Madras High Court
The Secretary And Correspondent vs J.S.Burhanuliah on 8 December, 2023
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.A.No.140 of 2020 and
W.P.No.20696 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.12.2023
CORAM
THE HON'BLE Mr. JUSTICE R.SURESH KUMAR
AND
THE HON'BLE Mr. JUSTICE G.ARUL MURUGAN
W.A.No.140 of 2020 and
W.P.No.20696 of 2019 and
C.M.P.No.1965 of 2020
W.A.No.140 of 2020 :
The Secretary and Correspondent,
Islamiah Boys Higher Secondary School,
Vaniyambadi, Vellore District. ... Appellant
Vs.
1.J.S.Burhanuliah
2.The District Educational Officer,
Thirupathur,
Vellore District. ... Respondents
Prayer : Appeal filed under Clause 15 of the Letters Patent Act, praying
to set aside the order dated 24.07.2019 in W.P.No.4325 of 2010.
For Appellant : Mr.S.Nedunchezhiyan
For Respondents : Mr.B.Manimaran
for M/s.Ansari Associates for R1
: Mr.M.Murali
Government Advocate for R2
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W.A.No.140 of 2020 and
W.P.No.20696 of 2019
W.P.No.20696 of 2019:
Islamiah Boys Higher Secondary School
rep. By its Secretary and Correspondent,
Vaniyambadi,
Vellore District. ... Petitioner
Vs.
1.The Joint Director of School Education
[Secondary Education],
College Road, Chennai – 6.
2.The Chief Educational Officer,
Vellore.
3.The District Education Officer,
Thirupathur, Vellore District.
4.J.S.Burhanullah ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus calling for the
entire records relating to the proceeding in Na.Ka.No.7681/ M-3/08 dated
04.02.2009 and O.Mu.No.7681/M-3/2009 dated 11.03.2009 on the file of
the 3rd respondent herein and quash the same and consequently direct the
2nd respondent herein and to approve the proposal in P.No.37/2008-09
dated 27.03.2009 of the petitioner herein for termination of the services
of the 4th respondent herein.
For Petitioner : Mr.S.Nedunchezhian
For Respondents : Mr.M.Murali
Government Advocate for R1 to R3
: Mr.B.Manimaran
for M/s.Ansari Associates for R4
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W.A.No.140 of 2020 and
W.P.No.20696 of 2019
COMMON JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
As the issue raised in both the writ appeal as well as the writ
petition is interconnected, with the consent of the learned counsel
appearing for both sides, both the writ appeal and the writ petition were
heard together and are disposed of by this common order.
2. W.A.No.140 of 2020:
2.1. The 1st respondent in the writ appeal was a Teacher appointed
in the appellant School. Against the Teacher disciplinary proceedings
were initiated by issuance of charge memo dated 27.09.2007 on the date
the Teacher also was placed under suspension. Thereafter, an enquiry
was conducted based on the Enquiry Officer's report, the
appellant/School Management decided to inflict the punishment of
termination from service, accordingly the said punishment was awarded
on 13.12.2008 against the 1st respondent Teacher.
2.2. After inflicting such punishment, the School Management had
sent the said punishment order to the authority concerned viz., the
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W.A.No.140 of 2020 and
District Educational Officer/the 2nd respondent herein for approval, the
2nd respondent having considered the entire proceedings which
culminated in the termination order, had rejected the same by issuing a
proceedings dated 04.02.2009. In the said rejection order, it was held by
the 2nd respondent that, the procedure as contemplated under the Tamil
Nadu Private Schools Regulations Act and the Rules made thereunder
have not been properly followed. Therefore, the order of punishment
awarded against the Teacher cannot be accepted, accordingly it was
rejected with a rider that the School Management shall reinstate the
Teacher.
2.3. As the reinstatment was not made, the 2nd respondent/District
Educational Officer (in short 'D.E.O.') has sent further communication on
11.03.2009 reiterating the earlier order and further directed the School
Management to reinstate the Teacher within a week period.
2.4. As against the said order passed by the D.E.O., the School
Management claimed to have sent a representation/appeal to the Chief
Educational Officer on 27.03.2009.
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W.A.No.140 of 2020 and
2.5. Thereafter, nothing has been moved on either direction,
therefore after having waited for long years, the Teacher had approached
this Court by filing the writ petition in W.P.No.4325 of 2010 dated
24.07.2019 seeking to set aside and quash the order of termination made
by the School Management dated 13.12.2018 and to reinstate the Teacher
into service with backwages and attendant benefits.
