* * * Prayer in W.P.(MD)No.7671 of 2007 Petition filed under Article 226 of the Constitution of India to issue Writ of Certiorarified Mandamus calling for the records of the third respondent dated 24.06.2004 in A.T.Mu.No.4076/A2/04 and quash the same and consequently, direct the respondents 1 and 3 herein to approve the appointment of the petitioner as Junior Post Graduate English Teacher with effect from the date of appointment namely 14.06.2004 and pay the salary as per the scale of pay applicable to Tamil Pandit. Prayer in W.P.(MD)No.7672 of 2007 : Petition filed under Article 226 of the Constitution of India to issue Writ of Certiorarified Mandamus calling for the records of the third respondent dated 24.06.2004 in A.T.Mu.No.4075/A2/04 and quash the same and consequently, direct the respondents 1 and 3 herein to approve the appointment of the petitioner as Secondary Grade Teacher with effect from the date of appointment namely 14.06.2004 and pay the salary as per the scale of pay applicable to Tamil Pandit.
Prayer in W.P.(MD)No.7673 of 2007 Petition filed under
Article 226 of the Constitution of India to issue Writ of Certiorarified Mandamus calling for the records of the third respondent dated 24.06.2004 in A.T.Mu.No.4074/A2/04 and quash the same and consequently, direct the respondents 1 and 3 herein to approve the appointment of the petitioner as Junior Post Graduate English Teacher with effect from the date of appointment namely 14.06.2004 and pay the salary as per the scale of pay applicable to Tamil Pandit.
For Respondents 4 & 5 ... Mr.AR.L.Sundaresan, Sr.Counsel in all these petitions for Mr.V.R.Shanmuganathan :COMMON ORDER All the three writ petitions are arising out of a common issue involved and as such, these petitions have been taken up together for hearing with the consent of the learned counsel on either side and this common order is passed.
2. The petitioners have come forward with these petitions seeking for the relief of quashing orders of the third respondent dated 24.06.2004 in A.T.Mu.No.4074/A2/04 with a prayer to direct the respondents 1 and 3 herein to approve the appointment of the petitioners as Junior Post Graduate English Teacher, Secondary Grade Teacher and Tamil Pandit with effect from the date of appointment namely 14.06.2004 and pay the salary as per the scale of pay applicable to the respective posts.
3.1. The case of the petitioners is that they have been appointed as Junior Post Graduate English Teacher (in W.P.No.7671/07), Secondary Grade Teacher (in W.P.No.7672/07) and Tamil Pandit (in W.P.No.7673/07) by the fourth and fifth respondents on 12.06.2004. Before the appointment, the fifth respondent submitted a proposal for seeking prior permission for filling up the vacancies which had arisen enabling the fifth respondent to fill up the vacancies. The third respondent by his proceedings dated 12.03.2004 had returned the proposals stating that a report was called for by the first respondent herein in view of the legal proceedings were pending with regard to the educational agency of the school and as per the order dated 13.02.2004 in W.P.No.13268 of 2003 the Society was directed not to make any appointment with regard to the school and hence after clarifications were obtained, the question of grant of prior permission should be considered.
3.2. The order passed by this Court in W.P.No.13268 of 2003 dated 13.02.2004 was stayed by this Court by order dated 16.04.2004 in WAMP No.2590 of 2004 in W.A.No.1404 of 2004. Therefore, there is no legal impediment for the respondents 1 to 3 to consider the claim of the fifth respondent for granting permission to fill up the vacancies. But the respondents 1 to 3 have not considered the request.
3.3. Thereafter, the fifth respondent filed a writ petition in W.P.No.14209 of 2004 for a direction to the respondents to forthwith grant permission to the fifth respondent school for filling up the vacancies. This Court by order dated 18.05.2004 granted the interim relief in W.P.M.P.No.16794 of 2004 in W.P.No.14209 of 2004 permitting the fifth respondent to fill up vacancies. In view of the said order, the petitioners have been appointed and thereafter, the fifth respondent sent an application seeking the relief of approval of the appointment of the petitioners. But the third respondent rejected the claim of the fifth respondent to approve the appointment of the petitioners on the grounds that (i) prior permission was not obtained by the fifth respondent for the appointment of the petitioners ; (ii)Rule 15(4) of the Tamil Nadu Private School Regulation Rules, 1974 (hereinafter referred to as "the Rules") is not followed ; and (iii) a list of eligible candidates was not obtained from the employment exchange. Being aggrieved against the said impugned orders dated 24.06.2004, the petitioners have been constrained to approach this Court with the above said prayers.
4.1. Mr.AR.L.Sundaresan, learned Senior Counsel for the fourth and fifth respondents/educational institutions, contended that the impugned orders are liable to be quashed in view of the Division Bench order of this Court in W.A.No.442 of 2007 which was followed in W.P.No.4542 of 2006 dated 28.10.2008 as well as the decision of this Court in P.Nageswaran V. District Elementary Educational Officer reported in 2008 (1) MLJ 1332 following the Full Bench judgment of this Court in R.Sivakumari V. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam (2007) 6 MLJ 1583 holding that sponsorship through employment office can be a source and not an exclusive source and the Appointing Authorities are empowered to invite applications through paper publication and other modes and if appointments are made by giving opportunity to all the candidates to apply, the same is permissible. It is contended by the learned senior counsel that in the instant case, paper publication was already given inviting applications in order to fill up the posts and accordingly, the petitioners have applied, attended interview and ultimately appointed.
