IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 21.09.2017 CORAM:
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.No.9857 of 2005 S.Gomathy ... Petitioner Vs
1. The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai – 9.
2. The Director of School Education, College Road, Chennai-6.
3. The Chief Educational Officer, Tirunelveli District, Tirunelveli- 9.
4. The District Educational Officer, Tirunelveli District, Tirunelveli.
5. The Muslim Girls Higher Secondary School, Melapalayam, Tirunelveli – 5 rep. by its Correspondent. ... Respondents Petition is filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus calling for the records relating to the order of the second respondent, issued in his communication No.M.M.No.67106/D3(4)/2004, dated 27.7.2004 and quash the same and consequently direct the respondents 1 to 4 to sanction one Physical Education Teacher post to the 5th respondent School from 1.6.1988, consequently, to approve the petitioner's appointment with salary and other benefits as Physical Education Teacher in the 5th respondent school from 1.6.1988 to 5.10.2004.
For Petitioner : Mrs.R.Mahalakshmi For Respondents : Mr.R.Govindasamy Special Government Pleader for respondents 1 to 4 Mr.G.Elanchezhian for 5th respondent
O R D E R
Challenging the order of the second respondent dated 27.7.2004 and for a consequential direction to the respondents 1 to 4 to sanction one Physical Education Teacher post to the 5th respondent school from 1.6.1988 and to approve the petitioner's appointment with salary and other benefits as Physical Education Teacher from 1.6.1988 to 5.10.2004, the present writ petition has been filed.
2. The case of the petitioner is that she was appointed as Physical Education Teacher in a leave vacancy from 8.10.1973 to 13.12.1973 in Muthiah Hindu Primary School, Kalakkadu and again she was appointed in the same school in a leave vacancy from 11.11.1974 to 05.1.1975. From 4.11.1982 to 31.3.1983, the petitioner was appointed as Physical Education Teacher in a leave vacancy in Government High School, Kongarakurichi, Tirunelveli District and from 29.7.1987 to 30.8.1987 she was appointed in Ganesa Moorthy Middle School, Veeraraghavapuram, Tirunelveli District. According to the petitioner, for the leave vacancy appointments, she was paid salary by the Department and thus, she is fully qualified for being appointed as Physical Education Teacher.
3. According to the petitioner, she was appointed as Physical Education Teacher in the 5th respondent school from 1.6.1988 and served till 6.10.2004 and thereafter, her post being not sanctioned, she joined as Physical Education Teacher in Municipal Girls Higher Secondary School, Tiruneveli. The petitioner's selection was based on her seniority and she was receiving consolidated salary from 6.10.2004. The petitioner was not paid salary from 1.6.1988 to 5.10.2004 though she worked in the 5th respondent school, which is a fully aided school.
4. It was contended by the petitioner that the Management of the 5th respondent school applied for sanction of Physical Education Teacher post through respondent Nos.3 and 4, which was duly recommended by them. However, the first respondent has failed to sanction Physical Education Teacher post to the 5th respondent school and consequently, the petitioner could not able to get salary from 1.6.1988. On 3.7.2004, the petitioner submitted a representation to the second respondent and the second respondent gave reply stating that since the petitioner was appointed in a non- sanctioned post in the 5th respondent school, her appointment could not be approved and salary could not be paid. Despite sanction of posts to similarly placed aided minority and non-minority schools by the Government, no Physical Education Teacher post was sanctioned to the 5th respondent school. Hence, the petitioner has filed the writ petition seeking the prayer aforesaid.
5. On the other hand, the case of the respondents 1 to 4 is that as per G.O.Ms.No.525, School Education Department, dated 29.12.1997, surplus teachers have to be re-deployed to the needy schools first. Only after re- deployment of surplus teacher to the needy schools, additional posts could be sanctioned to such needy schools. Therefore, only surplus Physical Education Teachers could be deployed to the 5th respondent school on their request. The request of the petitioner is against G.O.Ms.No.525, dated 29.12.1997. According to the respondents 1 to 4, the impugned order refusing to sanction new Physical Education Teacher post is in order and the same deserves to be upheld. In fact, the petitioner was appointed in the 5th respondent school in a non-sanctioned post and therefore, she is not entitled to claim salary from Government funds. The 5th respondent school is bound to pay from his own fund.