2.6. The said writ petition was allowed by the order passed by the
Writ Court dated 24.07.2019 against which the present intra Court appeal
has been directed.
3. W.P.No.20696 of 2019:
3.1. Even though it was claimed by the School Management that,
they have sent the representation/appeal to the Chief Educational Officer
on 27.03.2009, it is the further claim that the said representation or
appeal has not been considered and decided and no orders have been
passed by the Chief Educational Officer (in short 'C.E.O.').
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W.A.No.140 of 2020 and
3.2. However, no further action has been taken from the side of the
School Management and only at the time of final hearing of the writ
petition filed by the Teacher as the said writ petition filed by the Teacher
was disposed on 24.07.2019 just 10 days prior to the said order, the
School Management had chosen to file this writ petition on 11.07.2019
challenging the order passed by the D.E.O. rejecting the plea of the
School Management for termination of the Teacher and those two orders
passed by the D.E.O. on 04.02.2009 and 11.03.2009 were under
challenge in this writ petition.
4. Heard Mr.S.Nedunchezhiyan, learned counsel appearing for the
appellant, Mr.B.Manimaran, learned counsel appearing for the 1st
respondent Teacher and Mr.M.Murali, learned Government Advocate
appearing for the 2nd respondent/D.E.O in the writ appeal and the
respondents 1 to 3 in the writ petition.
5. The learned counsel appearing for the appellant as well as the
writ petitioner in W.P.No.20696 of 2019 i.e., the School Management
has submitted that, the District Educational Officer is not the competent
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W.A.No.140 of 2020 and
authority to pass orders by making the rejection of the termination order
passed by the School Management, therefore the C.E.O. i.e., Chief
Educational Officer being the competent authority to whom the
representation had been forwarded by the School Management on
27.03.2009, but the C.E.O. did not pass any orders on such
representation. Therefore, waiting the orders to be passed by the C.E.O.,
the School Management did not move any further to file any writ petition
and only in the year 2019 as the Teacher filed a writ petition challenging
the termination order, the Management was constrained to file the writ
petition in W.P.No.20696 of 2019.
6. The learned counsel would also contend that, if the D.E.O. is not
a competent authority and the C.E.O. alone is the competent authority on
that ground itself the order passed by the D.E.O. rejecting the plea raised
by the School Management to get approval for the termination order
passed by them against the Teacher is vitiated.
7. On the other hand, Mr.B.Manimaran, learned counsel appearing
for the 1st respondent Teacher would contend that, only to the 2nd
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W.A.No.140 of 2020 and
respondent/D.E.O., the School Management had sent the proposal that
they have terminated the Teacher out of the disciplinary proceedings and
seeking the approval of the D.E.O. and since the D.E.O. having
considered the said order has rejected the same, in the year 2009 itself
and it has been communicated immediately to the School Management in
February/March 2009 itself despite that the said order has never been
questioned for more than 10 years.
8. Only when the writ petition filed by the Teacher was taken up
for hearing, at this juncture as a knee-jerk reaction, the School
Management was triggered to file the writ petition challenging the order
passed by the D.E.O. rejecting the termination order, therefore the writ
petition in W.P.No.20696 of 2019 is not maintainable as is hit by latches,
hence on that ground itself, the writ petition is to be dismissed.
9. Insofar as the competency of the D.E.O. to pass order is
concerned, if at all the D.E.O. has passed order, further appeal can be
filed to the C.E.O. and that has been provided under the rule, therefore it
cannot be stated that the D.E.O. does not have the competency to pass
orders, he contended.
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W.A.No.140 of 2020 and
10. Mr.M.Murali, learned Government Advocate appearing for the
2nd respondent would submit that, only to the D.E.O. the termination
order has been forwarded by the School Management to give approval
which was considered and approval was rejected after having gone
through the entire issue to the disciplinary proceedings where the
procedure contemplated under the Act as well as the Rules since have not
been followed, the D.E.O. has come to such a conclusion that the
termination order would not be sustained and accordingly the same was
rejected as early as on 04.02.2009 itself.
11. The learned Government Advocate would further submit that,
if at all the School Management is aggrieved by such an order passed by
the D.E.O., they can very well prefer appeal against such order to the
Chief Educational Officer who is the appellate authority as against all
orders passed by the D.E.O., but no such appeal has been filed only a
representation claimed to have been sent by the School Management on
27.03.2009, therefore the representation has not been considered because
it has not been filed by way of appeal.