4.2. In respect of the applicability of Rule 15(4) of the Rules, it is submitted that no qualified candidates or teachers were available in the school as per the service registers of the teachers at that time and as such, the applications were called for by giving paper publication for giving opportunity to all.
4.3. In view of such submissions, it is contended by the learned senior counsel that the impugned orders are liable to be quashed.
5. Heard Mr.T.Ponramkumar, learned counsel for the petitioners and the learned counsel adopted the contentions put forward by Mr.AR.L.Sundaresan, learned senior counsel for the respondents 4 and 5.
6. Heard Mr.R.Manoharan, learned Government Advocate on the submissions made by the learned senior counsel for the respondents 4 and 5 as well as the learned counsel for the petitioners. It is contended that there is no infirmity in the impugned orders warranting interference of this Court. It is submitted by the learned Government Advocate that the appointment to various categories of teachers shall be made from (i) promotion from among the qualified teachers of that school ; (ii) If no qualified and suitable candidate is available by method (i) above, - (a) Appointments of other persons employed in that school, provided they are fully qualified to hold the post of teachers (b) Appointment of teachers from any other schools (c) Direct Recruitment. It is further contended that the educational institution, viz., the fourth and fifth respondents herein had not obtained prior permission for filling up the vacancies and also not followed Rule 15 (4) of the Rules.
7. I have carefully considered the rival contentions put forward by either side and perused the materials available on record.
8. The fact remains that the petitioners have been appointed as early as in the year 2004. It is pertinent to note that before their appointment, the fifth respondent preferred an application seeking for the relief of prior permission to fill up the vacancies. But the said application was rejected on the ground of pending legal battle between the members of the management. However, it is seen that this Court passed an order dated 18.05.2004 in W.P.M.P.No.16794 of 2004 in W.P.No.14209 of 2004 permitting the fifth respondent to fill up the vacancies and accordingly, the fifth respondent proceeded to fill up the vacancies through the direct recruitment as there was no qualified persons, viz., candidates available in the school. It is pertinent to note that the fifth respondent had also given paper publication calling for application and accordingly, the petitioners have applied for the respective posts and attended interview and thereafter, they have been selected and appointed on 14.06.2004.
9. Now the crux of the question involved in these matters is that whether the impugned orders passed in these matters on the ground of non-compliance of Rule 15(4) ; not obtaining prior permission for filling up the vacancies ; and not obtaining the list of candidates from the employment exchange are sustainable ?
10. In respect of the one of the reasons assigned by the third respondent, viz., obtaining prior permission for filling up the vacancies, it goes without saying that the fifth respondent filled up the vacancies by appointing the petitioners pursuant to the order passed by this Court dated 18.05.2004 in W.P.M.P.No.16794 of 2004 in W.P.No.14209 of 2004.
11. As far as the another reason, viz., non-compliance of Rule 15(4) is concerned, it is categorically contended by the respondents 4 and 5 that as per the service registers qualified candidates were not available in the respective posts at that time, for which the petitioners have been appointed and as such, the fifth respondent is entitled to fill up the vacancies by following the method of direct recruitment. Admittedly, the paper publication was given, applications were called for and received thereafter interview was conducted and ultimately, the petitioners have been selected and appointed and as such, the question of non-compliance of Rule 15(4) does not arise.
12. Now in respect of the last reason assigned in the impugned order, viz., the sponsorship of the candidates by the employment exchange, the learned senior counsel for the fourth and fifth respondents rightly placed reliance on the decision of this Court in P.Nageswaram V. District Elementary Educational Officer reported in 2008 (1) MLJ 1332, in which this Court held as hereunder : "5. The learned counsel further submits that the matter in issue is covered by the judgment of Division Bench of this Court in W.A.No.696 of 1998 dated 12.11.2002 and a Full Bench of this Court in R.Sivakumari V. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam (2007) 6 MLJ 1583 : 2007 (5) CTC 561. In the said judgments, the Division Bench as well as the Full Bench, following the judgment of the Supreme Court in Excise Superintendent Malkapatnam, Krishna District V. K.B.N.Visweshwara Rao and Others (1996) 6 SCC 216, held that the sponsorship through employment office can be a source and not an exclusive source and the Appointing Authorities are empowered to invite applications through Paper publication and other modes and if appointments are made by giving opportunity to all the candidates to apply, the same is permissible appointments are bound to be approved.
6. In the light of the above judgments, and having regard to the fact that the said teacher was appointed pursuant to the Paper Publication, the first respondent is directed to approve the appointment of the said teacher with effect from 24.04.2006 with salary and other benefits, if her appointment is otherwise in order."
The principle laid down in the decision cited supra is squarely applicable to the facts of the instant case.
13. For the aforesaid reasons, the order of the third respondent is liable to be quashed and accordingly, the order dated 24.06.2004 in A.T.Mu.No.4075/A2/04 passed by the third respondent is hereby quashed and the respondents 1 to 3 are directed to approve the appointment of the petitioners herein in the posts of Junior Post Graduate English Teacher, Secondary Grade Teacher and Tamil Pandit respectively with effect from the date of appointment namely 14.06.2004 and grant salary and other benefits from the date of their appointment retrospectively. It is made clear that the above said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
These petitions are ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Director of School Education, College Road, Chennai - 600 006.
2. The Chief Educational Officer, Virudhunagar.
3. The District Educational Officer, Virudhunagar.