28.11.1995 and therefore, even as per the employment seniority, thepetitioner is senior. 5. It is also the case of the petitioner that when the 4 namesincluding the name of the 4th respondent was sponsored, the firstrespondent being appointing authority has considered the relative meritsand ability and on verification of records has appointed the petitioner,since she is senior even in the registration in the Employment Exchange,as early as in 2001 and that cannot be said to be an invalid appointment. 6. It is also the case of the petitioner that it is not as if theTamil Nadu Administrative Tribunal has directed the first respondent toappoint the 4th respondent but there was only a direction to the firstrespondent to consider the appeal stated to have been filed by the 4threspondent. The petitioner also would submit that in fact the petitionerhas submitted his explanation and in spite of it, the impugned order https://hcservices.ecourts.gov.in/hcservices/ proceeds on the basis as if the petitioner has not submitted anyexplanation. 7. On the other hand, it is categoric case of the petitioner in theaffidavit filed in support of the writ petition that for the show-causenotice issued by the first respondent dated 01.03.2004, she has in factsubmitted here explanation on 17.03.2004. The petitioner being a personbelonging to SC community, she was considered on priority basis, apartfrom being Burma repatriates and therefore, her appointment was perfectlyin order. 8. The learned counsel for the petitioner would also substantiatethe same by saying that even a reference to the appointment order issuedby the first respondent dated 07.03.2001 shows that the petitioner wasgiven on a priority basis being belonging to Schedule Caste community andalso Burma repatriates and therefore, it cannot be said to be invalid. 9. On the other hand, the learned Government Advocate would submitthat it was as per the decision of the Tamil Nadu Administrative Tribunalin the application filed by the 4th respondent, when the matter wasconsidered it came to limelight that the fourth respondent was alreadysponsored earlier in 2000 itself and by overlooking the same in 2001, thefour persons were considered in which the petitioner was appointed andtherefore, the appointment of the petitioner was found to be not inaccordance with law and therefore, after giving show-cause notice to whichthe petitioner has submitted her explanation, the earlier order ofappointment of the petitioner was cancelled. 10. I have heard the learned counsel for the petitioner as also thelearned Government Advocate and perused the records. 11. A reference to the appointment order issued to the petitionerdated 07.03.2001 by the first respondent shows that the appointment orderhas been given to the petitioner as a Sewing Mistress and the saidappointment was made to a regular vacancy and the petitioner belongs tonot only Schedule Caste community but also on the basis of priority takinginto consideration that she is a Burma repatriate, she was appointed. Itis also seen that the probation of the petitioner has been declared by theorder of the Chief Educational Officer, Tiruvallur dated 29.08.2003 andaccordingly the petitioner has continued in service ever since from herdate of appointment till date. A reference to the order of the Tamil NaduAdministrative Tribunal in O.A.No.3017 of 2002 dated 11.06.2002 shows thatthe 4th respondent has approached the Tribunal against the order of theChief Educational Officer, Nagercoil, the first respondent herein dated05.09.2001 and for a direction to appoint her as a Sewing Mistress inwhich the petitioner, who was appointed earlier to the filing of the saidO.A. has not been made as a party. However, the Tribunal by the orderdated 11.06.2002 has only directed the Director of School Education todispose of the appeal preferred by the 4th respondent dated 13.09.2001 https://hcservices.ecourts.gov.in/hcservices/ within a stipulated time. Therefore, the reference in the impugned orderas if the Tribunal has directed the first respondent to implement theclaim of the fourth respondent within a period of 3 months is a misnomer. 12. On the other hand, when a show-cause notice was issued by theChief Educational Officer, Tiruvallur on 04.03.2004, the petitioner has infact submitted her explanation on 17.03.2004 and this is also mentioned inthe affidavit filed in support of the writ petition, which has not beendenied by the respondents in the counter affidavit filed. It is seen thatthe 4th respondent has also received a notice in the writ petition as earlyas 04.03.2005 and has not chosen to appear before the Court. A referenceto the impugned order also shows that while it may be true that in 2000the 4th respondent was the person sponsored but in 2001 when thecertificate verification were made, the Employment Exchange has admittedlysend the names of 4 persons including the petitioner as well as the 4threspondent. Even as per the impugned order it is seen that the date ofenrolment of the petitioner in the Employment Exchange was on 01.06.1992while that of the 4th respondent is 28.11.1995. It was considering all thesaid 4 candidates, the first respondent has appointed the petitioner. Insuch circumstances, there is absolutely no question of any irregularity orillegality in the appointment of the petitioner. In any event when thepetitioner was appointed as early as 2001 and it is not even the case ofthe respondents as if the petitioner has obtained the said order byillegal means and on the other hand, it is only on the relative merits andconsideration of both the petitioner as well as the 4th respondent, thepetitioner’s appointment was made in 2001. The cancellation of the saidorder, even assuming the appointment was by the fault on the part of thefirst respondent, the same cannot be attributed to the petitioner as such.13. In any event as I have stated that it is the specific case of thepetitioner that she has made a reply to the show-cause notice as early as17.03.2004 which has not been considered and therefore, I have nohesitation to come to the conclusion that the impugned order isunsustainable and suffers from the principles of natural justice. 14. It is seen that while admitting this writ petition in the orderdated 07.12.2004 this court has given interim direction and it wassubsequently extended from time to time, has and not been vacated so far.However, the learned counsel for the petitioner would submit that in spiteof the order of interim direction the petitioner was relieved on29.11.2004, which is not only against the order of the interim directiongiven by this Court but also as I have held the impugned order is notsustainable in law. https://hcservices.ecourts.gov.in/hcservices/

15. In view of the same, the writ petition stands allowed, settingaside the impugned order of the first respondent dated 23.11.2004 and witha direction to the respondents 1 to 3 to permit the petitioner to continueto the Sewing Mistress in the third respondent’s school. The respondents1 to 3 shall pay a cost of Rs.3000 to the petitioner. Consequently, theconnected W.P.M.P. And W.V.M.P. are closed. nbjSd/-Assistant Registrar/true copy/Sub Assistant Registrar.To1.The Chief Educational Officer,Nagercoil. 2.The Director of School Education,College Road,Chennai. 3.The Head Master,Government Higher Secondary School,M.K.B.Nagar,Vyasarpadi,Chennai-39. •One cc to Govt Pleader SR 615•One cc to Mrs. K. Dhanalakshmi, Advocate sR 280.KSJ (co)sg 10/01/07 order inW.P.No.35919 of 2004