Madras High Court
G.Maria Selvarani vs D.Usha Santha Joy on 2 February, 2022
CONT P(MD)No.1880 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:02.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
CONT P(MD)No.1880 of 2021
G.Maria Selvarani ... Petitioner
vs.
D.Usha Santha Joy,
District Educational Officer,
Tuticorin, Tuticorin District. ... Contemnor/Respondent
PRAYER: Petition filed under Section 11 of the Contempt of Court Act, 1971, to
punish the respondent for willful disobeying and not complying with the order of
this Court, dated 26.11.2020, in W.P.(MD)No.11046 of 2015.
For Petitioner : Mr.A.Ajith Geethan
For Respondent : M/s.D.Farjana Ghoushia
Special Government Pleader
*****
ORDER
This contempt is filed alleging willful disobedience of the order of this
Court passed in W.P.(MD)No.11046 of 2015 dated 26.11.2020.
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CONT P(MD)No.1880 of 2021
2.The Writ Petition W.P.(MD)No.11046 of 2015, is filed for issuance of a
Writ of Certiorarified Mandamus, to quash the impugned order, dated 18.05.2015
and to direct the second respondent to sanction one set of incentive increment to
the petitioner for acquiring B.Ed., degree with effect from 27.12.2011. Thereafter,
the petitioner has amended the prayer to quash the impugned G.O.Ms.No.944,
Education (D2) Department, dated 29.07.1989 and consequential proceedings,
dated 18.05.2015 and to direct the second respondent to sanction one set of
increment for acquiring B.Ed., degree with effect from 27.12.2011.
3. The brief facts of the case are that the petitioner is working as
Secondary Grade Teacher in third respondent School, which is a minority aided
Private School. The petitioner acquired B.Ed., degree by taking permission from
the Headmaster of the School. However, the petitioner has not taken permission
from the educational authority. The petitioner was appointed as Secondary Grade
Teacher on 03.01.2001 and the same was approved by the educational authority.
The petitioner was qualified Diploma in Teacher Education (D.T.Ed.) and then
acquired B.A., (English) in December 2008 and B.Ed., in December 2011. The
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CONT P(MD)No.1880 of 2021
third respondent School granted ratification on 28.02.2015 for the higher studies
and submitted necessary proposal to the second respondent requesting and
sanctioning one set of incentive increment for obtaining higher qualification, i.e.,
B.Ed., degree. The DEO returned the proposals on 18.05.2015, denying incentive
increment stating the petitioner has not obtained prior permission for obtaining
higher qualification.
4.The contention of the petitioner is that there is no necessity to get any
permission either from the School management or from the educational authorities
for obtaining higher studies, because the higher studies, was done through
distance education mode and not under regular stream. The petitioner contention
that since he has obtained higher qualification through distance education it will
not affect the students in the third respondent School. Moreover, the petitioner is
employed in third respondent School, it is a private aided Minority Institution has
also ratified the higher qualification and therefore, the official respondents have
no justification denying incentive increment. Therefore, the petitioner filed the
Writ Petition seeking incentive increment.
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CONT P(MD)No.1880 of 2021
5.The respondent filed a counter affidavit stating that the petitioner ought
to have obtained prior permission as stated in G.O.Ms.No.944, Education
Department, dated 29.07.1989. Thereafter, the petitioner filed an amendment
petition and amended the prayer.
6.The contention in the amendment petition is that the respondents filed
the counter affidavit in a similar Writ Petition in W.P.(MD)No.14085 of 2015 by
quoting the above said G.O. 944. On perusal of the G.O, the Director of School
Education seems to have approached the Government seeking to delegate the
powers to permit the staffs working in Private Schools to join correspondence
courses. Since similar delegation of power was granted in case of Government
servants. Thereafter, the Government blindly issued the said G.O. 944. The
Government may have power to delegate to the Heads of Department in respect of
Government service. However, in respect of staff working in aided Schools, the
State Government is not the employer and no such power is vested on the
Government under the Tamil Nadu Recognized Private Schools (Regulation) Act.
