S. Pandara Vadivu v. The Director of Elementary Education, College Road, Chennai - 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 26-6-2009CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.1618 of 2001S. Pandara Vadivu... PetitionerVs.1.The Director of Elementary Education,College Road,Chennai - 600 006.2.The District Elementary Educational Officer,Tuticorin.3.The Secretary and CorrespondentMr.K.S.Senthilnayagam,PSM Middle School,Kulasekharapattnam - 628 206.... RespondentsThis writ petition is filed under Article 226 ofConstitution of India, praying this Court to issue a writ ofCertiorarified mandamus, calling for the records relating to thesecond respondent's proceedings made in Mu.Mu.No.8392/A1/99, dated22.11.2000 to quash the same and consequently direct therespondents to grant approval of the appointment of the petitioneras Headmistress of the third respondent Institution and accord allbenefits both service and monetary including continuity of service,etc.For Petitioner:Mr.L.ChandrakumarFor Respondents 1 &2:Mr.K.BalakrishnanFor 3rd Respondent:Mr.Godson Swaminathanfor Mr.Isaac MohanlalO R D E RThe prayer in the writ petition is to quash the order dated22.11.2000 passed by the second respondent declining grant of https://hcservices.ecourts.gov.in/hcservices/ approval of petitioner's appointment as Headmistress in the thirdrespondent school with consequential direction to approve theappointment of petitioner as Headmistress.2.The case of the petitioner is that after passinggraduation, she registered her name in the Employment Exchange inthe year 1996 initially at Cuddalore, which was subsequentlytransferred to Madurai District Employment Exchange. A vacancy arosein the third respondent - private aided School in the cadre ofHeadmistress due to the retirement of the then Headmaster. The thirdrespondent applied for permission to fill up the post and no orderhaving been passed, the third respondent invited applicationsthrough news paper - Dinakaran, Tirunelveli edition, dated18.6.1999. On receipt of applications, a selection committee wasconstituted by the third respondent and interview was held to assessthe merit and ability. Considering the merit and ability, thepetitioner was selected and appointed as Headmistress from28.6.1999. Appointment order was issued to the petitioner by thethird respondent on the undertaking given by the petitioner that nosalary will be paid unless the appointment is approved by thedepartment. The petitioner joined the services of the thirdrespondent, even though she was not having five years of teachingexperience. It is stated that no other candidate, who applied to thethird respondent, was having five years of teaching experience.3.The third respondent submitted proposal for approvalbefore the second respondent, who is the competent authority. Thesaid application seeking approval was rejected on the followinggrounds:(a)Third respondent failed to obtain prior approval forappointment,(b)Third respondent failed to get list from the EmploymentExchange, prior to appointment, and,(c)Petitioner is not having five years of teaching experience.Thereafter the petitioner was relieved from the services of thethird respondent by order dated 19.12.2000. The order disapprovingthe appointment of the petitioner is challenged in this writpetition on the ground that there is considerable delay on the partof the second respondent in not granting prior permission to fill upthe post of Headmaster and only after submitting application seekingprior permission, the third respondent invited applications throughnewspaper, pursuant to which several persons applied. It iscontended that calling for list from the Employment Exchange forappointment may be a source and the same cannot be the exclusivesource. Petitioner having been appointed on the basis of theadvertisement published in the newspaper, the second respondentcannot reject approval on the ground that her name was not sponsored https://hcservices.ecourts.gov.in/hcservices/ through the Employment Exchange. Insofar as not having five years ofexperience is concerned, no candidate applied for the post washaving the required teaching experience and in fact there is aprovision to get exemption from the Government for not having fiveyears of teaching experience and the Government also grantedexemption to similarly placed persons. Even if exemption cannot begranted, petitioner's appointment can be approved as B.T.Assistantfor five years and on completion of five years service, Headmistresssalary can be paid.4.The third respondent filed counter affidavit statingthat the post of Headmaster in the third respondent School becamevacant on 1.6.1999 due to the retirement of the then HeadmasterV.Murugan on 31.5.1999. As no suitable person was available in theSchool for promotion to the post, the School Committee resolved tofill up the post by direct recruitment and after seeking priorpermission from the competent authority, the third respondentinvited applications through newspaper dated 18.6.1999, pursuant towhich nine candidates applied and appeared for selection. None ofthe candidate applied for the post, was having five years ofteaching experience like that of the petitioner. Petitioner wasfound meritorious from among the candidates appeared for interviewand she also gave assurance that she would get exemption order fromthe Government for not having five years of teaching