Madras High Court
P.Rajathi vs The Director Of Secondary School ... on 27 April, 2021
W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD) Nos.7 of 2021, 1305 of 2018 and W.P.(MD) No.7963 of 2020
P.Rajathi ... Appellant in Writ Appeals and
Petitioner in Writ Petition
Vs
1.The Director of Secondary School Education,
DPI Campus,
Chennai – 600 006.
2.The District Educational Officer,
Srivilliputhur Education District,
Srivilliputhur,
Virudhunagar District.
3.The Chief Educational Officer,
Virudhunagar District,
Collector Office Campus,
Virudhunagar.
4.Pu.Mu.Ma.Ammaiyappa Nadar Girls
Higher Secondary School,
Rep. by its Secretary,
Thalaivaipuram,
Rajapalayam Taluk,
Virudhunagar District. ... Respondents 1 to 4 in Writ Appeals
and Writ Petition
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https://www.mhc.tn.gov.in/judis/
W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
5.S.Alankara Mary ... 5th Respondent in W.P.(MD) No.
7963 of 2020
PRAYER in W.A.(MD) No.7 of 2021: Appeal under Clause 15 of the
Letters Patent, against the order dated 13.07.2016, passed in W.P(MD)No.
12230 of 2016.
PRAYER in W.A.(MD) No.1305 of 2018: Appeal under Clause 15 of the
Letters Patent, against the order dated 11.08.2018, passed in W.P(MD)No.
17807 of 2018.
PRAYER in W.P.(MD) No.7963 of 2020: Writ Petition filed under Article
226 of the Constitution of India, praying for issue of Writ of Declaration,
declaring the appointment of the 5th respondent in the 4th respondent school
in the post of PG Assistant (Economics) as illegal and consequently order
the appointment of the petitioner to the said post.
For Appellant and : Mr.N.Dilip Kumar
Petitioner
For Respondent Nos.1 to : Mrs.S.Srimathy,
3 in writ appeals and Special Government Pleader
writ petition
For Respondent No.4 in : Mr.V.Panneerselvam
writ appeals and writ
petition
For Respondent No.5 in : Mr.AL.Kannan
writ petition
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https://www.mhc.tn.gov.in/judis/
W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
COMMON JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
Since the issue involved in the two Writ Appeals and one Writ
Petition pertains to a case of a teacher, who sought promotion, they were
heard together and disposed of by this common judgment/order.
2.W.A.(MD) No.7 of 2021 is directed against the order dated
13.07.2016, in W.P.(MD) No.12230 of 2016, whereby the appellant
challenges the order passed by the respondent Management dated
12.01.2016, by which, the Committee constituted for selection of candidates
for P.G. Assistant Post found the appellant not suitable. Consequent upon
that, by an order, the respondent Management had seleted a candidate from
the open market and since the appellant was not furnished copy of the such
selection order, the petitioner filed W.P.(MD) No.17807 of 2018, praying
for a direction to issue certified copy of the proceedings to the petitioner
relating to the filling up of vacancy in the post of PG Assistant (Economics)
in the fourth respondent institution. Since the Writ Petition was dismissed
by order dated 11.09.2018, W.A.(MD) No.1305 of 2018 has been filed.
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
Apart from that, the appellant has filed W.P.(MD) No.7963 of 2020, seeking
for a declaration, declaring the appointment of the 5th respondent in the 4th
respondent school in the post of PG Assistant (Economics) as illegal and
consequently, to order the appointment of the petitioner to the said post. The
said Writ Petition is also posted along with the Writ Appeals for disposal.
3.In order to decide as to what releif the appellant is entitled to, it
would be necessary to decide the Writ Appeal (MD) No.7 of 2021, as the
result in this appeal will have a direct impact on the other Writ Appeal and
the Writ Petition.
4.As noted above, the Writ Petition was filed challenging the order
passed by the respondent Management dated 12.01.2016. In the said order,
there are two facets, which are to be noted and it appears to be the reason
for non-finding the appellant suitable to be promoted to the post of P.G.
Assistant under (Economics). The first being, the appellant did not obtain
prior approval from the management for acquiring higher qualification,
namely, her M.Com. Degree as well as her B.Ed. Degree. The second reason
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
is that the Selection Committee constituted by the management had
conducted interview, in which, the appellant participated and the Committee
did not find her suitable.
5.The argument of Mr.N.Dilip Kumar, learned counsel for the
appellant/petitioner is that the first reason in the impugned order will clearly
show the malafide intention on the part of the respondent Management. To
support this argument, learned counsel for the appellant has drawn our
attention to the (i) application filed by the appellant for undergoing B.Ed.
Course, which was forwarded by the Management and countersigned by the
Department, (ii) letter given by the petitioner dated 13.08.2009, requesting
permission for higher studies, which was signed by the Correspondent of
the Management, (iii) the proceedings of the Madurai Kamaraj University,
certifying the genuineness of the M.A. Degree obtained by the appellant and
(iv) the appellant's certificate was forwarded by the Management to the
Department, which in turn was forwarded to the University for approval and
submitted that all these would go to show that the allegations that no prior
permission was obtained is false.
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
6.Furthermore, the Management vide order dated 28.08.2013, rejected
the request of the appellant to be appointed as P.G. Assistant in Economics,
giving the reason that she had given an undertaking that she will not seek
promotion or higher qualification. In this regard, the learned counsel for the
appellant has also drawn our attention to an undertaking executed by the
appellant dated 13.08.2009. All these records would prima facie show that
the manner in which the respondent Management has approached the issue
is wholly incorrect.
