BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 12/08/2011 Coram THE HONOURABLE MR. JUSTICE VINOD K. SHARMA Writ Petition(MD)No.10248 of 2008 Tmt. S. Pappa, 9, Nallamadai Konar Street, IIIrd Main Road, Mamsapuram, Srivilliputhur Taluk, Virudhunagar District. ...... Petitioner Vs 1. State of Tamil Nadu, represented by its Secretary to Government, School Education Department, Secretariat, Chennai - 9. 2. Director of Elementary Education, Chennai - 6. 3. District Elementary Educational Officer, Virudhunagar, Virudhunagar District. 4. Sivanthi Vinayagar Primary School, rep. by its Secretary, Mamsapuram, Srivilliputhur Taluk, Virudhunagar District. 5. M. Vairamuthu, 31-A, Main Road, Mamsapuram, Srivilliputhur Taluk. Virudhunagar District. ...... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in G.O.(4D)No.2, School Education Department, dated 20.09.2008 and the consequential order passed by the third respondent in his proceedings Na.Ka.No.6653/B/AA2/2008 dated 17.10.2008 and quash the same, and direct the respondents to promote the petitioner as Headmistress of the fourth respondent school as per Rule 15(4) of the Tamil Nadu Recognized Private Schools (Regulation) Rules and confer all the consequential benefits. !For Petitioner ... Mr. V. Panneerselvam ^For Respondents... Ms. S. Bharathi for R-1 to R-3 Government Advocate Mr. T. Lajapathi Roy for R-4 and R-5 - - - - - - - - :ORDER
The petitioner has approached this Court, to challenge the appointment of fifth respondent, as Headmaster in Sivanthi Vinayagar Primary School, Mamsapuram, Srivilliputhur Taluk, Virudhunagar District.
2. The petitioner passed S.S.L.C., in March 1984, and Higher Secondary in April 1986. The petitioner also holds Diploma in Teacher Education in March 1988, and thereafter, joined as Secondary Grade Teacher in Sivanthi Vinayagar Primary School on 20.04.1990.
3. The Post of Headmaster of Elementary School fell vacant on 01.06.1998, on retirement of the incumbent. At that time, there were only two Secondary Grade Teachers, fulfilling the qualification of appointment, to the post of Headmaster of Elementary School, viz., Baby alias Umayal Parvathi and the petitioner.
4. The Management, by ignoring both the qualified teachers, working in the school, appointed the fifth respondent, as Headmaster on 01.06.1998.
5. It is pertinent to note here, that the fifth respondent is the son of the Secretary of Sivanthi Vinayagar Primary School, Mamsapuram, Srivilliputhur Taluk, Virudhunagar District.
6. The qualification prescribed under statutory rules for the post of Headmaster in Elementary and Middle School are as under:-
"1-A. Headmaster 1. SSLC (Elementary and Middle 2. T.S.L.C of Secondary Grade or its Schools) equivalent and
3. Should have worked as Secondary Grade Teacher in any recognized School for a period of not less than five years after obtaining the TSLC of Secondary Grade of its equivalent".
7. The qualifications, conditions of Service of Teachers and other persons is regulated by Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974.
8. Rule 15(4) reads as under:-
"15 (4) (i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
(ii) Appointments to the various categories of teachers shall be made by the following methods:-
(i) Promotion from among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method
(i) above, -
(a) Appointment 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 school ;
(c) Direct recruitment.
In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule.
(d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in clause (ii) either from the category of Headmasters of High Schools or Teachers' Training Institutes or from the category of Post Graduate Assistants in academic subjects or Post - Graduate Assistants in Languages provided they possess the prescribed qualifications".
9. The case of the petitioner, is that the fifth respondent, neither fulfilled the criteria, nor possessed the qualification prescribed under the Statutory Rules, and that his appointment was otherwise also in violation of the Statutory Rule 15(4) of the Rules, as two Teachers fully qualified were available in the School, therefore, no direct appointment could be made, otherwise also, no prior permission of the District Educational Officer was taken, before filling up the post by direct recruitment.
10. The fourth respondent, after illegally appointing the fifth respondent, as Headmaster, sought approval, from the respondent. The approval was refused, on the ground, that the requisition was not through employment exchange, and that the fifth respondent was not qualified, as he neither had academic qualification, nor necessary experience. The approval was rejected on 10.09.1999. The Appeal filed against the order of rejection was also dismissed on 10.02.2000. "Direct payment" was thereafter ordered on 29.01.2001.
