The prayer in the writ petition is for a writ of mandamus directing the first respondent to approve the appointment of the petitioner as Secondary Grade Teacher with effect from 15.04.1998 in the 4th respondent school with all consequential benefits.
2. The petitioner is having qualification of B.A and B.Ed. With these qualifications, the petitioner was appointed as Secondary Grade Teacher on 15.04.1998 in a sanctioned vacancy, pursuant to the existing teacher, one Mrs. R.A.Jokiyam's resignation on 17.06.1993. The said appointment was made to the petitioner of course, pursuant to the permission granted by the second respondent vide his proceedings dated 11.09.1995. Since the said vacancy arose, wherein the petitioner was appointed is a vacancy meant for SC candidate, and the petitioner being the SC candidate, had been appointed after getting report from the concerned employment exchange that no other SC candidate with the qualification was available. After the appointment, though the fourth respondent school had sent proposals to approve the said appointment of the petitioner at the fourth respondent school, to the official respondents, the same has not been approved. In fact, the proposal was returned on the ground that the petitioner since had been qualified with a qualification of B.A and B.Ed degree and she is not having the qualification of Diploma in Teacher Education, which is specialized education for teachers to hold the post of Secondary Grade Teacher.
3. The returning of the proposal of the appointment of the petitioner by the official respondents, is mainly based on G.O.Ms.No.559, School Education Department, dated 11.7.1995. As per the said G.O, those who did not have the qualification for Secondary Grade Teacher were not supposed to be appointed as Secondary Grade teacher and those, who are having the qualification of B.Ed degree can also not to be appointed as Secondary Grade Teacher.
4. In the meanwhile, the sustainability of the said G.O.Ms.No.559 was challenged before this Court. This Court, ultimately by a Division Bench order in the batch of writ appeals and writ petitions in W.A.Nos.991 to 998 of 1998 etc., batch by order dated 29.06.2001, though upheld the validity of the said G.O, had given a direction that those with a qualification of B.Ed, who had been appointed as Secondary Grade Teacher, shall be sent for one month child psychology training and after they successfully completing the training, their appointment in the Secondary Grade Teacher posting shall be approved.
5. Though such a direction was given by the Division Bench as referred to above, the petitioner had not been immediately sent for training of child psychology.
6. In the meanwhile, the teacher pupil ratio of the fourth respondent's school, time and again, had been checked up by the official respondents and every time when the inspection is carried out by the official respondents, reports have been brought and all these reports disclose a fact that the petitioner from the date of appointment has been continuously working. Inspite of all these factors, since the petitioner's appointment neither has been approved nor she has been sent for child psychology training, the petitioner could not get the salary, even though she has been continuously working, that too in a sanctioned post. Therefore, the petitioner has approached this Court by way of the present writ petition seeking for a writ of mandamus.
7. Mr. S.N.Ravichandran, the learned counsel appearing for the petitioner would submit that, in fact the fourth respondent school was having seven teachers post whereas out of the seven, one Secondary Grade Teacher post fell vacant because of the resignation of one R.A. Jokiyam from 17.6.1993. As per the roster, the said post has to be filled up only by SC candidate. The fourth respondent school has requested for eligible candidates from employment exchange, since a report to that effect has been given by the employment exchange that no suitable candidates are available, the petitioner's candidature has been considered by the fourth respondent and the petitioner since having a qualification of BA degree and B.Ed degree, she was selected and appointed to the said post of Secondary Grade Teacher on 15.4.1998 by the fourth respondent Management and from that day onwards, the petitioner has been continuously working without any break.
8. Even though the proposal sent by the fourth respondent was returned, because of G.O.Ms.No.559, atleast after the Judgment rendered by the Division Bench on 29.06.2001, the petitioner should have been immediately sent for child psychology training, which the respondents have failed to extend to the petitioner.
9. Thereafter, the petitioner had approached the National Commission for Scheduled Castes, for redressal of her grievances that inspite of the earlier order passed by this Court, pursuant to which though several similarly placed persons have been sent for child psychology training, the petitioner had not been sent for such training for years together.
10. The National Commission for Scheduled Castes after having considered the grievances of the petitioner seems to have directed the first respondent to make immediate remedial measures for sending the petitioner for such training.
11. The learned counsel for the petitioner would also submit that only pursuant to the intervention of National Commission for Scheduled Castes, the first respondent had issued proceedings dated 11.08.2016, whereby the petitioner had been directed to undergo one month child psychology training from 27.08.2016. Pursuant to the said communication of the first respondent, on the same day, the Director of Teacher Education Research and Training had also issued proceedings permitting the petitioner to go for a child psychology training from 22.08.2016. Accordingly, as per the further proceedings of the third respondent dated 19.08.2016 and also the proceedings of the second respondent dated 19.08.2016, the petitioner had been sent for child psychology training from 22.08.2016. The said training, the petitioner had successfully completed on 05.10.2016 and a certificate to that effect had also been issued on 05.10.2016 by the Principal, District Institute of Education and Training, T.Kallupatti, countersigned by course co-ordinator. Therefore, the learned counsel appearing for the petitioner would submit that the only impediment which stood in between the petitioner and the official respondents for approval of her appointment since had been removed and the petitioner also has completed the child psychology training, the respondents cannot further withhold the approval of the petitioner's appointment at the fourth respondent school as Secondary Grade Teacher.
