This Writ Petition is filed for issuing a Writ of Certiorarified Mandamus to quash the proceedings of the third respondent dated 19.05.2014 and the consequential proceedings of the fourth respondent dated 21.09.2015 and further to direct the respondents to accord approval to the appointment of the petitioner in the fifth respondent school as B.T. Assistant (Social Science) with effect from 12.01.2010.
2.Heard the learned counsel appearing for the petitioner, the learned Additional Government Pleader appearing for the respondents 1 to 4 and the learned counsel appearing for the fifth respondent.
3.The petitioner was appointed as B.T. Assistant (Social Science) in the fifth respondent school on 12.01.2010 in the vacancy arose by relieving one Mr.A.Felix Lourdhuraj on 05.01.2010, due to his selection for appointment in a Government school. It is not in dispute that the petitioner was appointed in a regular sanctioned post. It is also admitted that the fifth respondent is a minority educational institution.
4.The fifth respondent submitted the proposal on 01.04.2010 for the approval of the petitioner's appointment with effect from 12.01.2010. However, the third respondent vide proceedings dated 14.07.2010, returned the proposal and directed the fifth respondent to submit the proposal with details required through the fourth respondent. When the proposal was submitted through the fourth respondent, the fourth respondent by proceedings dated 29.10.2010 rejected the proposal to approve the appointment of the petitioner on the ground that as per roster, B.T. Assistant (Maths) has to be appointed and not B.T. Assistant (Social Science). Even earlier, an application dated 06.01.2010 was filed before the fourth respondent seeking upgradation of the post as Graduate Teacher and for conversion of the post which fell vacant due to the relieving of one A.Flix Lourdhuraj who was working as Secondary Grade Teacher, as Graduate Teacher (Social Science). An application was also made for conversion of the post as B.T. Assistant (Social Science). The petitioner was appointed on 12.01.2010 as B.T. Assistant (Social Science). The application for conversion was also explained by the fifth respondent school in several communications which is not disputed in this case. Out of four posts of Secondary Grade Teachers, already three posts were filled by Graduate Teachers. It is the specific case of the fifth respondent that on 01.06.2006 a teacher was appointed as B.T. Assistant (Graduate Teacher) (Maths). Again applying the roster on 06.12.2006 another B.T. Assistant (Science) was appointed. On 02.06.2008 another B.T. Assistant (English) was appointed. Hence, on 12.01.2010 B.T. Assistant (Social Science) was appointed. Since B.T. Assistant (Maths) was appointed already and working in the school and there was no teacher for teaching social science was appointed, taking into consideration the need for appointment of B.T. Assistant (Social Science), the fifth respondent school appointed the petitioner as B.T. Assistant (Social Science).
5.The fifth respondent submitted another proposal for the conversion of Secondary Grade Assistant post into B.T. Assistant (Social Science) post, on 17.11.2011 before the third respondent through fourth respondent. There was subsequent representations from the fifth respondent on 13.01.2012 and 07.06.2013 requesting conversion of the Secondary Grade Teacher post into B.T. Assistant post with effect from 12.01.2010 to approve the appointment of the petitioner as B.T. Assistant (Social Science). After keeping the matter pending for so long, the fourth respondent passed an order on 17.06.2013 returning the proposal requesting the fifth respondent to submit further documents like roster register staff fixation order and staff time table. It is pertinent to mention that the fifth respondent has specifically stated that the details required by the fourth respondent were already submitted along with the proposal. However, the fourth respondent returned the proposal without approval by proceedings dated 17.06.2013 stating that the approval for appointment can be considered only after receiving the order from the third respondent regarding conversion of Secondary Grade post into B.T. Assistant (Social Science) post. Once again the fifth respondent submitted another representation on 19.09.2013 requesting the third respondent to approve the conversion of post and further to approve the appointment of the petitioner. However, the third respondent vide proceedings dated 19.05.2014 rejected the proposal for conversion of Secondary Grade post into B.T. Assistant (Social Science) post on the ground that only after conversion of Secondary Grade post as B.T. Assistant post appointment can be made and that the fourth respondent for such conversion, can only forward his recommendation. Hence, the post of Secondary Grade Teacher cannot be converted as a post of B.T. Assistant (Social Science).
