S.J.MUKHOPADHAYA, J.
The respondent, B.Meenakshi, Lab Assistant of Sri Sarguru Tribal High School, Coonoor (hereinafter referred to as 'Coonoor School') was transferred along with the post in one N.S.Iyya Memorial Higher Secondary School, Katery Dam (hereinafter referred to as 'Katery Dam School') by proceeding dated 11th May, 2004. The Headmaster of the Coonoor School requested to relieve her against which she preferred a writ petition, which having remitted, the said order was not given effect. Her representation having not allowed, by proceeding dated 16th Nov., 2006, she was asked to join the Katery Dam School followed by proceeding dated 11th Dec., 2006. The aforesaid two proceedings dated 16th Nov., 2006 and 11th Dec., 2006, were challenged by the 1st respondent in the writ petition, which having allowed by learned single Judge by judgment dated 8th April, 2008, the Chief Educational Officer, Udhagamandalam, Nilgiris, has preferred the present appeal.
2. Learned single Judge observed that the impugned order of transfer of respondent along with the post is based on total misconception that there is no laboratory in the Coonoor School and for that there was no requirement to transfer the post along with the 1st respondent. Such finding has been assailed by the appellant.
3. The only question that arise for consideration in this case is :-
Whether the post of Laboratory Assistant along with the 1st respondent was rightly transferred to the other school or she was transferred on misconception that there is no requirement of such post in the Coonoor School.
4. Learned counsel appearing on behalf of the appellant brought to the notice of the Court relevant facts to suggest that there was no need for the post of Laboratory Assistant in the Coonoor School, a school of Secondary School Leaving Certificate standard (SSLC). On the other hand, the Katery Dam School being a higher secondary school (+2 level), it requires a Laboratory and a post of Laboratory Assistant and on the basis of such need of post in the Katery Dam School, the impugned proceeding of transfer of the 1st respondent along with the post was made.
It was further contended on behalf of the appellant that the competent authority had jurisdiction to abolish a post or to transfer a post from one school to another school taking into consideration the need of one or other school and till such transfer of post is shown to be arbitrary, without application of mind or perverse, the Court should not interfere with such order of transfer.
On the other hand, according to the counsel for the 1st respondent, there was a Laboratory in the Coonoor School, which is still existing and, therefore, there was no occasion to transfer the post of Lab Assistant from Coonoor School to Katery Dam School. Learned counsel also placed reliance on different proceedings and facts in support of his claim.
5. We have heard the learned counsel for the parties and noticed their rival contentions. From the submissions made by the parties and records, the following facts emerge :-
Previously Secondary Schools used to grant certificate on completion of 11th standard. After introduction of the Higher Secondary (+2 level), SSLC level schools are required to teach only upto 10th standard, whereinafter, SSLC examination is conducted and students who pass are granted certificate. In the higher secondary schools (+2 level), on the other hand, students are required to study not only upto 10th standard, but additional two standards, i.e., 11th and 12th standard.
It was brought to the notice of the Court by the counsel for the State that previously as per old SSLC system, when students used to read upto 11th standard, laboratory was essential for conducting practical test and examination. For the said reason, the post of laboratory assistant, as per rule, used to be sanctioned for secondary level schools, which used to teach upto 11th standard. After the new system, the students are to read upto 10th standard for appearing in SSLC examination. For such 10th standard schools no separate laboratory is required nor a post of Laboratory Assistant is required. But in the higher secondary schools (+2 level) such requirement is there, and for such school a laboratory is a must and there the post of laboratory assistant is sanctioned.
6. Counsel for the State relied on Form-I of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as 'Rules'), which relates to application for opening 'Pre-Primary School'; Form-I-A relating to 'High School' and Form-1-B relating to 'Higher Secondary School'. In the said Form, while no column has been provided to show whether any laboratory is attached with the school for opening Pre-Primary School and High School, in Form-I-B, for opening a Higher Secondary School it is to be shown whether there is any laboratory or not.
It is informed that in the High School practical tests are conducted for students upto 10th level by lab boys and the teachers, whereas in the Higher Secondary Schools (+2 level) such practicals are conducted by Lab Assistants.
It was submitted that the Coonoor School was previously teaching upto 11th standard under the old system of secondary school examination. At that time, there was a requirement of the post of Lab Assistant. Since 1980, the new system having come into effect, the Coonoor School is teaching only upto 10th standard to enable the students to appear in the SSLC examination. On the other hand, as per the norms, the Katery Dam School being a higher secondary school (+2 level), now requires the post of Laboratory Assistant. The aforesaid fact has not been disputed by learned counsel appearing on behalf of the 1st respondent.
It was contended that as the 1st respondent was functioning as Laboratory Assistant, after the new system, as there is no such requirement, the post could have been abolished and, thereby, the 1st respondent could have been retrenched from service. But, there being a need in the other school, i.e., Katery Dam School, for the post of Laboratory Assistant, it was decided to transfer the post along with the incumbent, i.e., the 1st respondent.