12. Mr.P.Godson Swaminath, the learned counsel appearing for the fourth respondent would also submit that the vacancy where the petitioner was appointed as Secondary Grade Teacher is meant for SC candidate, since no SC candidate was available in the employment exchange at that time, as per the report submitted by the District Employment Officer, the petitioner had been appointed on 15.4.1998 as Secondary Grade Teacher in a sanctioned vacancy which became vacant due to the resignation of the erstwhile incumbent. In this regard, the learned counsel appearing for the fourth respondent would invite the attention of this court to the averments made in the counter affidavit filed by them which reads thus:
(iii) One among the 6 Secondary Grade posts fell vacant on 18.06.1993 due the resignation of Tmt. Johim on 17.06.1993. Her resignation and relieving were approved by the 2nd respondent DEEO vide proceedings dated 15.04.1994. The DEEO permitted to fill up the vacancy vide proceedings dated 11.09.1995. It appears that the then Secretary of this respondent school requested the District Employment Officer to send the list of eligible candidates for filling up the post under Scheduled Caste category, and the District Employment Officer informed that no candidates were available in the register.
(iv) This respondent school waited for candidates under Scheduled Caste, but could not get any one. Meanwhile, the State Government ordered to approve the appointment of Graduate teachers against Secondary Grade posts which were made before 11.07.1995 vide G.O.Ms.No.203 (Education) dated 19.03.1996. Earlier, the Government had ordered not to approve the appointment of Graduate teachers in Secondary Grade vacancies vide G.O.Ms.No.559 (School Education dated 11.07.1995.
13. The learned counsel for the fourth respondent would also rely upon G.O Ms.No. 301, School Education Department dated 15.10.1999. The learned counsel for the fourth respondent would heavily rely upon paragraph 2 of the said G.O which reads thus:
2/ bjhlf;ff;fy;tp ,af;Fehpd; fUj;JUtpid muR ed;F ghprPypj;jJ/ jhH;j;jg;gl;l kw;Wk; gH';FoapdUf;fhd ,dthhp RHw;rp Kiwg;go ,ilepiy Mrphpah;fis mkh;j;j nghJkhd ehLeh;fs; ntiytha;g;gf gl;oaypy; fpilf;fhj epiyapy;. me;j fhyp ,ilepiy Mrphpah; gzpapl';fspy; jFjp bgw;w ntiytha;g;gf fhj;jpUg;nghh; gl;oaypYs;s Mjpjpuhtplh; kw;Wk; gH';Foapdh; ,dj;ijr; rhh;e;j gl;ljhhp Mrphpah;fisf; bfhz;L epug;g[tjw;F cah;ePjpkd;wk; kw;Wk; jkpH;ehL eph;thf jPh;g;ghaj;jpy; Miznah my;yJ jilahiznah ,y;yhj epiyapy; cs;s ,l';fspy; fPH;f;fz;l epge;jidfSf;Fl;gl;L mDkjp tH';fp muR MizapLfpwJ/
m) ntiytha;g;g[ mYtyfj;jpypUe;J ehLeh;fs; ,y;iy vd;w mj;jhl;rpg; bgwg;gl ntz;Lk;/ M),t;thW ,ilepiyahrphpah; gzpapl';fspy; gzp epakdk; bra;ag;gLk; Mjpjpuhtplh; kw;Wk; gH';Foapdh; ,dj;ijr; rhh;e;j gl;ljhhp Mrphpah;fSf;F ,ilepiy MrphpaUf;Fhpa Cjpa tpfpjk;jhd; tH';fg;gLk;/ ntbwe;j rpwg;g[ rYifa[k; mspf;fg;glkhl;lhJ/ ,)cah;f;fy;tpj; jFjpf;fhd rpwg;g[ Cjpa cah;t[ tH';Fk; jpl;lk; ,th;fSf;Fg; bghUe;jhJ/ <)nkny Twg;gl;Ls;s epge;jidfsl';fpa cWjpbkhHp rhd;W rk;ge;jg;gl;l Mrphpah;fsplkpUe;J bgwg;gl ntz;Lk;/ nkw;fz;lthW Mrphpah;fis epakdk; bra;tjw;F Kd;mth;fsJ brhe;j brytpy; rk;ge;jg;gl;l khtl;lf; fy;tp kw;Wk; gapw;rp ika';fspy; FHe;ij kdepiy Fwpj;J xU khj gapw;rp bgw;W me;j epWtd Kjy;th;fshy; gapw;rp epiwt[ bra;tjw;fhd rhd;wpid Kd;dpiyg;gLj;j ntz;Lbkdt[k; mwpt[Wj;jg;gLfpwJ/
14. By quoting the said G.O, the learned counsel for the fourth respondent would submit that once the Government has come forward to issue the G.O enabling the appointing authorities to make appointment to fill up the post of Secondary Grade Teacher which is earmarked for SC candidates with the qualification of B.Ed degree in case no suitable candidates with the qualification of diploma in teacher education or other specialized qualification for the post of Secondary Grade Teacher is available, the stand now taken by the official respondents in refusing to approve the appointment of the petitioner, in spite of the fact that here also there is no suitable candidates available as per the report of the District Employment Officer, is totally unjustifiable
15. The learned counsel for the fourth respondent would also submit, on instructions, that from the date of appointment the petitioner has been continuously working at the fourth respondent school without any break. Therefore, she is entitled to get approval, in view of the completion of child psychology training, from the date originally she was appointed i.e., from 15. 04. 1998
16. Per contra Mr. A.Zakir Hussain, the learned Government Advocate appearing for the official respondents would submit that even though the petitioner had been appointed in the year 1998 in the sanctioned vacancy, for which permission was given by the official respondents, the said permission was given on 11.9.1995 whereas the appointment had not been made till 1998 and nearly after lapse of three years she was appointed only on 15.4.1998. In this regard the learned Government Advocate would rely upon para 3 of the counter affidavit which reads thus:
