The above writ petition is filed for issuance of a Writ of Certitiorarified Mandamus, to call for the records relating to the impugned proceedings issued by the 2nd respondent / District Elementary Educational Officer, in Na.Ka.No.1869/Aa3/2015, dated 22.07.2015 and quash the same and further direct the second respondent / District Elementary Educational Officer to approve the appointment of petitioner as B.T. Assistant (Science) in the fifth respondent school forthwith, with effect from the date of her appointment i.e., 07.09.2009 and to disburse the grant-in-aid towards her salary and other attendant benefits.
2.The brief facts as stated by the petitioner in the affidavit filed in support of the writ petition are as follows:
2.1.One post of Secondary Grade Teacher in the fifth respondent school, fell vacant on 02.06.2009, due to the promotion of then incumbent one Tmt.N.Jebakani Chelladurai, as Head Mistress of the school. The fifth respondent appointed the petitioner in the said vacancy as B.T. Assistant (Science) on 07.09.2009. The fifth respondent submitted a proposal to the second respondent through the third respondent on 20.11.2009, for approving the appointment of the petitioner as B.T.Assistant in Science. However, the third respondent returned the proposal, without forwarding the same to the second respondent, by proceedings dated 09.12.2009, with a direction to the fifth respondent to produce certain documents in relation to the promotion of then incumbent as Head Mistress.
2.2.The fifth respondent once again submitted the proposal along with necessary documents on 10.06.2010. The second respondent returned the proposal by proceedings dated 15.07.2010, seeking further clarification. In the proceedings, dated 15.07.2010, the second respondent asked as to how the post was filled up without obtaining necessary orders for the conversion of post from Secondary Grade to B.T. Assistant and to explain as to how the B.T. Assistant teacher was appointed in the post of Secondary Grade Teacher. However the second respondent, orally instructed the fifth respondent school to issue a fresh appointment order appointing the petitioner as B.T. Assistant (Science), in yet another vacancy in the post of B.T. Assistant, caused by the termination of one Tmt.T.Jeyarani.
2.3.It was thereafter, fresh appointment order was issued by the fifth respondent, appointing the petitioner as B.T. Assistant, on 19.07.2010. The second appointment order was purely at the instance of the second respondent and that thereafter, the fifth respondent submitted a detailed reply reiterating the appointment of the petitioner with effect from 07.09.2009 and the fifth respondent requested the second respondent to approve the appointment of the petitioner with effect from 07.09.2009. However, the second respondent did not pass any order.
2.4.In the meanwhile, the said Tmt.T.Jeyarani, filed a writ petition in W.P.(MD) No.10092 of 2009, challenging the order of termination issued by the fourth respondent and for reinstatement. However, the said writ petition was withdrawn on 10.02.2012, and the said Tmt.T.Jeyarani, has given an undertaking to the effect that she resigns her job with effect from 07.11.2006. The resignation was also approved by the second respondent by order dated 04.06.2013.
2.5.However, the third respondent compelled the school to issue a fresh appointment order appointing the petitioner in the vacancy caused by the resignation of Tmt.T.Jeyarani, so that the petitioner can be accommodated in the said vacancy. Hence, the management, namely, the fifth respondent issued yet another appointment order appointing the petitioner as B.T. Assistant (Science) with effect from 17.02.2012. A fresh proposal was also submitted by letter dated 27.02.2012.
2.6.Thereafter, the third respondent returned the proposal to resubmit the same along with approval granted for the resignation for Tmt.T.Jeyarani. Even while resubmitting the proposal, the fifth respondent requested the second respondent to grant approval with effect from 19.07.2010. However, once again, the third respondent returned the proposal by proceedings dated 18.08.2014, raising some queries. Since, queries were made ignoring the proceedings showing the original date of appointment in the year 2009, the fifth respondent submitted a detailed reply for each queries with supportive documents and the earlier proceedings of the Educational Authorities. However, the second respondent without considering the reply which was submitted earlier, by the fifth respondent, passed the impugned order on 22.07.2015, reiterating the reasons which were found in the queries and without applying his mind on the explanation offered. In these circumstances, the petitioner has filed the above writ petition.
