Madras High Court
A.Vijayalakshmi vs The Joint Director Of Elementary on 15 June, 2023
W.P.(MD)No.23457 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.06.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.23457 of 2022
and
W.M.P.(MD)No.17539 of 2022
A.Vijayalakshmi ... Petitioner
vs.
1.The Joint Director of Elementary
Education (Minority),
DPI Campus, College Road,
Chennai - 600 006.
2.The District Educational Officer,
(formerly DEEO/ Madurai - DEO, Melur),
Madurai 625 001.
3.The Block Educational Officer,
Madurai East, Tallakulam,
Madurai 625 002.
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W.P.(MD)No.23457 of 2022
4.Thanam Middle School,
(Christian Minority Government Aided School),
represented by its Manager and Correspondent,
Gandhi Nagar, Madurai 625 020.
5.P. Stanley,
Manager and Correspondent,
Thanam Middle School,
(Christian Minority Government Aided School),
Gandhi Nagar, Madurai 625 020.
6.The Headmistress,
Thanam Middle School,
Gandhi Nagar, Madurai 625 020.
7.S.Balakrishnan ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the punishment order Roc.No.43/2022, dated
27.09.2022, passed by the 5th respondent and to quash the same and
consequently, to direct the respondents 1 to 5 to reinstate the petitioner
into service with continuity of service and grant all the service and
monetary benefits within a time limit to be fixed by this Court.
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W.P.(MD)No.23457 of 2022
For Petitioner : Mr.A.Vijayalakshmi
Party in person
For R1 to 3 : Mr.V.Omprakash
Government Advocate
For R4 and 5 : M/s.Pamelin Joseph
ORDER
This writ petition is filed for writ of Certiorarified Mandamus, to
quash the punishment order, dated 27.09.2022, passed by the 5th
respondent and consequently to direct the respondents 1 to 5 to reinstate
the petitioner into service with continuity of service and grant all the
service and monetary benefits within a time limit to be fixed by this
Court.
2. The petitioner is possessing qualification B.Com., B.A.(English)
and B.Ed. Based on this qualification, the petitioner is eligible to be
appointed as B.T. Assistant. After conducting interview in December
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W.P.(MD)No.23457 of 2022
2011, the 5th respondent being the Headmaster of the 4th respondent
School selected the petitioner and appointed the petitioner and she had
joined duty on 09.01.2012.
3. The contention of the petitioner is that the appointment order
was not served on the petitioner but as per the entry in the service
register, no condition was prescribed by the 4th respondent for the
petitioner's appointment. The appointment of the petitioner was approved
by the 2nd respondent and the approval was also entered in the service
register and the petitioner was receiving salary from time and again.
Subsequently, the 5th respondent became the Manager and Correspondent
of the 4th respondent School. Then, the relationship between the
petitioner and the School was not smooth. Hence, the 5th respondent
issued a memo, dated 12.04.2018 for having submitted representation to
the 3rd respondent on 13.03.2018. The petitioner has submitted an
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explanation on 16.04.2018 to the memo. In the staff meeting held on
19.04.2018, the 5th respondent threatened to send the petitioner and three
other teachers out of the School in June 2018, hence the said teachers
submitted representations to the 3rd respondent but the 3rd respondent did
not take any action.
4. In the meanwhile, the 5th respondent has passed suspension
order, dated 30.04.2018 and placed the petitioner under suspension with
effect from 01.05.2018. The management had raised various allegations
against the petitioner and the main allegation as stated in the affidavit is
extracted here under:
“(i) The petitioner in the Whatsapp group has uploaded a
derogatory report about the School Management,
(ii) The petitioner has got "Double Degree" and if the same was
made known at the time of appointment, I could not have been
appointed,
(iii) The petitioner made a false report that all the original
certificates were handed over to the School Management,
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(iv) The petitioner did not produce "Genuineness Certificates" for
the Degree Certificates as instructed in the appointment order
and
(v) The petitioner did not pass "TET examination within five
years from the date of appointment.”
5. In the meanwhile, the petitioner filed W.P.(MD)No.11002 of
2018, challenging the suspension order and this Court has granted an
interim stay on 16.05.2018. Later, a compromise was arranged by the 3 rd
respondent between the 5th respondent and the four Teachers that they
have to pay Rs.5,000/- per month against the demand of Rs.13,000/- per
month. Subsequently the 5th respondent did not draw and pay the other
allowances, hence the petitioner submitted a representation dated
04.02.2022.
6. In the meanwhile the 5th respondent issued Show Cause Notice
in Letter No. 06/22 dated 15.02.2022 and the petitioner has submitted an
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explanation on 23.02.2022 to the memo. However, the 5 th respondent,
vide letter, dated 11.03.2022, issued a charge memo framing five charges
by repeating the same allegations. The petitioner has submitted an
explanation on 25.03.2022 denying all allegations.