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W.A.No.140 of 2020 and
12. The issue since has been concluded and no further persuasive
action has been taken even if at all the School Managements are
aggrieved for more than a decade, all of a sudden after 10 years he
cannot turn around and file a writ petition challenging the order passed
by the D.E.O. in the year 2009, therefore on the ground of latches the
writ petition has to be dismissed and even on merits also the said writ
petition is deserved to be dismissed, the learned Government Advocate
contended.
13. We have considered the said rival submissions made by the
learned counsel appearing for the parties and have perused the materials
placed before this Court.
14. Insofar as the writ appeal is concerned, the learned Judge has
taken note of the order passed by the D.E.O. on 04.02.2009 where the
termination order which was sought to be approved by the School
Management has been considered and rejected by the D.E.O. The said
order has never been questioned by the School Management till the
disposal of the writ petition, therefore taking note of the same, the
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W.A.No.140 of 2020 and
learned Judge apart from other reasons i.e. on the main reason of non
approval of the termination order was pleased to allow the writ petition
filed by the Teacher through the impugned order, therefore we do not
find any error in the said approach of the learned Judge in allowing the
said writ petition, as a result the writ appeal also fails.
15. Insofar as the writ petition i.e. W.P.No.20696 of 2019 is
concerned, the order impugned therein was passed by the District
Educational Officer on 04.02.2009, as against which, no appeal has been
filed only a representation has been filed and in that representation,
according to the School Management, no orders have been passed
therefore they have been waiting.
16. If at all they have waited to pass orders by the C.E.O. on the
representation given by the School Management, there must be a
reasonable time to wait beyond which they need not wait as already there
has been a rejection order passed by the D.E.O. where a direction already
been given to the School Management to reinstate the Teacher. Therefore
in the teeth of the said order, there was an obligation on the part of the
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W.A.No.140 of 2020 and
School Management to reinstate the Teacher. When that being so, the
claim now made by the School Management that, they have waited to
pass orders by the C.E.O. on their representation dated 27.03.2009 is not
an acceptable reason for such a long delay.
17. The delay of 10 years can very well be construed as a latches,
because, absolutely no reason also has been made by the School
Management in approaching this Court by filing the present writ petition
only on 11.07.2019.
18. Probably the writ petition filed by the Teacher since has been
disposed of on 24.07.2019 before which during any of the hearing if at
all the issue with regard to the non challenge of the order of the D.E.O.
by the School Management would have triggered the School
Management to file this writ petition as a knee-jerk reaction after 10
years.
19. For such a long delay of 10 years absolutely no reason has
been given by the writ petitioner School Management in this writ petition
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W.A.No.140 of 2020 and
in W.P.No.20696 of 2019, therefore such a writ petition can be rejected
on the ground of latches alone.
20. That apart, insofar as the compentency of the Officer
concerned who passed an order of rejection is concerned, if at all the
D.E.O. passed an order against which appeal could have been filed
before the C.E.O. which is contemplated in the Rule itself, as the order
passed by the D.E.O. would be appealed to the C.E.O. and the order
passed by the C.E.O. would be appealed to the Director or Joint Director
of School Education. Therefore, such a hierarchy of appeal is available
that could have been explored by the School Management which they
have failed, therefore the competency question cannot be raised at this
point of time by the School Management.
21. Insofar as the plea raised by the School Management that, it is
the School of Minority Management, therefore they need not be
competent authority. The competent authority is concerned, the relevant
provision is Section 22(1) of the Tamil Nadu Private Schools
Regulations Act, it contemplates such a requirement of getting a prior
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W.A.No.140 of 2020 and
permission and such a statutory obligation cannot be over ridden by any
other authority.
22. Therefore, that plea raised by the School Management also is
liable to be rejected, accordingly it is rejected.
23. Therefore for all these reasons and the discussions herein
above made, we are of the considered view that the order passed by the
learned Judge which is impugned in the writ appeal is to be sustained,
accordingly it is sustained and the writ petition in W.P.No.20696 of 2019
is liable to be rejected for the reason of latches as well as on merits,
therefore it is to be rejected.
24. In the result, both the Writ Appeal as well as the Writ Petition
are dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is also dismissed.
[R.S.K., J.] [G.A.M., J.]
08.12.2023
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
Sgl
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W.A.No.140 of 2020 and
To
1.The Joint Director of School Education
[Secondary Education],
College Road, Chennai – 6.
2.The Chief Educational Officer,
Vellore.
3.The District Educational Officer,
Thirupathur, Vellore District.
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W.A.No.140 of 2020 and
R. SURESH KUMAR, J.
and
G.ARUL MURUGAN, J.
Sgl
W.A.No.140 of 2020 and
08.12.2023
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