6.The fifth respondent also submitted further representation on 19.01.2015 requesting conversion of post and approval for the appointment of the petitioner. The fourth respondent once again passed an order on 12.02.2015, rejecting the approval stating that the application for approval can be considered only after permission is obtained for conversion of the roster, as per G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008. The fifth respondent once again submitted another representation on 24.03.2015 requesting conversion of the Secondary Grade Post into B.T. Assistant (Social Science) post so as to get approval for the appointment of the petitioner. Since the petitioner was appointed on 12.01.2010 and is working for more than five years without salary, the fifth respondent has made subsequent representations on 03.09.2015 and on 12.09.2015. Ultimately, by proceedings dated 21.09.2015, the fourth respondent returned the proposal without approval stating that the third respondent has already passed an order on 19.05.2014 rejecting the proposal to convert the Secondary Grade Post into B.T. Assistant (Social Science) post. It is in the above circumstances, the above Writ Petition has been filed to quash the order dated 19.05.2014 rejecting the proposal for conversion of Secondary Grade post into B.T. Assistant (Social Science) post and the order of fourth respondent refusing to approve the appointment of the petitioner. The Writ Petition is also for consequential direction directing the respondents to accord approval for the appointment of the petitioner with effect from 12.01.2010 with all service and monetary benefits.
7.The learned counsel appearing for the petitioner submitted that the order rejecting the approval for the appointment of the petitioner is illegal and untenable in the light of several decisions of this Court. When it is not in dispute that the appointment of the petitioner was in a regular and sanctioned post no prior approval is required especially when the appointment is made by the fifth respondent school which is a minority institution. When there is no dispute regarding the fact that the petitioner's appointment is against a sanctioned post as per the staff fixation of 2010-2011, the rejection of approval to the appointment of petitioner is per se invalid.
8.Having regard to the factual position that there was no teacher in the school to teach social science, the appointment of the petitioner in the fifth respondent school as B.T. Assistant (Social Science) cannot be termed as irregular. When the conversion of the post as B.T. Assistant (Social Science) is in the interest of students and very well justified, the impugned order without an application of mind as to the requirement of the school is improper. The learned counsel for the petitioner relied upon a judgment of this Court in the case of R.C.Susai Higher Secondary School v. The Government of Tamil Nadu rep. by its Secretary to Government and others in W.P.No.18044 of 2011, dated 21.03.2012 wherein G.O.Ms.144, School Education (D1) Department, dated 04.07.2008 and G.O.Ms.No.244, School Education (Va Se-2) Department, dated 22.09.2007, are held to be not applicable to the fifth respondent school. The learned counsel for the petitioner further relied upon a judgment of this Court by a Division Bench in Writ Appeal (MD) Nos.828 of 2014 and 129 to 132 of 2015.
9.The fifth respondent filed a detailed counter affidavit supporting the writ petitioner. The counter affidavit filed by the fifth respondent refers to various Government Orders and the entitlement of the school to seek conversion of the posts. It is the specific stand of the fifth respondent that the post of Secondary Grade Teacher when filled up would automatically be considered as upgraded into Junior Grade Graduate and Junior Grade Post Graduate Teacher. It is also the case of the fifth respondent that pursuant to the Government Order vide G.O.Ms.No.125, School Education Department, dated 12.11.2003, the vacancies are required to be filled up by roster. However, it was further stated by the fifth respondent that the said Government Order fixing roster system was held to be invasive on the right of minority schools to make appointment according to the need of the school concerned and that therefore, the Government Orders to insist prior approval before conversion is unconstitutional. Since the third respondent herein rejected the request of the fifth respondent school without considering the merit and the facts leading to the appointment of petitioner in the post of B.T. Assistant (Social Science), the fifth respondent also pleaded that the Writ Petition deserves to be allowed on merits. It was also contended by the fifth respondent that the papers for conversion of B.Ed. Graduate Teachers post as one of History was addressed to the Chief Education Officer even before the appointment of the petitioner. Since the impugned order passed by the third respondent dated 19.05.2014 relying upon G.O.Ms.No.144, School Educational (D1) Department, dated 04.07.2008 is contrary to the judgment of this Court in number of cases, the learned counsel appearing for the fifth respondent submitted that the impugned order of third respondent, dated 19.05.2014 and the consequential order passed by the fourth respondent dated 21.09.2015 are liable to be quashed.