It is submitted after appointment the petitioner kept mum and after repeated reminders, the 4th respondent school submitted in his letter dated 11.4.2003, that no teacher appointed before 19.5.98 was continuously working as on 11.4.2003. Contrary to this statement, the 4th respondent school has informed to the 2nd respondent that the petitioner was working in the School from 15.4.98. Thus, the 4th respondent school and the petitioner are submitting false representation to achieve their ends for undergoing the child psychology training as if the appointment made was regular and as Per rules
17. The learned Government Advocate would also submit that, during the period, after the appointment having been made in respect of the petitioner, at one point of time, the recognition of the petitioner's school was cancelled, even though subsequently it got restored. During the period where the recognition was not available with the petitioner's school neither the fourth respondent nor the petitioner did not make any claim for approval with continuity of service.
18. The learned Government Advocate would also submit that insofar as the G.O Ms.No. 301 dated 15. 10. 1999 is concerned that was issued only to give benefit to the SC candidates only in the contingencies where there is no suitable candidates available in that category. In this regard, the learned Government Advocate would heavily rely upon four conditions given in paragraph 2 of the said G.O. Ms.No. 301 which has already been extracted here in above. The said G.O issued only to meet out the said contingencies. Therefore, it cannot be equated with the situation where the fourth respondent school instead of going for thorough checking, by calling applications from the open market by giving advertisement, had simply appointed the petitioner, by merely saying that the District Employment Officer has given a report to that effect. Hence, this cannot be accepted, as the situation envisaged at G.O.Ms.No.301 was not available with the fourth respondent school at the time of appointment of the petitioner.
19. The learned Government Advocate would also submit that at any rate since the petitioner admittedly, has completed the child psychology training only on 5.10.2016, if at all she makes any claim for approval she may be eligible to seek such an approval only from that date i.e., from the date she completed the child psychology training. Therefore the learned Government Advocate submitted that at any rate the present prayer sought for by the petitioner to approve her appointment from the original appointment that is from 15.4.1998 cannot be countenanced and therefore, the same is liable to be rejected.
20. This Court has considered all the said rival submissions made by the learned respective counsel appearing for the parties.
21. It is not in dispute that the fourth respondent is an aided recognised School. It is also not in dispute that the Secondary Grade Teacher post fell vacant from 17.06.1993 at 4th respondent school because of resignation of one Mrs.R.A.Jokiam. The said post is earmarked for SC candidate and that fact is also not in dispute.
22. As per the averment made in the counter affidavit filed by the fourth respondent, as has been pointed out by the learned Counsel for the fourth respondent, the fourth respondent Management after having obtained report from the District Employment Officer to the effect that there is no suitable candidate in SC community available for the post, the petitioner has been selected and appointed as Secondary Grade Teacher on 15.04.1998.
23. Though at the time of such appointment, G.O.Ms.No.559 was already in force, which, prohibits appointments to Secondary Grade Teacher posting with the qualification of B. Ed degree without the qualification of Diploma in Teacher Education with child psychology, the said issue has been settled by the decision of the Division Bench judgment referred to above. According to the said decision, those who had already been appointed with B.Ed qualification in Secondary Grade posting can be absorbed, of course after sending them for one month successful training in child psychology. Though the said order was passed by the Division Bench of this court as early as on 29.6.2001, and during that period the petitioner also had been working at the fourth respondent school and a number of persons similarly placed like that of the petitioner had been sent for such training, the petitioner had not been sent for child psychology training for the reasons best known to the official respondents.