3.The petitioner has raised several grounds. First of all, it is submitted that the order of the second respondent is contrary to law, as it was passed without considering the admitted facts and the reply given by the fifth respondent earlier. Since the Secondary Grade Teacher post has to be filled up only by B.T. Assistant, as per G.O. Ms. No.79, (Education Department), dated 14.06.2002 and the fifth respondent is a Minority Institution, it was contented that no prior approval from the department is required for conversion or upgradation of the post of Secondary Grade Teacher into B.T. Assistant.
4.Yet another post of B.T. Assistant in the fifth respondent fell vacant, due to the resignation of one Tmt.T.Jeyarani, with effect from 07.11.2006. Since, the said teacher never worked from 2006 and the writ petition was dismissed as withdrawn with an undertaking that her resignation may be accepted with effect from 2006, it was contended by the petitioner that the second respondent's order rejecting the application for approval is liable to be quashed on the admitted facts.
5.It is further contended that the petitioner's appointment in the year 2009, was against the sanctioned vacancy and that therefore the second respondent is bound to approve the same. One of the reason found in the order of the second respondent to reject the application was with reference to the eligibility of the petitioner, stating that she need to be qualified in TET as her appointment was made after 23.08.2010, when the notification of Central Government came. Since, the petitioner is working continuously with effect from 07.09.2009, without any break, the approval cannot be denied and therefore the impugned order is liable to be quashed for the aforesaid facts.
6.A detailed counter affidavit was filed by the second respondent. In the counter affidavit, the second respondent, inter alia justified the impugned order in the following lines:
(a)The appointment of the petitioner was not accepted by the department and the same was rejected on 08.01.2010. The petitioner was appointed originally in the post of B.T. Assistant (Science). The Secondary Grade Teacher post, which fell vacant was not converted into B.T. Assistant post legally and that therefore, the original appointment in the year 2009, is invalid.
(b)Though, Tmt.T.Jeyarani, remained absent from 2006, her resignation was not approved by the department. The writ petition filed by her was also withdrawn only on 10.02.2012. Hence the petitioner cannot be appointed in the vacancy of Tmt.T.Jeyarani, in the year 2010.
(c)For the petitioner, three appointments were made. The first appointment was made without conversion of post. The second appointment was made in the vacancy of another teacher, whose resignation or termination was approved only in the year 2013.
(d)The second respondent also pointed out that the appointment of the petitioner was made by one Mr.Nachathiraraj, in the year 2010 is invalid, since Mr.Balashakthiya Moorthy was the President during that time.
7.Having regard to the specific stand taken by the respondents, this Court is bound to consider, whether the appointment of the petitioner in the year 2009, is valid or not. The appointment of the petitioner with effect from 07.09.2009, is termed illegal by the respondent only on the ground that the appointment was made in the vacancy of the then incumbent, who was holding the post of Secondary Grade Teacher and that no prior permission was obtained for conversion of Secondary Grade Teacher into B.T. Assistant.
8.In this regard, it is relevant to refer to the three Government Orders. As per G.O.(Ms)No.79 (Education Department), dated 14.06.2002, the post of Secondary Grade Teacher, should be filled up by B.Ed., qualified teachers, who will be called as Middle Graduate Teachers. As per the G.O.(Ms) No.100 (Education Department), dated 27.06.2003, it was directed that the post of Secondary Grade Teacher should be filled up by Graduate Assistant, subject wise, for classes 6 to 8 and that the Secondary Grade Teacher will be appointed only for classes 1 to 4. Once again G.O.(Ms) No.144 (School Education), dated 04.01.2008, directing that whenever a permanent vacancy arises in the post of Secondary Grade Teacher for classes 6 to 10, the post should be converted as Graduate Teacher for the required subject and that such subject in which the post was converted cannot be changed for any reason.