10.A detailed counter affidavit was also filed by the fourth respondent and this counter is also on behalf of the respondents 1 to 3. In the counter affidavit of fourth respondent the fact that the petitioner is a minority school is admitted. However, it is stated that the petitioner was appointed in the post of Secondary Grade Teacher and hence, it was to be converted into B.T. Assistant. Since the appointment of the petitioner was made on 12.01.2010 in the post of B.T. Assistant (Social Science), the proposal for the approval of the appointment was rejected by order dated 29.10.2010, on the ground that as per the subject-wise rotation, the vacancy in the fifth respondent school was to be filled up by candidate qualified in Maths subject and not B.T. Assistant with Social Science. The Government instructions by various Government Orders clearly mandate the appointment of B.T. Teachers in the place of Secondary Grade Teachers only on subject-wise rotation. It is the further case of fourth respondent that as per G.O.Ms.No.79, School Education Department, dated 14.06.2002 wherever a vacancy of Secondary Grade Teacher post arises on account of the retirement or resignation or for any reason, middle Graduate teacher post shall be created in phased manner in lieu of such vacancy of Secondary Grade Teacher post and only B.Ed. qualified teacher should be appointed with Secondary Grade Teacher scale of pay with an advance increment. It was also contended that as per G.O.Ms.No.100, School Education Department, dated 27.06.2003 only B.Ed. qualified teachers should be appointed in Standard VI to X for the subjects English, Science, Maths and History and Geography. The said Government Order was relied upon by the fourth respondent to justify their stand that when promotion, vacancy of Secondary Grade Teachers in middle school arises, B.Ed., qualified teachers will be appointed in a phased manner and that in the first phase, B.Ed., teachers will be appointed for Maths, Science and English subjects. Since as per the Government Order, the existing Secondary Grade Teachers should be utilised to teach all subjects till all the Secondary Grade Teachers posts are converted into B.Ed. Teachers post, the appointment of petitioner in the post of B.T. Assistant (Social Science) without getting approval is an irregularity. The fourth respondent further relied upon G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008 wherein it has been specifically stated that when permanent vacancies in the post of Secondary Grade Teacher arise, the Chief Educational Officers are empowered to convert the post as B.Ed., Teachers in the subject based on need and merit. Further, the counter affidavit of the fourth respondent also refers to the purpose and object behind the executive orders passed by the Government. It was further contended by the fourth respondent that the purpose of fixing the subject roster for appointment of B.Ed., teachers in standard VI to X, all the classes of a school should be treated as one unit as per G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008. Finally, the fourth respondent in the counter affidavit stated that fixing subject roster by respondents 1 to 4 does not interfere with the rights of minority institutions and hence, the Government Orders should be followed by every institution including the fifth respondent.
11.Sum and substance, the whole counter affidavit is focussed only on the requirement of prior approval for the conversion of the post. In other words, the main contention of the fourth respondent is that it is only the fourth respondent who is competent to convert the post on need basis and that the appointment of the petitioner without getting prior approval for the conversion of post is irregular and contrary to various Government Orders issued by the Government from time to time. Surprisingly, the fourth respondent has not stated any logical reason to hold that the fifth respondent's application for conversion cannot be granted on merits and on the facts admitted.