11. The order of direct payment was challenged in W.P.No.2772 of 2001 by the Management, in which the stay was granted by this Court, but thereafter, the stay was vacated. The Writ Appeal filed against the order vacating stay was also dismissed.
12. The fifth respondent did not file any writ petition against the order passed by the competent authority, and Appellate Authority, refusing to grant approval to his appointment.
13. The Authorities, after direct payment order, passed an order, appointing Baby alias Umayal Parvathi, as In-charge Headmistress on 30.04.2001.
14. The order was challenged by the Management, as well as the fifth respondent, by filing W.P.No.9823 of 2001. The Stay, initially granted, was vacated. In spite of the vacation of the stay order, the fifth respondent was allowed to continue, as Headmaster, by violating the orders passed by the Educational Authorities.
15. The petitioner filed a Contempt Petition No.638 of 2002, wherein a counter Affidavit was filed by the fifth respondent, stating therein as under:-
"4. I deny the allegations in para 2 of the affidavit. I have great respect for the orders of this Hon'ble Court. I have no intention at all to disobey or flout the orders of this Hon'ble Court. As stated above, I did not continue or officiate to function as Head Master of the School in question by showing scant respect to the orders of this Hon'ble Court. The petitioner has come up with false averments in the above Contempt Petition with a view to wreck vengence against the management of the school".
16. Ms. Baby alias Umayal Parvathi retired on 31.05.2007. Thereafter, the petitioner was placed, as In charge Headmistress, being the Senior Most qualified Teacher, in the school.
17. The prayer of the petitioner for regular promotion, as Headmistress was not accepted. The petitioner, accordingly, filed W.P.No.8870 of 2007, which is pending in this Court.
18. The Government, thereafter, passed impugned G.O.(4D)No.2 School Education Department dated 20.09.2008, approving the appointment of the fifth respondent as Headmaster, which reads as under:-
"G.O.(4D) No.2 Dt.20.09.2008 School Education (B1)Department
1.G.O.No.559 Education dated 11.07.1995
2.G.O.No.155 School Education Department dated 03.10.2002
3.G.O.No. 34 School Education Department dated 17.03.2003
4.G.O.No.150 School Education Department dated 02.07.2007
5.Order Passed by the Hon'ble High Court of Madras Madurai Bench in W.P.M.P.(MD)No.1907/2005 in W.P.(MD)No. 1609 of 2006 dated 28.03.2006.
6.Letter of the Director of Elementary Education in Na.Ka.No.14669/L2/05 dated 28.01.2008 and 28.02.2008.
O R D E R :
In the vacancy arose on 01.06.1998 in the place of Elementary School Headmaster at Sivanthi Vinayagar Elementary School, Mamsapuram, Srivilliputhur Circle, Virudhunagar District which is getting Government aid Mr.M.Vairamuthu was appointed who possess the qualification of B.T.Assistant who is not having five years experience as Secondary Grade Teacher and without getting list from the employment exchange. Through letter No.10733/B1/05 dated 26.08.2005 order of rejection of approval was passed on the ground that irregular appointment was made against the regulations and he was not appointed between 11.07.1995 to 19.05.1998 as per G.O.No.34 School Education Department dated 17.03.2003. Challenging the order of rejection of approval Mr.M.Vairamuthu has filed writ petition in W.P.(MD)No.1609/2006. Hon'ble High Court by its order dated 28.03.2006 passed in W.P.M.P.(MD)No.10894 of 2005 in W.P.(MD)No.1609 of 2006 has set aside the order in Lr.No.10733/B1/05 dated 26.08.2005 and held that "In view of the order passed by this Hon'ble Court dated 28.03.2006 and made in W.P.M.P.No.1609 of 2006 in W.P.No.1907 of 2005 this W.P.No.10894 of 2005 is allowed and the impugned order passed by the first respondent dated 26.08.2005 is set aside with a direction to the first respondent to pass appropriate orders for granting exemption based on the direction given in W.P.M.P.No.1609 of 2006 in W.P.No.1907 of 2005 dated 28.03.2006."