9.From G.O.(Ms) No.79 (Education Department), dated 14.06.2002 and G.O.(Ms) No.100 (Education Department), dated 27.06.2003, it can be seen that the Government has taken a policy decision to upgrade the post of Secondary Grade Teacher to Graduate Teacher (B.Ed qualification) (B.T.Assistant). From the reading of the two Government Orders, it can be seen that the post of Secondary Grade Teacher for classes 6 to 8 should be treated as extinct as and when the teachers who were working in the said post retire. There is no scope for appointing another Secondary Grade Teacher, after retirement of Secondary Grade Teacher working in classes 6 to 8. It is not in dispute that the post in which the petitioner was appointed is the post in which the Headmistress was holding before her promotion.
10.The learned counsel for the petitioner submitted that insofar as the minority institutions are concerned, no prior permission is required for conversion or upgradation. It was further submitted that the respondent has not pointed out any irregularity or irrationality in the appointment of the petitioner in the post of B.T. Assistant (Science). However it is the discretionary power of the minority institutions, to appoint teachers on the basis of necessity and that therefore there is no violation of any Government Orders.
11.The learned counsel for the petitioner relied upon a judgment of this Court in the case of Correspondent, Britannia Higher Secondary School, Chennai, vs State of Tamil Nadu and others reported in (2007) 2 MLJ 760, wherein the learned Single Judge of this Court held that the denial of approval on the ground that subject roaster is not maintained in respect of appointment of Middle Grade Graduate Teacher is in violation of the provisions of the Act.
12.The learned counsel for the petitioner also relied upon the judgment of this Court in the case of S.Rasheetha Banu vs State of Tamil Nadu and others reported in (2012) 4 MLJ 198, wherein, it has been held that if a person is appointed in a sanctioned post, the approval of the appointment cannot be rejected.
13.The view of this Court in the judgment reported in (2007) 2 MLJ 760, is also approved by the Division Bench of this Court in W.A.(MD) No.716 of 2014, dated 04.04.2017, in the case of State of Tamil and others vs The Correspondent, St.Thomas Higher Secondary School, Pudukottai.
14.The learned counsel for the petitioner further relied upon the judgment of this Court in the case of The Corporate Manager, CSI Corporate Schools, CSI Diocese of Kanyakumari vs The State of Tamil Nadu reported in 2006 (5) CTC 504, wherein this Court has held that the instructions directing the management to follow subject wise roaster, while filling up the vacancies of teachers, is liable to be quashed.
15.When the proposal for the appointment was returned, the third respondent did not point out any irregularity in the appointment even though the third respondent was fully appraised of the facts.
16.It is relevant to refer to the reasons for returning the proposal of the third respondent in proceedings dated 09.12.2009, for convenience:
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17.From the above, it is very clear that the Education Department has not raised objection for appointing the petitioner in the post of B.T. Assistant, even though the third respondent knew that the petitioner was appointed in the place of then incumbent, who was holding the post of Secondary Grade Teacher and become the Headmistress of the same school.
18.The learned counsel for the petitioner referred to the sanctioned strength approved to the fifth respondent school. Hence, this Court does not find any irregularity in the appointment of the petitioner, in the year 2009 and the petition seeking approval for the appointment with effect from 07.09.2009.
19.When the third respondent returned the proposal by communication dated 18.08.2014, pointing out some defects, the fifth respondent submitted a detailed representation, dated 24.02.2015, meeting the defects point by point. The proposal was resubmitted and thereafter, the impugned order has been passed by the second respondent, refusing to approve the appointment of the petitioner either with effect from 07.09.2009 or with effect from 19.07.2010. The brief facts referred to above, would disclose the facts that the appointment of the petitioner in the year 2009, is against the sanctioned vacancy and that the petitioner was fully qualified to hold the post in which she was appointed in the year 2009.
20.The appointment has to be made in a sanctioned post and which is required and the teacher who was appointed is entitled to salary and other benefits. The reason stated by the second respondent in the counter affidavit is that the proposal for approval of appointment in the year 2009, was rejected in the year 2010 because, the secondary grade post was not converted into B.T. Assistant. The conversion of the post is only for administrative convenience and cannot affect the substantive right of person, who was appointed only in the post, which cannot be filled up by anyone except by a B.T. Assistant.