experience.But, the petitioner could not obtain necessary orders of exemptionfrom the Government and hence her appointment was also not approvedand consequently by proceeding dated 19.12.2000, the petitioner wasrelieved from the post as per the direction issued by the AssistantElementary Educational Officer, Udankudi, by his proceedings dated12.12.2000. The third respondent also justified the appointment ofthe petitioner since the Headmaster post is an important post to theSchool, which has to be filled up for proper administration of theschool. It is further stated in the counter affidavit that thepetitioner after being relieved from the third respondent School,secured employment in another school viz., Dalpin PublicMatriculation School, Bye-pass Road, Madurai, and she was workingthere from May, 2001 to April, 2002. Now she is employed in KanchiSri Sankara Academy Matriculation School, Manakkad Road, WestTiruchendur, Tuticorin District.5.The other respondents have not filed counteraffidavit.6.Heard Mr.L.Chandrakumar, learned counsel for thepetitioner, Mr.K.Balakrishnan, learned Additional Government Pleaderfor the respondents 1 and 2 and Mr.Godson Swaminathan, learnedcounsel for the third respondent. https://hcservices.ecourts.gov.in/hcservices/

7.The points arise for consideration in this writpetition are as follows:(a)Whether the third respondent School is entitled to appointthe petitioner as Headmistress without getting prior permission fromthe second respondent ?(b)Whether approval of appointment of the petitioner can berejected on the ground of not sponsoring the name of the petitionerthrough the Employment Exchange?(c)Whether the petitioner is entitled to claim approval withouthaving five years of teaching experience ?8.Admittedly the third respondent School is arecognised Private Aided Non-minority School and therefore theprovisions of the Tamil Nadu Recognised Private Schools (Regulation)Act, 1973, and the Tamil Nadu Recognised Private Schools(Regulation) Rules, 1974, are applicable to it. There was noteacher eligible to be appointed in the third respondent school forbeing promoted to the post of Headmaster and the School Committee ofthe third respondent resolved to fill up the post by directrecruitment.9.Rule 15(4)(ii)(ii)(c) of the Tamil Nadu RecognisedPrivate Schools (Regulation) Rules, 1974, deals with 'directrecruitment' in private aided schools. It is stated therein that incase of appointment from any other school or by direct recruitment,the School Committee shall obtain the prior permission of theDistrict Educational Officer in respect of pre-primary, primary andmiddle schools and that of the Chief Educational Officer in respectof the High Schools and Higher Secondary Schools, Teachers TrainingInstitutions, setting out the reasons for such appointment. Thus,it is evident that vacant post in a recognised Private Aided Non-minority School can be filled up by direct recruitment, only aftergetting prior permission from the competent authority.10.Here in this case, the case of the petitioner andthe third respondent School is that the third respondent applied forprior permission and no order was passed by the competent authorityviz., the second respondent and therefore the third respondentproceeded to fill up the post on the expectation of the grant ofprior permission.11.(a) The question as to whether on submittingapplication if no order is passed, whether it can be treated asdeemed permission/approval or not insofar as seeking prior approvalof the competent authority before passingdismissal/removal/reduction in rank of a teacher as required under https://hcservices.ecourts.gov.in/hcservices/ section 22 of the Act, came up for consideration before this Courtin the decision reported in 1998 WLR 641 (T.Ramamoorthy v. TheSecretary, Sri Ramakrishna Vidyalaya High School, etc. & Others). ADivision Bench of this Court in the said decision in paragraph 6held as follows:"6.We have carefully considered thesubmissions of the learned counsel appearing oneither side on the basis of the abovedecisions. We are of the view that the viewtaken by the Division Bench in the decisionreported in 1996 (II) CTC 577 is the correctand proper view that should and ought to betaken in a matter like this, as could be seeneven from the decision of the Apex Courtreported in AIR 1987 SC 1210 cited supra, andnothing concrete was brought to our notice onbehalf of the (sic) appellant (respondent?)warranting any re-thinking or re-considerationof the issue in a different manner or to arriveat a different conclusion. The decision of thelearned single Judge which is the subjectmatter of appeal before us, is liable to be setaside on the basis of the principles laid downby the Division Bench reported in 1996 (II) CTC577 alone which squarely governed this caseagainst the Management. In addition to thereason already assigned therein, we may alsoadd that if the statutory provision enacted bythe Legislature prescribed a particular modefor terminating the service or dismissing theteaching or a non-teaching staff of a school,it can and has to be done not only in thatmanner alone, but it cannot be done in anyother manner too. This principle that where apower is given to do a certain thing in acertain way, things must be done in that wayand not otherwise and that other method ofperformance is necessarily precluded, is notonly well settled, but squarely applies to thiscase also in construing the scope of the poweras also its exercise by the management underSection 22 of the Act."In fact the Division Bench reversed the judgment of the learnedsingle Judge holding that if no order is passed, there is deemedapproval.