2. Through G.O.No.559 School Education Department dated 11.07.1995 it has been ordered that as per the order of the High Court in the aided Schools in the post of Secondary Grade teacher B.T.Assistant qualified teachers shall not be appointed. Through G.O.No.155 School Education Department dated 03.10.2002 in the private schools getting aid from the Government in the post of Secondary grade teacher orders have been passed giving approval for the appointment of B.T.Assistant qualified teachers who were appointed as Secondary Grade Teachers between 11.07.1995 to 19.05.1998 subject to certain conditions based on the judgment by the Division Bench of Hon'ble High Court of Madras in the batch of Writ Appeals. Through G.O.No.34 School Education Department dated 17.03.2003 private schools (non minority) getting aid from the Government Orders have been passed giving relaxation from the condition that appointment should be made through employment exchange for the appointment of B.T.Assistant qualified teachers who were not appointed through employment exchange and who were appointed as secondary grade teachers between 11.07.1995 to 19.05.1998. Through G.O.No.155 School Education Department dated 03.10.2002 orders have been passed regularizing the appointment of secondary grade teachers who were appointed with the qualification of B.T.Assistant / Tamil Pandit by giving one month child care training. Through G.O.No.150 School Education Department dated 02.07.2007 orders have been passed approving the appointment of 22 secondary grade teachers who possess B.T.Qualification and appointed between 19.05.1998 and 29.06.2001 (the date on which Division Bench of Hon'ble High Court of Madras passed order in the writ appeals) subject to the conditions imposed through G.O.No.155 School Education Department dated 03.10.2002.
3. Through G.O.No.150 School Education Department dated 27.02.2007 based on the order of Division Bench of Hon'ble High Court dated 29.06.2001 orders have been passed approving the appointment of Secondary Grade teachers who possess B.T.qualification and appointed between 11.07.1995 and 29.06.2001 by giving one month Child Care Training by approving from the date of 01.06.1998. Director of Elementary School has requested the Government to pass orders fixing the pay scale of secondary grade teachers for five years from 01.06.1998 and after getting five years experience fixing the pay scale of elementary school Headmaster to the above teachers.
4. The Government carefully considered the recommendations of Director of Elementary Education on the basis of the order dated 28.03.2006 passed by the Hon'ble Division Bench of High Court of Madras Madurai Bench and following order is passed.
Since orders have been passed in G.O.No.150 School Education Department dated 02.07.2007 for giving approval for the appointment made between 19.05.1998 to 29.06.2001 (date on which Division Bench of Hon'ble High Court passed the order) since Mr.M.Vairamuthu has been appointed within the relevant period approval for the appointment from 01.06.1998 may be granted subject to the condition imposed in G.O.No.34 School Education Department dated 17.03.2003 and G.O.No.150 School Education Department dated 02.07.2007 and G.O.No.97 School Education Department dated 05.07.2001 that from 01.06.1998 upto getting five years experience in the pay scale of secondary grade teacher and after completion of five years experience in the pay scale of elementary school headmaster.
Monetary benefits will be granted only from the date on which orders have been passed.
This order is issued with the consent of Finance Department No.56844/Education.II/2008 dated 16.09.2008."
19. The impugned order has been challenged by the petitioner, on the ground, that it is outcome of non-application of mind, inasmuch the fifth respondent was not covered by the Judgment of this Court passed, relaxing the condition of appointment of B.T.Assistant qualified teacher.
20. As a matter of fact, the appointment of the fifth respondent was challenged, being in violation of Statutory Rule 15(4) of the Rules, and no Government Order contrary to the Statutory Rule could have been passed.
21. The Hon'ble Supreme Court in the case of RAM GANESH TRIPATHI ..VS.. STATE OF U.P. (1997 (1) S.C.C. 621), has been pleased to lay down that orders / circulars / letters, which are contrary to statutory provisions and constitutional mandate are just to be ignored by the Courts, as such orders can not be basis for any right or benefit. Again, in the case of LAXMAN DUNDAPPA DHAMANEKAR AND ANOTHER ..VS.. MANAGEMENT OF VISHWA BHARATA SEVA SAMITI AND ANOTHER (2001 (8) S.C.C. 378), the Hon'ble Supreme Court was pleased to lay down that rules cannot be supplemented by executive orders unless parent Act gives permission expressly.
22. The Hon'ble Division Bench had issued directions with respect of 22 secondary grade teachers, who were appointed and served the Department, for giving relaxation in exercise of power under the Act. The Government Order issued therefore could only be applied to those teachers, and could not be treated to be Law, to give benefit to persons like respondent No.5, who were appointed in violation of statutory rules, by ignoring the right of eligible persons, and whose appointment was not approved. The power of relaxation of rules cannot be exercised to promote illegalities.