24. As has been rightly pointed out by the learned counsel appearing for the petitioner, only on the intervention of National Commission for Scheduled Castes, the first respondent has come forward to issue proceedings dated 11.8.2016 whereby the petitioner had been permitted to go for training. Only thereafter, consequential proceedings were issued by the second and third respondents and the petitioner was sent for such training from 22.8.2016 and she has successfully completed the same on 5.10.2016. A certificate to that effect also has been issued by the Principal of the District Institute of Education and Training concerned.
25. Therefore, these factors are not in much controversy. Whether the petitioner, who had been appointed on 15.4.1998 with the qualification of B.Ed degree and without the qualification of Diploma in Teachers Education course in the post of Secondary Grade teacher, can be approved, in spite of G.O.Ms.No. 559, since has been already answered by this Court in the above referred Division bench Judgment of this court, those aspect once again need not be gone into at this stage.
26. It is also ascertained by the learned counsel for the fourth respondent that the petitioner, since the date of appointment, has been continuously working at the fourth respondent school without any break. These factors would go to show that the petitioner has been continuously working in the fourth respondent school from the date of original appointment i.e 15.4.1998 as Secondary Grade teacher and the said post in fact is a sanctioned post, and permission was also given by the official respondents to fill up the said post. The only impediment of lack of child psychology training, since has also been fulfilled by the petitioner at least now, of course, with the intervention of the National Commission for Scheduled Castes, there can be no further plausible reason or any other impediment for thwarting the process of approval of the appointment of the petitioner. In these circumstances this Court is of the considered view that the petitioner is entitled to get approval of her appointment.
27. At this juncture the learned counsel appearing for the petitioner would also rely upon yet another Government Order in G.O.Ms.No. 122 Adi Dravidar and Scheduled Tribes Department dated 2.8.2005. The import of the said G.O has been mentioned at paragraph 7 of the order which reads thus:
nkw;fhdqk; NH;epiyapy; Mjpjpuhtplh; ey ,af;Fehpd; braw;Fwpg;gpid muR jPu ghprPyid bra;J. Mjpjpuhtplh; kw;Wk; gH';Foapdh; eyg;gs;spfspy; gl;ljhhp Mrphpah; jFjpbgw;W ,ilepiy Mrphpah;fshf gzpepakdk; bgw;W gzpg[hpe;J tUk; egh;fSf;F mth;fs; FHe;ijfs; kdey gapw;rpia Koj;j gpd;dh; mth;fs;. mg;gjtpapy; gzpnaw;wehs; Kjy; gzptud;Kiw bra;a muR MizapLfpwJ/
28. By quoting the said Government Order, the learned counsel would submit that in respect of the Adi Dravidar Welfare Department, if appointment had been made in Adi Dravidar schools with B.Ed qualification in Secondary Grade postings, their appointment can be approved, of course, after they successfully complete the child psychology training, from the date on which originally they got appointed. By relying upon the said judgment, the learned counsel appearing for the petitioner would submit that the same analogy can also be applied in the present case also. Not merely because the petitioner belongs to Scheduled Caste community, but also for the logic behind the said G.O. issued therein, where, even though the child psychology training has been successfully completed subsequently, the approval should date back from the original date of appointment.
29. This court finds force with the said submission made by the learned counsel for the petitioner as in this case also the petitioner had been appointed in the year 1998 since then had been continuously working in the fourth respondent school that too in a sanctioned vacancy and after great struggle the petitioner also had completed the child psychology training, hence she would be entitled to get the approval of her appointment from the date of her original appointment i.e .from 15.4.1998.
30. In the result, the writ petition is allowed. The official respondents are directed to approve the appointment of the petitioner as Secondary Grade Teacher at fourth respondent school from 15.4.1998. It is needless to mention that in view of the approval to be given to the petitioner's appointment from 15.4.1988, the petitioner shall be entitled to claim all service benefits including salary from that date and the said benefits shall be calculated and given to the petitioner within a period of 12 weeks from the date of receipt of a copy of this order.
31. With this direction, this writ petition is allowed. No costs.
22.03.2017 Index : Yes Internet : Yes kua To
1. The Director of Elementary Education, College Road, Chennai-600 006.
2. The District Elementary Educational Officer, Madurai District, Madurai.
3. The Secretary Chandra Middle School, Melannuppanadi, Sector VI Housing Board, Madurai-625 009.
R.SURESH KUMAR,J.
kua W.P.No.18229 of 2008 22.03.2017 http://www.judis.nic.in