(b)In the decision reported in 2002 (4) CTC 129 (RVThevar Memorial Girls High School v. The Director of SchoolEducation) again a similar issue as to whether the provisions viz., https://hcservices.ecourts.gov.in/hcservices/ Section 22 and Rule 17 are mandatory or not, was considered by theDivision Bench of this Court and it is held therein that passingorders before obtaining prior approval is illegal and void asobtaining permission is mandatory as per the statutes.(c)Whether an outsider can be appointed as a teacherwhen teachers working in the lower cadre are available in the Schoolin violation of Rule 15(4) of the Tamil Nadu Recognised PrivateSchools (Regulation) Rules, 1974, was considered by another DivisionBench of this Court in the judgment reported in 2005 (1) CTC 8 (TheSecretary, Saliar Mahajana Higher Secondary Schools v. G.Subburaj),wherein it is held that if any appointment is made in violation ofRule 15(4), it is not valid. Paragraphs 4 and 5 of the said Judgmentread as follows:"4.Admittedly, the first respondenthad been appointed on 10.8.1997 as a Post GraduateTeacher in Commerce.Rule 15(4)(i) of the Tamil Nadu RecognisedPrivate Schools (Regulation) Rules, 1974, statesas follows:"Promotion shall be made on grounds of meritand ability, seniority being considered onlywhen merit and ability are approximatelyequal.(4) Appointments to the various categoriesof teachers shall be made by the followingmethods:-i)Promotion from among the qualifiedteachers in that school.ii)If no qualified and suitable candidateis available by method (i) above, -(a) Appointment of other persons employedin that school, provided they are fullyqualified to hold the post of teachers.(b) Appointment of teachers from anyother school.(c) Direct recruitment."5.A perusal of the above Rule showsthat appointment of outsiders can only be made ifno qualified and suitable internal teacher isavailable. In other words, sub-clause (ii) ofRule 15(4) will only apply when no teacher fallingin the category of sub-clause (i) of Rule 15(4) isavailable. It is undisputed that there wereteachers available as specified in sub-clause (i)of Rule 15(4) i.e. internal candidates. Hence theappointment of the first respondent who was anoutsider was clearly illegal. It was rightly set https://hcservices.ecourts.gov.in/hcservices/ aside by the Joint Director of School Education byorder dated 17.12.2001 and that order has beenrightly confirmed by the learned single Judge.Admittedly, during the period when the firstrespondent was working i.e from 11.8.1997 toOctober 2004, he has been paid a consolidatedsalary of Rs.1,050 p.m. (later enhanced toRs.1,250 p.m.) from the donations received by theManagement. The learned single Judge has directedthat the first respondent should be paid salary ofa regular teacher for the period for which he hadworked i.e. from 11.8.1997. We are of the opinionthat this direction of the learned single Judgefor payment of salary as a regular teacher for theperiod for which the first respondent worked,cannot be sustained. Admittedly, the firstrespondent was not a legally appointed teacher.He had been appointed illegally in violation ofRule 15(4) of the Rules. Hence we cannot see howhe can be granted salary of a regular teacher."12.The third respondent School being a private aidedSchool as defined in Section 2(7) of the Act, granting recognitionunder Section 11 of the Act and being administed by the SchoolCommittee formed under Section 15 of the Act, is bound to follow theTamil Nadu Recognised Private School (Regulation) Rules, 1974, inthe matter of appointment of Headmaster and teaching staff also. Thesaid rule 15(4) is not followed by the third respondent School whileappointing the petitioner.13.Similar writ petition challenging the rejection ofapproval for not obtaining prior approval was raised in W.P.No.13914of 1992 and the writ petition was dismissed on 13.4.1994, which wasaffirmed by the Division Bench in W.A.No.786 of 1993 by order dated25.7.1993.14.The second respondent has not granted any priorapproval to fill up the post of Headmaster of the third respondentschool, which is admittedly required under the above said statutoryprovision, viz., Rule 15(4). The School Committee took a decision togo for direct recruitment to fill up the post of Headmaster. Thesaid fact having not been disputed, the appointment of thepetitioner by the third respondent School is to be treated asinvalid and illegal and the said order will not confer any right tothe petitioner. https://hcservices.ecourts.gov.in/hcservices/

15.In view of the above finding arrived at, I am of theview that the other reasons given by the second respondent whilerejecting approval of appointment of the petitioner need not be goneinto in this writ petition.There is no merit in this writ petition and consequently,the writ petition stands dismissed. No costs.vrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Director of Elementary Education, College Road, Chennai - 600 006.2. The District Elementary Educational Officer, Tuticorin.+ 1 cc to Mr. L. Chandrakumar, Advocate, SR No.26741+ 1 cc to Mr. Isaac Mohanlal, Advocate, SR No.26558BS(CO)SR/6.7.2009 Order in W.P.No.1618 of 2001