12.The third respondent by proceedings dated 19.05.2014 has passed the following order:
?nfhtpy;gl;o fy;tp khtl;lk;. FGFkiy Mh;/rp/ Nir nky;epiyg;gs;spapy; 12/01/2010 Kjy; tuyhW gl;ljhhp Mrphpauhf jpUkjp/$h/bukpyh vd;ghiu epakdk; bra;ag;gl;ljw;F mDkjp ntz;o fUj;JU ghh;itapw; fz;l khtl;l fy;tp mYtyh; Kyk; bgwg;gl;Ls;sJ/ nkw;fz;l gs;spapy; ,ilepiy Mrphpah; fhypg;gzpaplj;ij njitf;nfw;g ghh;itapw; fz;l murhizapd;go gl;ljhhp Mrphpah; gzpaplkhf khw;wk; bra;J Miz bgw;w gpd;dnu Mrphpah; epakdk; bra;a ntz;Lk;/ vdnt ghh;itapw;fz;l murhizapd;go ,ilepiy Mrphpah; fhypg;gzpaplj;ij gl;ljhhp Mrphpah; gzpaplkhf khw;Wtjw;fhd fUj;JU kl;Lnk khtl;lf; fy;tp mYtyuhy; ghpe;Jiu bra;ag;gl ntz;Lk;/ vdnt ,ilepiy Mrphpah; gzpaplj;ij 12/01/2010 Kjy; tuyhW gl;ljhhp Mrphpah; gzpaplkhf khw;wk; bra;a ,ayhJ vd bjhptpf;fg;gLfpwJ/ ,izg;g[ ? bgwg;gl;l fUj;JU/?
13.From the order of third respondent, it is clear that the school should get prior permission or approval for the conversion of post from Secondary Grade to B.T. Assistant as per G.O.Ms.No.144, School Education (D1) Department, 04.07.2008. Further, it is stated that the conversion of Secondary Grade post with effect from 12.01.2010 as a post of B.T. Assistant (Social Science), cannot be granted. The said order clearly indicate that there is total non-application of mind. The petitioner has applied for the upgradation of the post of Secondary Grade Teacher as a Graduate Teacher (B.T. Assistant) and for approval for the post of conversion of subject for specific reason. The subsequent communication from the fifth respondent to the respondents 3 and 4 clearly indicate that on need basis the fifth respondent has approached the third respondent for subject conversion apart from upgradation of the post of Secondary Grade Teacher into one as B.T. Assistant or Graduate Teacher.
14.Having regard to the admitted facts in this case, the sanctioned strength of fifth respondent school for classes VI, VII and VIII are 7. Already 4 posts of Secondary Grade Teachers were upgraded and Graduate Teachers were appointed in the place of 4 Secondary Grade Teachers. Out of 4 Graduate Teachers, one teacher is a Graduate Teacher in Maths. 2 teachers were appointed as Graduate Teachers in Science. One Graduate Teacher was appointed in English subject. Since there was no Graduate Teacher to teach Social Science, the minimum requirement of the school is to have the teacher to teach Social Science. Hence, the application for conversion of subject and for upgradation was rightly submitted even before the appointment of petitioner in the fifth respondent school. However, the respondents 3 and 4 did not apply their mind and rejected the approval of the appointment only on the ground that there was no prior approval for the conversion of the subject. The return of proposal for the appointment of petitioner on one hand and the return of proposal for conversion of subject roster on the other hand without an application of mind on the factual position that exists in the fifth respondent school at the relevant point of time renders both the order impugned in the Writ Petition invalid, arbitrary and unsustainable in law. The rejection of approval for conversion of subject roster by proceedings dated 19.05.2014 is erroneous for the following reasons.