7.The respondent Management cannot compel a teacher to give an
undertaking that he or she will not acquire higher qualification. From the
records, it is prima facie seen that the Management was aware of the fact
that appellant was pursuing higher education and the genuineness of the
certificate has also been certified by the Madurai Kamaraj University. Had
the Management stopped with the order dated 28.08.2013 and 13.08.2009,
this Court would have definitely interfered with the orders and quashed
them. Later, presumably an advise was given to the Management about Rule
15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974,
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
in and by which qualifications, conditions of service of teachers and other
persons have been stipulated and sub-rule 4, which deals with how
promotion has to be made in respect of the teachers. Consequently, the
Management has constituted a Committee consisting of 3 experts. There is
some allegations made by the petitioner against one of the Committee
Member stating that he is working in another school, which was
administered by the same educational agency. However, none of the parties
are impleaded in their personal capacity, for this Court to examine the
question of malafide.
8.It is true that in the order dated 12.01.2016, impugned in the Writ
Petition, there is an observation that no prior permission was obtained by
the appellant for acquiring higher qualification. The records, which are
placed in the typed set of papers, to which, our attention was drawn by the
learned counsel for the appellant/petitioner, which pertains to the
communication between the appellant and the Management and there
appears nothing on record to show as to whether the Department had
granted permission to enable the Management to permit their teacher to
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
acquire higher qualification. However, such a reasoning given by the
Management need not be considered and this has to be eschewed as the
appellant was called for the interview and she has also participated in the
interview conducted by the Committee, however, the Committee found the
appellant not suitable for the post. Consequently, direct recruitment has
been done and the 5th respondent in W.P.(MD) No.7963 of 2020 is
functioning in the said post. Thus, we find that procedure under Rule 15(4)
has been complied with.
9.The learned counsel for the appellant invited our attention to para
IV of Annexure V to the rule, which stipulates the qualifications for
appointment as teachers in Higher Secondary School in the respect of the
post of Post Graduate Assistant in academic subjects. The second proviso to
it only directs that preference shall be given to those who have studied the
same subject in which he/she has obtained the Post-Graduate degree as main
subject and it is only a preference and when the appellant was the single
candidate, she should have been considered.
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
10.In our considered view, the rule, more particularly rule 15(4)(i)
makes it clear that promotion shall be on grounds of merits and ability. It
has been shown that there was assessment for merit and ability and the
Committee has found the appellant not suitable. Though the appellant has
sought for declaration, to declare the selection of the fifth respondent as
illegal, by attributing motives against the Secretary and other people in the
appointment of the educational agency and certain other reasons attributed
to the Secretary. All these people are not impleaded as parties in their
personal capacity. Therefore, we cannot find bias without proper parties
have been made and a mere allegation being made against them. However,
we are satisfied with the procedure followed and the fifth respondent in
W.P.(MD) No.7963 of 2020 has admittedly possessed under graduate and
post graduate in the same subject, namely, Economics, who has been
preferred and she has been functioning and her appointment has also been
approved by the Department.
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
11.In such circumstances, we are of the view that from the grounds
raised in W.P.(MD) No.7963 of 2020, the selection of the fifth respondent
cannot be declared as illegal as we have held that the selection procedure
cannot faulted on the ground raised. Further, we are inclined to sustain the
order impugned in W.P.(MD) No.12230 of 2016 not for the reasons stated
by the Writ Court, but for the reasons we have assigned above.
Consequently, the Writ Appeal W.A.(MD) No.1305 of 2018 is required to
be dismissed.
12.We find from the materials that repeated charge memos have been
issued to the appellant/petitioner and many of the charge memos are
coinciding with the litigations, which the appellant was conducting, initially
appearing in person and thereafter, through her counsel. It appears that the
last of the memo has been issued after W.P.(MD) No.7963 of 2020 has been
numbered on 01.03.2021, after the delay in filing was condoned. In our
considered view, the Management cannot adopt a witch-hunting approach
against a teacher, who is admittedly working in their institution for all these
years merely because she wanted to improve her career. Therefore, the
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
Management is advised to close the proceedings and remove the
imputations made against the petitioner. Equally the appellant is also
directed not to discuss about the administration of the institution as she is an
employee of the institution and drawing salary sanctioned to the post
occupied by her. That is why, the appointment of the appellant has to be
approved by the Department. This has to be bourne in mind by the
appellant. Equally, the Department also should monitor the activities of the
Management or consider whether the stand taken by them is fair and proper
and in accordance with the Act and the Rules and this aspect should be
taken note of by the District Educational Officer, Virudhunagar.
13.For the above reasons, the Writ Appeals and the Writ Petition are
dismissed and the order of the respondent Management dated 12.01.2016 is
confirmed and the respondent Management is directed to take serious note
of the directions issued by this Court and all memos and charge memos
which have been issued against the appellant/petitioner are directed to be
closes and all imputations made against the appellant shall be removed. We
further direct that the appellant/petitioner shall be considered for any one of
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W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
the future vacancies that may arise in the respondent's institution. No costs.
(T.S.S.,J.) (S.A.I.,J.)
27.04.2021
Index : Yes/No
Internet : Yes/No
sj
Note : In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that
the copy of the order that is presented
is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
To
1.The Director of Secondary School Education,
DPI Campus,
Chennai – 600 006.
2.The District Educational Officer,
Srivilliputhur Education District,
Srivilliputhur,
Virudhunagar District.
3.The Chief Educational Officer,
Virudhunagar District,
Collector Office Campus,
Virudhunagar.
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https://www.mhc.tn.gov.in/judis/
W.A.(MD)Nos.7 of 2021, 1305 of 2018
and W.P.(MD) No.7963 of 2020
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
sj
W.A.(MD) Nos.7 of 2021, 1305 of 2018 and W.P.(MD) No.7963 of 2020
27.04.2021
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