7. Heard Mr.A.Vijayalakshmi, Party in person, Mr.V.Omprakash,
the Learned Government Advocate appearing for respondents 1 to 3 and
M/s.Pamelin Joseph, the Learned Counsel appearing for the respondents
4 and 5 and perused the records.
8. As far as the allegation of TET is concerned the petitioner
submitted that the 4th respondent school is a Minority institution and
hence TET is not necessary for minority institutions. This Court is not
inclined to accept this contention since as per T.M.A. Pai Foundation’s
case, the government has power to fix the qualification for teachers.
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W.P.(MD)No.23457 of 2022
Since TET is a qualification fixed for the teaches, the same is applicable
to the minority institutions also. However, in the present case at the time
of appointment the petitioner was not possessing the qualification of
TET, subsequently, she has passed TET on 28.03.2023. Therefore, the
said allegation that the petitioner is not possessing TET cannot be
sustained.
9. The next allegation is that the petitioner did not produce the
genuineness certificate for the B.Ed. Course. The contention of the
petitioner is that she had produced the genuineness certificate. However,
there was a defect while mentioning the year of course. The petitioner
was admitted to the B.Ed. course on 16.11.2007 and had completed the
course on 30.06.2008. But while issuing the certificate it was mentioned
that the date of admission as 16.11.2008. Hence the petitioner had
approached the college and obtained the rectification in the same
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certificate, wherein the Principal of the said College had strike out the
year as 2007 and affixed the signature and seal. The rectification was
issued on 16.11.2021. But the respondents submitted that as on the date
of obtaining the rectification the college is not in existence, hence, the
said rectification could not have been obtained. For this allegation, this
Court directed the official respondents to take instructions and submit
before this Court. The Learned Government Advocate on instructions
from the official respondents submitted that admittedly, the College was
in existence in the year 2007-2008 and the college was affiliated to
Madurai Kamaraj University. In the list of colleges affiliated to Madurai
Kamaraj University, the said Raj College of Education was listed in serial
No.46. The Learned Government Advocate further produced the
communication dated 22.05.2015 issued by National Council for Teacher
Education wherein it is stated that Raj College of Education after it has
consented to come under New Regulations is hereby granted recognition
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for conducting B.Ed. program. From these two documents it is evident
that the said College was functioning. But subsequently the college was
not functioning due to various and as on date a school is running in the
premises. After hearing the submission of the Learned Government
Advocate this Court is of the considered opinion that the submission of
the Management that the College was never in existence at all cannot be
accepted. Infact the Management ought to have ascertained the
genuineness by approaching the Madurai Kamaraj University. If the
Management had approached the Madurai Kamaraj University, this issue
would not have arisen at all. Therefore, this allegation cannot be
sustained.
10. As far as the double degree, open university degree is
concerned, the respondents contended that the petitioner has completed
B.Com. in the year 2006, B.A.(English) Degree in the year 2007 as one-
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W.P.(MD)No.23457 of 2022
year course, B.Ed. in the year 2008. The petitioner submitted that the
petitioner completed S.S.L.C. and Higher Secondary Course in the
regular stream. Then completed B.Com. in open university in the year
2003 itself. But the petitioner has completed B.A. English in open
university as one year degree in the year 2006-2007 and B.Ed.
2007-2008. Since the petitioner has completed B.Com. in the 10+2+3
pattern there is no illegality. Now the validity of B.A. and B.Ed. ought to
be ascertained. The issue of studying in open university is elaborately
dealt with by this Court in W.P.(MD)No.23360 of 2016 vide order dated
26.09.2022 in the case of A.V.Vahitha Begum reported in 2022 (2) WLR
917. The relevant portion is extracted hereunder:
“13. The issue of course offered in Open Universities without the
basic bachelor degree was considered in the case of Annamalai
University represented by Registrar Vs. the Secretary to
Government, Information and Tourism Department and others
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reported in (2009) 4 SCC 590. In that case one N. Ramesh was
temporarily promoted as Principle which was challenged by Sibi
Madan Gabriel stating that the said N. Ramesh without
completing bachelor degree has acquired master degree and
hence he is not qualified to be promoted as Principle. While
considering the case, the Hon’ble Supreme Court has held that
the said N. Ramesh is not eligible to be promoted, but his order of
appointment cannot be quashed for the reason that on the date of
completing the M.A. degree, it is possible to acquire the degree
without completing the bachelor degree. The Hon’ble Supreme
Court has also held that the Madras High Court was also on the
same view and the Hon’ble Supreme Court has confirmed the
said view. The relevant portion is extracted hereunder:
“33. It is also not a case as has been contended by Mr. K.
Parasaran as also Mr. R.V. Kameshwaran, that we should invoke
our jurisdiction under Article 142 of the Constitution of India.