Under Section 51 of the Act, the State Government is empowered to delegate the
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CONT P(MD)No.1880 of 2021
power vested on them to any authority. But the power to permission to join
correspondence course in respect of Aided School Staff it is not vested with the
Government. As per Section 18 (b) of the Act, the School Committee alone is the
competent to join the staff, fix their pay and define their duties and conditions of
service. The petitioner being employed in third respondent School which is a
private aided minority institution, need not constitute School Committee and the
powers of the School Committee defined under the Act vest with educational
agency in respect of minority educational institutions. The State Government by
the impugned G.O. 944 has curtailed the rights of the School Committee as well
as the educational agency.
7.In W.P.No.4478 of 1974, this Court vide order, dated 17.12.1975, has
held that Sections 8(1)(a), 11(1)(b), 12(1), 14 to 18, 21(2) to 26, 31 to 33, 39(4),
41 to 45 and Rules 7, 9 except Clauses (e) and (k) of sub rules (2) Rules 10 to 14,
16 to 18 and 22 to 24 inapplicable to minority institutions. In an Appeal filed in
SLP (Civil) Nos.1521-56 and 3042-91 of 1979, the Supreme Court, vide order,
dated 04.03.2003, set aside the above order and remitted the matter again for fresh
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CONT P(MD)No.1880 of 2021
consideration and also directed to maintain status quo, until High Court decide it
afresh.
8.When the batch of Writ Petitions came up for hearing, the State
Government filed affidavit that the present law will be replaced by new one and
the Division Bench disposed the batch of Writ Petitions with a specific direction
to maintain the status quo as on date of earlier judgment till new comprehensive
Act comes into force. Therefore, the above said sections are not applicable to the
minority institutions. Therefore, the petitioner sought to quash the impugned,
G.O.Ms.No.944 and the consequential prayer. This Court, vide order, dated
26.11.2020, has quashed the G.O.Ms.No.944 and directed to grant incentive
increment against which the respondent appellant has filed a Writ Appeal in W.A.
(MD)No.819 of 2019 and the same was allowed and remanded back to the Writ
Court to consider the issue by G.O.Ms.No.944.
9.The respondents have filed a counter affidavit stating that the
Government has preferred review application REV.APPL (MD).34 of 2021
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CONT P(MD)No.1880 of 2021
against the order passed in the writ petition and the same is pending. It is seen
from the records that the petitioner was not paid any incentive increments and the
Government has issued another G.O. wherein the granting of incentive
increments was cancelled in the Government has issued G.O.Ms. No.37 Personnel
and Administrative Reforms (FR-IV) Department dated 10.03.2020. In the said
G.O. it has been stated in Clause 6 sub clause (vi) as under:
“The person who have acquired higher qualification prior to issue of
this general order and not sanctioned with advance increments be
examined separately as per the previous orders issued, if any, by the
administrative department concerned and with reference to the posts
specified in that order and if he is otherwise qualified, then the advance
increment may be sanctioned by the administrative department
concerned, after obtaining concurrence of Finance Department. If no
previous orders were issued by any of the department concerned, then
they are not eligible for sanction of any advance increments for passing
higher qualification irrespective of the post held / degree acquired.”
In sub clause (vii) it has been stated as under:
“No fresh / further proposals will be entertained by Personnel and
Administrative Reforms Department on this issue, in future”
10. However, any candidate was not granted any incentive increment and
no orders are passed to grant incentive increment, then, the candidate is not
entitled to under the clause stated supra. However, since the respondent /
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CONT P(MD)No.1880 of 2021
contemnor has preferred review application in REV.APPL (MD).34 of 2021 to
decide the entire issue, this Court is of the considered opinion that there is no
willful disobedience as of now. Therefore, this Court is closing this Contempt
Petition with the liberty to the petitioner to reopen after the disposal of the review
application.
11. Hence, the Contempt Petition is closed.
Index : Yes / No 02.02.2022
Internet : Yes
Tmg
To
District Educational Officer,
Tuticorin, Tuticorin District.
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CONT P(MD)No.1880 of 2021
S.SRIMATHY, J
Tmg
Order made in
CONT P(MD)No.1880 of 2021
02.02.2022
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