15.The fifth respondent has applied promptly for conversion of subject roster and for upgradation of the post of Secondary Grade Teacher into one as B.T. Assistant / Graduate Teacher in terms of G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008. Though the conversion of subject roster should be decided on need basis, the third respondent has failed in his duty to consider the case of the fifth respondent when the fifth respondent approached the third respondent for getting approval for the conversion of subject by roster system. The facts in this case and materials on records clearly disclose that the school is in need of a teacher to teach social science as there is already a teacher working by holding the post of Graduate Teacher in Maths subject. In such circumstances, the application of the fifth respondent for conversion of subject roster to enable the fifth respondent to appoint the petitioner as Graduate Teacher or B.T. Assistant (Social Science) ought to have been allowed as the respondents have not stated any other reason to reject the request of the petitioner to seek conversion of subject roster or to dispense with the appointment of the Graduate Teacher in Maths. In the whole counter affidavit, the fourth respondent has not given any reason so that this Court can also turn down the request of the petitioner on the ground that the fifth respondent ought not to have appointed the petitioner and that the appointment should be made only in the post of B.T. Assistant (Maths).
16.In the case of R.C.Susai Higher Secondary School Vs. The Government of Tamil Nadu, a learned Single Judge of this Court in W.P.(MD)No.18044 of 2011, by Judgment, dated 21.03.2012, has held as follows:
?86.In this background, it may be noticed that G.O.Ms.No.244, dated 22.09.2007 has no application to the Recognised Private School, as the Government of Tamil Nadu cannot issue the administrative instruction in exercise of powers under Sec. 56 of the Act, nor can frame rules under
Article 309 of the Constitution of India, as the power to make rules under Tamil Nadu Recognised Private School (Regulation) Act, 1973, can only be by following procedure laid down under Section 56 of the Act. The rules so framed are required to be published in the Government Gazette so as to be enforceable in law.
87.The G.O.Ms.No.244 therefore cannot have any application to the petitioner school.
88.G.O.Ms.No.125, dated 12.11.2003 has been issued in exercise of power conferred under Sec.56 of the Act, stand notified in the Tamil Nadu Government Gazette dated 03.12.2003. Therefore, it has force of law which has categorised teachers in 3 categories as referred to above.
89.This amendment is in force since 03.12.2003 and the school are therefore, entitled to appoint the teachers as per the amended rules, which does not stipulates the roster.
90.The G.O.Ms.No.144, dated 4.7.2008 has been issued by the Government by way of administrative instructions. It is not understood how the Government could issue this order by way of clarification of G.O.Ms.No.244 for applying it to Government aided school when G.O.Ms.No.244 itself was not applicable to the Government aided schools for want of jurisdiction of the Government to issue any such instructions.
91.G.O.Ms.No.144 cannot be a basis to deny approval to the petitioner for the simple reason that reading of order itself shows that proposal to amend the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974 is yet to be issued. Unless and until such an amendment is carried out and the rules framed are notified in the Gazette, till then the Government order cannot be applied to the recognised private schools.
92.The contention of the learned counsel for the petitioner that G.O.Ms.No.144 dated 04.07.2008 suffers from the vice of arbitrariness and therefore, is violative of
Article 14 of the Constitution of India, as it defeats the object of regulating the education cannot be accepted. The order has been passed to regulate the education to see that teachers are appointed as per the requirement of the school for better education of the students. Therefore, the order is in consonance with the object sought to be achieved.
93.However, the second part of the order stipulating that once the post is converted, under no circumstances, it can be re-converted in future is certainly contrary to the object sought to be achieved. In case of necessity of the teacher is of the particular subject depending on the strength of the school and students, there can be no bar to re-convert the post. (There is no necessity to go into this point), as the G.O.Ms.No.144, dated 04.07.2008 has no application to the case of the petitioner, as it is not published in the Government Gazette, nor the rules have been framed as per the procedure laid down under Sec.56 of the Act. Unless the amended rules are published in the Government Gazette, it can have no force of law and, cannot apply to privately managed aided schools.