23. Even otherwise, in view of the positive affidavit filed by the fifth respondent, in response to the contempt petition, it cannot be said that the fifth respondent in service, therefore, the provision of relaxation, could be invoked, to protect the illegal appointment against the Statutory Rules, specially when the approval was rejected, by the competent authority, and the Appeal against the said order was also dismissed. The order is completely silent as to why the necessity arose to review the earlier decision, which was upheld by this Court.
24. Learned counsel for the petitioner is right, in contending, that the appointment of the fifth respondent cannot be sustained, as it was not only that the petitioner lacked the qualification, which could be relaxed, but the appointment was also contrary to the Rules, as direct appointment under the Statutory Rule could only be made, if there were no eligible persons in the School.
25. Admittedly, two of the teachers working in the School, including the petitioner, were fully eligible for being appointed as Headmaster. The impugned Government Order, has not taken into consideration important aspect, thus on the face of it, is arbitrary and thus by Article 14 of the Constitution of India.
26. Learned counsel for the fifth respondent, in support of the impugned order, vehemently contends, that the fifth respondent was appointed with qualification of B.Ed., and therefore, he was fully qualified to be appointed as B.T. Teacher, and was also fully qualified for being appointment to the post of Headmaster. This contention is on the face of it contrary to statutory rules, laying down qualification and process of selection.
27. The learned counsel for the fifth respondent also contends, that the appointment of the fifth respondent has been rightly approved by granting relaxation, in view of the order passed by this Court, which does not call for any interference by this Court at this stage.
28. In support of the contentions, the learned counsel for the fifth respondent placed reliance on the Judgment of the Hon'ble Supreme Court in J.C.YADAV AND OTHERS ..VS.. STATE OF HARYANA AND OTHERS (A.I.R. 1990 S.C. 857), wherein the Hon'ble Supreme Court was pleased to lay down as under:- "6. The Rule 22 confers power on the government to dispense with or to relax the requirement of any of the rules to the extent and with such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The object and purpose of conferring this power on the government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable manner. If the rules cause undue hardship or rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of rules. The rule does not restrict the exercise of power to individual cases. The government may in certain circumstances relax the requirement of rules to meet a particular situation. Having regard to these meanings the expression 'in any particular case' would mean: in a particular or pertaining to an event, situation or circumstances. Rule 22 postulates relaxation of rules to meet a particular event or situation, if the operation of the rules causes hardship. The relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of rule is wide enough to confer power on the State Government to relax the requirement of rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the government has power to relax requirement of rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers.
If power of relaxation is exercised on extraneous consideration for oblique purposes or mala fide, the court has power to strike down the same but exercise of power of relaxation to meet a particular situation cannot be held to be arbitrary or illegal. Rule 22 is beneficial in nature; it must be construed in a liberal manner and it should not be interpreted in a manner to defeat the very object and purpose of such power. Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed. This power may also be exercised to meet a particular situation where on account of the operation of the Rules hardship is being caused to a set of individual officers."
29. A reading of the judgment (supra) would show, that it goes against the case of the fifth respondent. The admitted facts, stated herein above shows, that relaxation in this case has been exercised on extraneous consideration for oblique purposes, to protect the appointment of the fifth respondent, who happens to be the Son of the Secretary of the fourth respondent, whose appointment was not approved, but he was allowed to continue illegally.
30. Otherwise also, there is absolutely no justification, in relaxing the Rule, as the eligible persons for promotion were available, and the appointment of the fifth respondent was not approved. His continuation against law, therefore, cannot be termed as "hardship" to grant relaxation of Statutory Rules.
31. The Government Orders, on which reliance has been placed cannot be said to be either the Rules, Regulations or even Administrative instructions to be followed in cases, as these orders were passed to grant relaxation in rules, in exercise of statutory power for a class of persons, as one time measure, which by no stretch of imagination, can take the colour of Government instructions, to deal with the future cases.
32. In order to relax particular rule, it is incumbent on the authority, to apply the mind, to the facts of that particular case.
33. The impugned order, therefore, cannot be sustained, for the reason, that the fifth respondent was not in a position of "hardship", to claim relaxation as his appointment was void ab initio, having been made in violation of the Statutory Rules.