Learned counsel for the appellant rightly pointed out that the aforesaid aspect has not been noticed nor considered by learned single Judge while delivering the impugned judgment dated 8th April, 2008.
7. Learned counsel for the 1st respondent submitted that except the State Government, the Director has no jurisdiction to decide as to whether a post has to be abolished or to be transferred. This was refuted by the counsel for the appellant, who rightly placed reliance on Rule 15 (1), wherein the Director has been empowered to sanction a post, which means the Director has the power to abolish or transfer a post.
8. From the records it will be evident that after the new system, as the post of Laboratory Assistant was not required for Coonoor School, the Accountant General made audit objections with regard to the post of Laboratory Assistant in the Coonoor School. The Secretary, Coonoor School, by letter dated 18th Sept., 2003, while intimated the aforesaid audit objection, informed that in absence of a Laboratory, the post of Laboratory Assistant with the person may be recalled and the school will not claim the post. The Director of School Education, by letter dated 8th Nov., 2003, forwarded the same to the District Educational Officer, Coonoor, who noticed that the Laboratory Assistant post was sanctioned while Coonoor School was functioning under the old SSLC pattern and the 1st respondent was appointed as Laboratory Attender on 10th Aug., 1970. Now the said post is not needed for the Coonoor School and there is an audit objection and on the other hand the Katery Dam School needed such post. For the said reason, by proceeding dated 11th March, 2004, the Director of School Education, Chennai, taking into consideration that fixation is based on student strength, ordered to transfer the post of Laboratory Assistant from Coonoor School to Katery Dam School along with the 1st respondent.
9. We have noticed that the Director has the power to sanction a post under Rule 15 (1) and, thereby, we hold that the said Director also has power to create a post in the other school, i.e., Katery Dam School by transfer of one post from a school where no such post was needed. Based on the order of the Director, by proceeding dated 11th May, 2004 the Chief Educational Officer, Udhagamandalam, Nilgiris, requested the Headmaster to relieve the 1st respondent to join the Katery Dam School along with the post.
10. The order dated 11th March, 2004, issued by the Director transferring the post along with the incumbent was never challenged by the 1st respondent before any court of law or before any authority. The consequential order dated 11th May, 2004, was challenged on the ground that no show cause notice was given to Coonoor School before transferring the post of Laboratory Assistant from the said post. This Court, by order dated 2nd Dec., 2005 in W.P. No.22218/04, remitted the matter to the respondent with direction to the authorities to give a show cause notice to the authorities of the Coonoor School as to whether the said school has a laboratory at all and if not, why sanctioned post should not be transferred to another school having a laboratory. Pursuant to the Court's order, it appears that a show cause notice was given to the Coonoor School. The Secretary of the Coonoor School, in reply, specifically informed that as per Notification in the Tamil Nadu District Gazette, Chennai in Na.Ka. No.16-9/94-95/594 dated Jan., 2001, the post of Laboratory Assistant in the school is in excess and the same has been notified. For the said reason, the Coonoor School, by its letter dated 2nd March, 2002, followed by letter dated 18th Sept., 2003, have already informed that the above excess Laboratory Assistant post has been handed over to the Government. It was further informed that as per proceeding in Na. Ka. No.2620/A2/04 dated 21st June, 2004, the School has discharged the 1st respondent from work from February, 2004.
11. In view of the aforesaid reply submitted by the Coonoor School dated 3rd Oct., 2006, the Chief Educational Officer, Udhagamandalam, issued the impugned proceeding dated 16th Nov., 2006, followed by proceeding dated 11th Dec., 2006 transferring the post along with the 1st respondent and directed the 1st respondent to join the post.
The aforesaid factual aspect, as noticed by us, has not been taken into consideration by learned single Judge. The standards in the school has not been noticed nor it has been noticed that the school has categorically stated that the post of Laboratory Assistant is in excess; the Government has already notified the post as excess; the Accountant General, in its audit, has made objection and thus, there was no occasion for the 1st respondent to continue as Laboratory Assistant in the Coonoor School.
We have noticed that the 1st respondent has not challenged the proceeding of the Director of School Education dated 11th March, 2004. The earlier Gazette notification of 2001 by which the post was taken away from the Coonoor School has not been disputed by the 1st respondent; that the School do not require the post has not been disputed and that the 1st respondent was earlier discharged from the school is also not in dispute. In this background, we are of the view that the 1st respondent was not entitled to get any relief from the Court. If the 1st respondent does not join the post in the transferred school, then she will have to lose the job in absence of any post in the Coonoor School.
We, accordingly, set aside the impugned order dated 8th April, 2008, passed by learned single Judge, allow the 1st respondent to join the post in the transferred school within a fortnight. The writ appeal is allowed. But there shall be no order as to costs.