IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.09.2017 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.No.12689 of 2010 and M.P.No.1 of 2010 M.Josphine Amla Juliva .. Petitioner Vs.
1. The Director of School Education, Saram, Government of Puducherry, Puducherry.
2. Fathima Higher Secondary School, reptd. by its Secretary, Archdiocesan Board of Education, Puducherry.
3. The Principal, Fathima Higher Secondary School, Puducherry. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of Mandamus, direction to the Respondent No.1 to pay salary to the petitioner as stated in the appointment order No.15092/DSE/GIAS/U-III/2004-05 dated 01.08.2006 with arrears of salary with effect from 01.08.2006 with interest at the rate of 18% per annum.
For Petitioner : Mr.J.James For Respondents : Mr.Syed Mustafa (for R1) Government Pleader (Pondy) Mr.S.M.Edward Stanley (for R2 & R3) O R D E R This writ petition is filed seeking issuance of a writ of Mandamus to direct the first respondent to pay salary to the petitioner as stated in the appointment order No.15092/DSE/GIAS/U-III/2004-2005, dated 01.08.2006 with arrears of salary with effect from 01.08.2006 with interest at the rate of 18% per annum.
2. The facts succinctly stated are as follows:
The petitioner joined the respondent/School as Primary School Teacher on 22.07.1998 and she claims that her services have been regular and continuous, even though there was technical termination. It is claimed that she was appointed as regular Primary School Teacher on 01.03.2005 by the second respondent.
3. It is averred that based on the recommendation of the School Committee, the Correspondent/Headmaster of the respondent school was informed vide proceedings of the first respondent dated 01.08.2006, that the proposal to appoint the petitioner as Primary School Teacher in the scale of pay of Rs.4500-125-7000/- is approved.
4. It is alleged that despite such appointment under the Grant in Aid Scheme, the Government is not releasing her pay and in view of the same, she is being paid only Rs.2,100/- per month in these years. The school management sent series of representations requesting the Government to release the salary due and payable to the petitioner, but the same did not evoke any response. Hence, the present writ petition is filed for the relief stated supra.
5. The main plank of the argument of the learned counsel for the petitioner is that the appointment of the petitioner having been approved by the first respondent vide proceedings dated 01.08.2006, the denial of salary in terms of the said proceedings from grant-in-aid is arbitrary, discriminatory and perverse.
6. It is further contended that since the date of appointment, the petitioner is working on consolidated pay of Rs.2,100/- per month and the same is not commensurate with the nature of hard work performed by the teaching community.
7. The learned Government Pleader (Puducherry) appearing on behalf of the first respondent contended that since the respondent school informed that there was excess staff when compared to students’ strength, the respondent Government issued a memorandum dated 09.01.2006 not to fill up the vacant posts.
8. He further contended that since the petitioner did not possess the requisite qualification as prescribed under the Recruitment Rules, she is not eligible to be appointed to the post of Primary School Teacher and, therefore, the approval was withheld.
9. The learned counsel appearing on behalf of the respondent school submitted that the school has less teaching staff compared to the students and that they have made series of representation to the first respondent seeking increased in staff strength and that the petitioner is still being paid only consolidated pay, even though her appointment was approved as early as 01.08.2006.
10. I heard Mr.J.James, learned counsel appearing for the petitioner and Mr.Syed Mustafa, learned Government Pleader (Pondicherry) appearing for the 1st respondent and Mr.S.M.Edward Stanley, learned counsel appearing for the respondents 2 and 3 and perused the documents available on record.
11. It is admitted that the recommendation of the School Committee for appointment of the petitioner as Primary School Teacher was approved as early as 01.08.2006 and since then she is in continuous employment and grant-in-aid has not been released.
12. The second respondent school being a minority institution, as per the law laid down by the Supreme Court in Pramati Educational and Cultural Trust Vs Union of India, 2012 (6) SCC 106, the provisions of the Right of Children to Free and Compulsory Education Act, 2009 will not apply.
13. With regard to the plea of the respondent Government that the petitioner does not have the requisite qualification as contemplated under the Recruitment Rules, it is apposite to refer to a decision of a Division Bench of this Court (to which I was a party) in Secretary to Government, Government of Tamil Nadu, Education
Department & others v. S. Jeyalakshmi and another, 2016(7) MLJ 155, wherein the issue relating to the passing of TET in respect to teachers employed in minority institution came to be considered and it was held that the Government cannot insist upon the minority institution both aided or unaided to abide by any regulation framed under the provisions of Right of Children to Free and Compulsory Education Act, 2009.
14. In the light of the law enunciated in the decisions, referred supra, the respondent Government cannot insist on the petitioner passing the Teacher Eligibility Test. Therefore, the ground raised by the respondent Government that the petitioner does not possess the qualification as contemplated under the Recruitment Rules fails.
15. A perusal of the typed set of documents filed by the respondent school shows that there is shortage of teaching staff compared to the student strength and they are in desperate need of teaching staff. This has been the consistent stand of the respondent school even in their earlier representations. The same is not disputed by the respondent Government.
16. The respondent Government having approved the recommendation of the School Committee for appointment of the petitioner way back on 1.8.2006, on being satisfied with her qualification, cannot now take a plea that the petitioner does not possess the requisite qualification, which ground also fails in the light of the decisions, referred supra.
17. In such view of the matter, this Court is inclined to allow the writ petition and direct the first respondent to give immediate effect to the order dated 01.08.2006 and pay all arrears of salary with effect from 01.08.2006, of course, without interest. The first respondent is directed to pass such orders expeditiously, in any event, within twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2010 is closed.
22.09.2017 Note:Issue order copy on 15.12.2017 vs Index: Yes Speaking order To The Director of School Education, Saram, Government of Puducherry, Puducherry.
M.V.MURALIDARAN. J.
vs W.P.No.12689 of 2010 and M.P.No.1 of 2010
22.09.2017