94.For the reasons stated hereinabove, this Writ Petition is allowed. The impugned order rejecting the request of the petitioner for grant of approval of appointment of a teacher with effect from the date of appointment, is set aside, and a writ in the nature of mandamus is issued directing the respondents to grant approval for appointment with effect from the date of appointment, within two weeks of receipt of certified copy of this order.?
17.The contention of the learned counsel for the petitioner as well as the fifth respondent stating that G.O.Ms.No.144, School Education (D1) Department, dated 04.07.2008 and other Government Orders cannot be insisted in the case of the fifth respondent school, need not be decided in the present case as contrary view has been expressed in few other judgments of this Court. However, the administration of educational institutions cannot be hampered by referring approval or denying appropriate relief on erroneous interpretation of Government Orders without considering the object and purpose. When the conversion is asked for on need basis, it cannot be referred to cause inconvenience or hardship to individual teacher. In the judgment of the Hon'ble Division Bench in W.A.(MD)Nos.828 of 2014 and 129 to 132 of 2015, the common issue arise for consideration was whether the petitioners therein are entitled for approval of their appointments as B.T. Assistants from the date of their initial appointment or from a subsequent date, namely, from the date on which permission was granted by the appellants for the conversion of posts. The Hon'ble Division Bench has held as follows:
?11.In view of the above consistent decisions of this Court on the issue, we are of the view that the issue is no more res integra. As rightly contended by the learned counsel for the 1st respondents/teachers, approval has to be granted only from the date of appointment and not from a later date, namely, from the date on which permission for post conversion was granted.
12.Contention by the appellants that the retuned proposals were not challenged by the management and hence, it has to be treated as accepted and hence, the teachers have no right to question the same cannot be accepted. It has to be seen that ultimately, it is the teachers who are affected. Therefore, even if the management has not taken up the case, the aggrieved teacher has every reason to question the retuned proposals. The educational authorities ought to have considered that the very object of the Tamil Nadu Recognised private Schools (Regulation) Act, 1973 and the Rules made thereunder are to protect the interest of the teachers and students. Therefore, right of the teacher cannot be said to be extinguished. Power of the educational authorities to issue directions to fill-up the posts on conversion cannot be questioned. At the same time, the schools should be given latitude to fill-up the required posts. If Maths and other subject teachers are already working in a school, the management should have the right to fill up the posts with other subjects, if there is a need for filing up the posts with the required subjects.?
18.Since this Court has already held that the impugned order passed by the third respondent dated 19.05.2014 is invalid and the fifth respondent is entitled to get conversion of post with effect from the date of application, once it is held that the petitioner is entitled to get conversion of post to enable the fifth respondent to appoint the petitioner in the post of B.T. Assistant (Social Science), it follows that the petitioner is entitled to succeed to quash the order of fourth respondent rejecting the approval for the appointment of the petitioner with effect from the date of appointment. For all the above reasons, this Writ Petitions is allowed. The impugned order of the fifth respondent vide proceedings dated 19.05.2014 in O.Mu.No.1143/A3/2014, and the consequential proceedings of the fourth respondent dated 21.09.2015 in O.Mu.No.4309/AA1/2015, are quashed. Consequently, the respondents 3 and 4 are directed to accord approval to the petitioner's appointment as B.T. Assistant (Social Science) in the fifth respondent school with effect from 12.01.2010 with all service and monetary benefits. The respondents 3 and 4 are directed to complete this exercise within a period of six weeks form the date of receipt of a copy of this order. No costs. Consequently, connected W.M.P.(MD).Nos.1602 to 1604 of 2016 are closed.
To
1.The Secretary to Government, Department of School Education, Fort St.George, Madras ? 600 009.
2.The Director of School Education, DPI Campus, College Road, Chennai-600 006.
3.The Chief Educational Officer, The Office of the Chief Educational Officer, Thoothukudi District.
4.The District Educational Officer, The Office of the District Educational Officer, Kovilpatty, Thoothukudi District..