6. I heard Mrs.R.Mahalakshmi, learned counsel for the petitioner, Mr.R.Govindasamy, learned Special Government Pleader appearing for the respondents 1 to 4 and Mr.G.Elanchezhian, learned counsel for the 5th respondent and also perused the materials available on record.
7. There is no dispute that the 5th respondent school was given grant-in- aid for standards 6 to 10 from 1.6.1988 and the petitioner worked as Physical Education Teacher from 1.6.1988 to 6.10.2004.
8. It is seen that in W.P.No.2681 of 2002, dated 02.7.2002, the learned Single Judge of this Court, in similar circumstances, directed the authorities concerned, to consider the question of sanction of P.G. Assistant (Botany) post, approval of the appointment and payment of salary keeping in view the observations made in Church of South India v. The Government of Tamil Nadu, reported in 1988 Writ Law Reporter 130 and necessary orders be passed by the Secretary, School Education Department within a period of three months from the date of communication of the order.
9. On a perusal of the typed set of papers, it is seen that on 28.1.2003, the fourth respondent addressed a letter to the third respondent recommending sanction of Physical Education Teacher and Junior Assistant post to the 5th respondent school, as till 30.8.2002, the students strength was 531. In turn, by a letter dated 20.2.2003, the Chief Educational Officer, Tirunelveli forwarded the proposal to the Director of School Education. However, no order has been passed by the Director of School Education in that behalf.
10. It is to be noted that at the relevant date of recommendation, the petitioner was working as Physical Education Teacher in the 5th respondent school and on 3.7.2004, she had submitted a representation.
11. The order impugned was passed by the second respondent based on the representation of the petitioner dated 03.7.2004. It is seen from the impugned order, while passing the order, the second respondent has not considered the representation in a proper perspective. The second respondent has passed the impugned order without hearing the petitioner and had passed one line order stating that since the petitioner was not working in a sanctioned post, it was not possible for them to approve her appointment.
12. It is the bounden duty of the second respondent to pass a detailed and/or reasoned order that too after hearing the petitioner. In the present case, admittedly, the second respondent has failed to do so. On the sole ground, the impugned order is liable to be set aside.
13. In Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa (2), reported in (2009) 4 SCC 299, the Hon'ble Supreme Court held:
"35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity.”
14. The aforesaid decision is squarely applicable to the case on hand.
In a catena of decisions, the Hon'ble Supreme Court and this Court, time and again reiterates that the order passed without hearing the party concerned is nullity in law. Admittedly, in the case on hand, the petitioner was not heard by the second respondent before passing the impugned order. Therefore, the impugned order is liable to be quashed.
15. In the result,
(i) The writ petition is allowed and the impugned order of the second respondent in M.M.No.67106/D3(4)/04, dated 27.7.2004 is quashed.
(ii) The matter is remanded to the second respondent viz., the Director of School Education, Chennai, to consider the claim of the petitioner and pass orders on merits and in accordance with law and in the light of the recommendations made by the respondents 3 and 4 and also after hearing the petitioner, within a period of three weeks from the date of receipt of a copy of this order.
(iii) No costs. Consequently, connected miscellaneous petition is closed.
21.09.2017 vs Note:Issue order copy on 07.01.2019 Index : Yes Internet : Yes To
1. The Secretary, School Education Department, Fort St. George, Chennai – 9.
2. The Director of School Education, College Road, Chennai-6.
3. The Chief Educational Officer, Tirunelveli District, Tirunelveli- 9.
4. The District Educational Officer, Tirunelveli District, Tirunelveli.
M.V.MURALIDARAN, J.
vs W.P.No.9857 of 2005 21.09.2017