Madras High Court
M.Kanthimathi vs The Chief Educational Officer on 2 March, 2021
W.P.(MD) No.4076 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.4076 of 2021
and
W.M.P(MD) No.3273 of 2021
M.Kanthimathi ...Petitioner
Vs.
1.The Chief Educational Officer,
Thoothukudi, Thoothukudi District.
2.The District Educational Officer,
Thoothukudi, Thoothukudi District.
3.The Secretary,
Smt.P.Thangammal Memorial Higher Secondary School,
102/5G/6, Polepettai – 628 002,
Thoothukudi District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings issued by the 2nd
respondent, District Educational Officer, in O.Mu.No.865/a1/14, dated
08.10.2014, quash the same and further direct the 1st and 2nd respondents
herein to sanction and disburse forthwith the incentive increment (two
advance increments) for the M.Sc.Degree admissible to the petitioner.
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W.P.(MD) No.4076 of 2021
For Petitioner : Mr.A.Amala
For Respondents : Mr.N.Shanmugaselvam for R1 & R2
Additional Government Pleader
ORDER
By consent of both parties, this writ petition is taken up for final
disposal at the stage of admission itself.
2.This writ petition has been filed to quash the the impugned order
passed by the 2nd respondent, District Educational Officer, in O.Mu.No.
865/a1/14, dated 08.10.2014 and consequently, direct the third
respondent to forward the proposal in respect of the petitioner's incentive
increment for having acquired M.Sc.Degree to the first and second
respondents and direct the first and second respondents to approve the
same within time frame.
3.The main grievance of the petitioner is that she has completed
M.Sc., degree and hence, she is entitled to get incentive increment.
However, the same was denied to the petitioner stating that prior
permission was not obtained for studying M.Sc., degree.
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W.P.(MD) No.4076 of 2021
4.The learned counsel appearing for the petitioner submitted that
prior permission for studying any degree is not required and it will not be
a bar for granting incentive increment. In this regard, the learned counsel
for the petitioner has referred to the order of this Court in W.P.(MD).No.
14085 of 2015, dated 26.11.2020, wherein the learned single Judge has
followed the judgment of the Division Bench of this Court reported in
(2015) 6 MLJ 315 (Director of Elementary Education, Chennai vs.
G.Vijayalakshmi and another) and submitted that as per the law laid
down by this Court, there is no requirement to get prior permission for
undergoing higher studies.
5.The learned Additional Government Pleader appearing for the
respondents 1 & 2 submitted that as per the G.O.(Ms.).No.944, Education
(D2) Department, dated 29.07.1989, the petitioner has to get prior
permission for undergoing higher studies. In reply, the learned counsel
appearing for the petitioner submitted that the said G.O. has been set
aside by this Court holding that the G.O., cannot override the Act.
Therefore, the G.O., is not applicable to the facts of the present case.
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W.P.(MD) No.4076 of 2021
6. On perusal of the said judgment, it appears that there is no need
to get any prior permission for undergoing higher studies. Paragraph Nos.
12 and 13 of the said judgment is as follows:
“12. In the judgment reported in (2015) 6 MLJ
315, Director of Elementary Education, Chennai, vs.
G.Vijayalakshmi and another, relied on by the petitioner, the
Division Bench of this Court held as follows:-
''35. Tamil Nadu Recognised Private Schools
(Regulation) Rules, 1974, have been framed, in exercise of
the powers, under Section 56 of the Act. Both the Act and
the Rules do not speak about the powers of the Director of
Elementary Education, to make any Government Order, ipso
facto, applicable to both the teaching and non-teaching
staff, in the schools, recognised and governed by the Tamil
Nadu Recognised Private Schools (Regulation) Act. As
stated supra, Government Orders, referred to in the earlier
paragraphs, were issued by the Government, while dealing
with Rule 24-A of the Tamil Nadu Government Servant’s
conduct Rules, 1973, which is applicable only to
government servants. Code of conduct, as prescribed in
Annexure-II, in terms of Section 21 of the Tamil Nadu
Recognised Private Schools (Regulation) Act, 1973, read
with Rule 16 of the Rules framed thereunder, alone can be
made applicable to teaching and non-teaching staff,
working in recognised schools. No doubt, by addition or
deletion of substitution, an amendment can be made to the
statutory provisions dealing with the code of conduct for the
staff in a recognised private school, by the Government and
consequently, modify the code of conduct prescribed in
Annexure-II. But the Director of Elementary Education,
Chennai, cannot import rule 24A of the Tamilnadu
Government Servant Rules into the Tamil Nadu Recognised
Private Schools (Regulation) Act, 1973 and the rules made
thereunder. Incorporation of Section 24A directly into the
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W.P.(MD) No.4076 of 2021
Tamil Nadu Recognised Private Schools (Regulation) Act,
1973, is beyond the legislative competence of the Director
of Elementary Education and such a course is
impermissible under the statutory provisions. The School
Committee has the powers to appoint and dismiss a
teaching staff. Such committee also has the powers to grant
leave to any staff.