34. The stand of the learned counsel for the petitioner is supported by the law laid down by this Court in R. BALAVADIVEL ..VS.. CHIEF EDUCATIONAL OFFICER, DINDIGUL (2005 (4) M.L.J. 679), wherein a Division Bench of this Court was pleased to held as under:-
"Rule 15(4)(i) requires promotion shall be made on merit and ability, seniority being considered only when merit and ability are approximately equal. Rule 15(4)(ii) mandates that appointments to various categories of teachers shall be made firstly by promotion among the qualified teachers in that school and, if no qualified teachers are available in that school, other persons including the non-teaching staff working in that school, can be employed, provided they are fully qualified to hold the post of teachers, and, only when they are not available, appointment of teachers from any other school or by direct recruitment can be made with the prior permission of the district educational officer of the Chief Educational Officer, as the case may be".
35. In S. PANDARA VADIVU ..VS.. DIRECTOR OF ELEMENTARY EDUCATION (2009 (5) M.L.J. 1000) wherein it was held by this Court that the appointment in violation of Rule 15(4) of Rules is illegal, which is as under:-
"The second respondent has not granted any prior approval to fill up the post of Headmaster of the third respondent school, which is admittedly required under the above said statutory provision viz., Rule 15(4). The School Committee took a decision to go for direct recruitment to fill up the post of Headmaster. The said fact having not been disputed, the appointment of the petitioner by the third respondent School is to be treated as invalid and illegal and the said order will not confer any right to the petitioner".
36. This Court in M.CHELLADORAI ..VS.. JOINT DIRECTOR OF SCHOOL EDUCATION AND OTHERS (2003 W.L.R. 304) held as under:-
"The petitioner is entitled to be promoted, as the petitioner alone is in the feeder category and not the fourth respondent. On the third point also this Court holds that Rule 15(4) could very well be pressed into service or enforced by the petitioner as against the third respondent school, which is a minority institution in view of the binding pronouncement of the Apex Court.
It follows that the appointment of the fourth respondent as if it is a direct recruitment cannot be sustained at all as there is a teacher available in the feeder category, who possesses all qualifications in terms of Rule 15(4)(i). As priority has been laid down by statutory Rule, the vacancy in the category of B.T.Assistant (History) has to be filled up by promotion. The petitioner is qualified in all respects with rich experience as well as he is the senior most in the feeder category with requisite qualifications. Therefore, the third respondent school should have promoted the writ petitioner as against appointment of the fourth respondent who is not in the feeder category even though she is possessed of the qualifications. It follows that the petitioner is entitled to the relief of mandamus as prayed for".
37. A Division Bench of this Court again in the case of THE SECRETARY, SALIAR MAHAJANA HIGHER SECONDARY SCHOOLS, ARUPPUKOTTAI ..VS.. G. SUBBURAJ (2005 (1) C.T.C. 8) was pleased to lay down as under:-
"5. A perusal of the above Rule shows that appointment of outsiders can only be made if no qualified and suitable internal teacher is available. In other words, sub-clause (ii) of Rule 15(4) will only apply when no teacher falling in the category of sub-clause (i) of Rule 15(4) is available. It is undisputed that there were teachers available as specified in sub-clause (i) of Rule 15(4) i.e. internal candidates. Hence the appointment of the first respondent who was an outsider was clearly illegal. It was rightly set aside by the Joint Director of School Education by order dated 17.12.2001 and that order has been rightly confirmed by the learned Single Judge. Admittedly, during the period when the first respondent was working i.e., from 11.08.1997 to October 2004, he has been paid a consolidated salary of Rs.1,050 p.m., (later enhanced to Rs.1,250 p.m) from the donations received by the Management. The learned Single Judge has directed that the first respondent should be paid salary of a regular teacher for the period for which he had worked i.e. from 11.08.1997. We are of the opinion that this direction of the learned Single Judge for payment of salary as a regular teacher for the period for which the first respondent worked, cannot be sustained. Admittedly, the first respondent was not a legally appointed teacher. He had been appointed illegally in violation of Rule 15(4) of the Rules. Hence, we cannot see how he can be granted salary of a regular teacher".
38. The impugned order, therefore, totally arbitrary, being against well settled principles of law. The appointment of the fifth respondent was ab initio illegal, which could not be regularized, by relaxation of Rules as the Statutory Rules cannot be amended or modified by Government Orders / instructions.
39. For the reasons stated herein above, the writ petition is allowed, and the impugned Government Order, is quashed, and a writ in the nature of Mandamus, is issued to consider the case of the petitioner for promotion to the post of Headmistress.
No order as to costs.
1. The Secretary to Government, School Education Department, State of Tamil Nadu, Secretariat, Chennai - 9.
2. Director of Elementary Education, Chennai - 6.
3. District Elementary Educational Officer, Virudhunagar, Virudhunagar District.