21.The contention of the second respondent is that the proposal was rejected on 08.01.2010, is not substantiated by any material. By communication dated 09.12.2009, the third respondent returned the proposal. It is not in dispute that the proposal was resubmitted. Once again the fifth respondent approached the second respondent for upgrdation of Secondary Grade Teacher into Graduate Teacher, so as to accommodate the petitioner, by communication dated 10.06.2010. Even this was returned by the second respondent on the ground that the appointment of the petitioner in the post of Graduate Teacher (Science) without getting orders for upgrdation of post is against the Government Orders. Hence it cannot be accepted that an order was passed on 08.01.2010, earlier, rejecting the proposal for the appointment of the petitioner with effect from 07.09.2009. Since it is held that the petitioner's appointment with effect from 07.09.2009, is proper and valid, the second respondent ought have granted approval for the appointment of the petitioner with effect from 07.09.2009.
22.Going by the facts, it is true that the fifth respondent management has given three appointments to the petitioner. The appointment for the petitioner on 07.09.2009 was never withdrawn. From the correspondence between the management and the Educational Authorities, it is seen that the proposal for approval of appointment was returned only on technical ground. The contention of the petitioner that only at the instance of Educational Authorities, subsequent orders of appointments were issued and that the querries raised for giving approval to the appointment are unreasonable and untenable, cannot be ignored. Since the subsequent orders of appointment were issued only at the instance of Educational Authorities, the reason found in the impugned order to reject the application for approval cannot be sustained.
23.The second respondent in the impugned order has raised some doubts regarding the appointment of the petitioner, referring to the authority of the fourth respondent to give appointment to the petitioner in the year 2010. First of all, when there is no rival claim, this kind of doubts cannot be entertained, after several years and it will cause serious prejudice to the petitioner or any other person who is similarly placed. Secondly, even the second respondent has not raised any doubt as regards the authority of the fourth respondent, when the petitioner was appointed in the year 2009, by the first order.
24.Though the judgments cited by the learned Counsel for the petitioner, are only in relation to the Government orders on subject wise roaster before making appointment, it is to be noted that the Government Orders on upgradation of post is not violated in this case. Even otherwise, on merits, this Court is not able to appreciate the reason for returning the proposal, which was submitted by the fifth respondent, seeking approval for the appointment of the petitioner with effect from 07.09.2009.
25.Hence, having regard to the contents of the order of the second respondent, which is impugned, this Court is not in a position to sustain the same, especially this Court finds that there is total non application of mind with regard to the correspondence between the management and the Educational Authorities, right from the date of appointment of the petitioner in the year 2009. It is not in dispute that the petitioner was appointed in the Minority institution, the eligibility of the petitioner that she did not possess T.E.T., cannot be a ground, even if she was appointed after the crucial date. In this case, the petitioner was appointed on 07.08.2009 and that therefore, under any circumstance, the petitioner's eligibility cannot be questioned.
26.For the above reasons, the Writ Petition stands allowed. The impugned order passed by the second respondent dated 22.07.2015, is set aside and consequently the second respondent is directed to approve the appointment of the petitioner as B.T. Assistant (Science), forthwith, in the fifth respondent school with effect from 07.09.2009 and to disburse the grant in aid towards her salary and other attendant benefits within a period of six months from the date of receipt of copy of this order. No costs. Consequently, the connected Miscellaneous Petitions are closed.
To
1.The Director of Elementary Education, College Road, Chennai ? 600 006.
2.The District Elementary Educational Officer, Ramanathapuram District.
3.The Additional Assistant Elementary Educational Officer, Kamuthi, Ramathapuram District ? 623 603.
4.The Chairman, Educational Board, Tamil Evangelical Lutheran Church (TELC), Tranquebar House, Tiruchirapalli.
5.The Correspondent, T.E.L.C. Middle School, Aranmanaimedu, Kamuthi ? 623 603, Ramanathapuram District.
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