36. As discussed in the foregoing paragraphs,
School Committee is the authority to deal with service
conditions of the staff. Materials available on record, do
not indicate as to whether, the Government have issued any
orders, in exercise of the powers, conferred under Sections
51 and 51-A of the Tamil Nadu Recognised Private Schools
(Regulation) Act, 1973, by which a teaching and non-
teaching staff, working in a recognised schools, have to
obtain sanction of leave, from the Director of
Elementary/School Education, as the case may be. The
contention of the appellants that the staff works in a
recognised private school, has to obtain a 'No objection
certificate' from the Head of Department, viz., the Director
of Elementary Education, on the ground that he is the
appointing authority, cannot be countenanced, as he is not
the appointing authority under the Tamil Nadu Recognised
Prvate Schools (Regulations) Act, 1973.
37. Unless and until, the Government issues any
order, within the frame work of the statute, which governs
the recognised and aided schools, the Director of the
Elementary Education, Chennai, cannot assume
jurisdiction, extending the abovesaid Government Orders,
which are intended mainly for to the government servants,
where there are Heads of the Department. Though
recognised private aided institutions, perform a public duty
and receive salary for the staff, through State Aid, yet in sor
far as grant of leave is concerned, it is sanctioned only by
the School Committee, in exercise of their powers, under
Section 18 of the Act.
38. Offices of a Department may be located at
different places, for which, there may be a Head of the
Department. But a recognised aided private school, cannot
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W.P.(MD) No.4076 of 2021
be said to be a unit of the Department of School Education.
On the other hand, it is an independent unit, governed by
the statutory provisions of the Act and the rules framed
thereunder. The Director has the powers to issue directions,
only within the frame work of the Tamil Nadu Recognised
Private Schools (Regulation) Act, 1973 and the Rules
framed thereunder.
39. Merely because, the petitioner has not obtained
sanction of leave from the Director of Elementary
Education, Chennai, it cannot be said that there is a
violation of the provisions of the Tamil Nadu Recognised
Private Schools (Regulation) Act and the Rules framed
thereunder and in particular, the Code of Conduct framed in
Annexure-II, in terms of Section 21 of the Tamil Nadu
Recognised Private Schools (Regulation) Act, 1973, read
with Rule 16 of the Rules framed thereunder. Conditions
imposed in the order, dated 30.05.2014, of the Director of
Elementary Education, Chennai, can at best be made
applicable, only to the extent, within the statutory
provisions, to which, the recognised aided schools and the
staff therein, are bound to follow. At the risk of reptition,
Government orders issued are amendments to rule 24A of
the Government Servant Conduct Rules, and not to Tamil
Nadu Recognised Private Schools (Regulation) Act. 1973.''
13.The above judgment is squarely applicable to the
present facts and circumstances of the case. Merely because
the petitioner has not obtained prior permission from the
Director of School Education for joining the correspondence
course, it cannot be said that there is a violation of the
provisions of the Tamil Nadu Recognised Private Schools
(Regulation) Act, 1973 and the Rules framed thereunder.
Any Government Order passed should be within the ambit of
the statutory provisions of the Act and the Rules and if there
is any conflict between the statutory provisions and the
Government Order, the statutory provisions will prevail and
therefore, the petitioner need not get prior permission from
the authority for undergoing higher studies and hence, the
petitioner is entitled to incentive increment.”
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W.P.(MD) No.4076 of 2021
6.The present issue is squarely covered by the above judgment and
the issue is no more res integra. However, in the present case, the
petitioner's request for incentive increment for having possessed higher
qualification came to be rejected on 10.12.2013 and the petitioner has
moved the present writ petition after a lapse of seven years. Apparently,
the aforesaid judgment in the case of Director of Elementary Education,
Chennai, vs. G.Vijayalakshmi and another (supra) was not available on
the date when the impugned rejection order was passed. Nevertheless,
since this Court has already held that prior approval of the concerned
authority for the purpose of pursuing higher education cannot deprive on
a Teacher for incentive increment, it would be appropriate to grant liberty
to the petitioner to approach the second respondent seeking for grant of
incentive increment.
7.In the light of the above observations, the petitioner herein is
granted liberty to approach the second respondent herein with a
representation seeking for grant of incentive increment and on receipt of
the same, the second respondent herein shall consider it, in the light of
the observations made in this order and without reference to the
impugned rejection order dated 08.10.2014 and pass appropriate orders,
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W.P.(MD) No.4076 of 2021
at least, within a period of six weeks from the date of receipt of a copy of
the representation.
8.This Writ Petition is ordered accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
02.03.2021
Index : Yes / No
Internet : Yes / No
TM
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 Chief Educational Officer,
Thoothukudi, Thoothukudi District.
2.The District Educational Officer,
Thoothukudi, Thoothukudi District.
3.The Secretary,
Smt.P.Thangammal Memorial Higher Secondary School,
102/5G/6, Polepettai – 628 002,
Thoothukudi District.
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W.P.(MD) No.4076 of 2021
M.S.RAMESH, J.
TM
W.P.(MD) No.4076 of 2021
02.03.2021
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