Writ petitioners - respondents has moved the High Court at the
earliest possible opportunity. It is a case of promotion. It is not a
case of fresh entry in services. Our judgment would not affect the
service of appellant Ramesh. He cannot only be promoted to the
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post of Principal of the Institute. Even in the earlier round of
litigation, the Madras High Court opined:
"9. When all these reasons have been given by the Government
for appointing the appellant as the Principal, we see no
arbitrariness in the appointment and in particular, when the
stand of the University Grants Commission is clear that on the
date when the appellant obtained his M.A. Degree, it was
possible for a person who did not have the basic degree to obtain
the M.A. degree, the order appointing the appellant as the
principal cannot be quashed." In view of a long pending
litigation, in our opinion, it will be unjust to deprive the writ
petitioner - respondent from his lawful demand. We, therefore,
are of the opinion that it is not a case where discretionary
jurisdiction of this Court under Article 142 can be invoked.
14. The Hon’ble Supreme Court has also observed that, in the
earlier round of litigation, the Hon’ble Division Bench of Madras
High Court has opined as stated supra. On perusing the order
dated 14.02.2006 passed in the earlier round of litigation in
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W.A.No.1221 of 2005 and W.A. No. 82 of 2006 and W.P.No.
36307 of 2004, it has been held in para 7 of the judgment that,
“7. We were not sure to what extent we could rely on these letters
which are not supported by affidavit. Therefore in order to
ascertain the correct position, we issued notice to Mr.
Udayakumar, the Learned Standing Counsel for the University
Grants Commission and Mr. Udaykumar appeared in Court
today and submitted that at the relevant point of time when the
appellant obtained the M.A. Degree, the degree granted by the
Annamalai University was a valid one and that the U.G.C.
recognises such degrees.” After ascertaining from the U.G.C.
counsel, thereafter the Hon’ble Division Bench has held as stated
supra i.e. "9. When all these reasons have been given by the
Government for appointing the appellant as the Principal, we see
no arbitrariness in the appointment and in particular, when the
stand of the University Grants Commission is clear that on the
date when the appellant obtained his M.A. Degree, it was
possible for a person who did not have the basic degree to obtain
the M.A. degree, the order appointing the appellant as the
principal cannot be quashed."
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15. A similar case was considered by the Hon’ble Division Bench
of the Madras High Court in the case of K. Sakthi Rani Vs the
Secretary of the Bar Council of Tamil Nadu and others reported
in 2010 (2) Law Weekly 746 and the question for consideration is
whether the persons who studied law without basic degree, but
obtained Post Graduate degree in Open Universities are entitled
to be enrolled as Advocates and the judgment rendered in
Annamalai case is relied on. In K. Sakthi Rani’s case it has been
held that, it is after the Annamalai University’s case the Bar
Council refused to enrol the advocates who had not qualified
bachelor’s degree, but obtained master degree in open
universities. In the said Judgment it has been further held as
under: “49. Admittedly, neither the petitioners nor the Bar
Council of Tamil Nadu and the Bar Council of India are parties
to the above said judgment. The issue involved therein was the
promotion of the parties involved therein. Even in the said
judgment, the Honourable Apex Court was pleased to hold that
the appointment cannot be nullified, but the appellant will not get
the promotion based upon the said degree. Therefore, the
Honourable Apex Court was applying the law only for future
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promotion and it did not take away the right which has become
accrued and vested. … 51. Considering the above said principles
laid down by the Honourable Apex Court and applying the same
to the present case on hand, we are of the considered opinion that
the above said judgment of the Honourable Apex Court would be
a binding precedent insofar as it holds that a degree obtained
under the Indira Gandhi National Open University Act, 1985
from an Open University is not a valid degree in the eye of law.
However, the said judgment cannot be construed to hold that a
person, who after obtaining the said degree from the Open
University and thereafter, completed law course, would be barred
from getting himself enrolled. In other words, in a case where, a
right has been crystallised and vested, then the same cannot be
taken away. 52. Hence, we are of the opinion that the judgment of
the Honourable Apex Court cannot be made applicable to the
case of the petitioners herein who have completed the law course
even before the said judgment. Hence, we answer Point (iv) in
favour of the petitioners on the facts and circumstances of the
case.” Even in the present case the petitioner had completed
M.A. degree in the year 2003 i.e. even prior to the judgment
rendered in the Annamalai University case. In such
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circumstances applying the principles laid down in the aforesaid
Hon’ble Division Bench judgment and judgment rendered by
Hon’ble Supreme Court in the Annamalai’s case, this Court is of
the considered opinion the petitioner should succeed.
16. The Hon’ble Division Bench further held in the said K. Sakthi
Rani case that it is a well settled principles of law that a rule is to
be construed as prospective unless the same is made
retrospective. In other words until and unless it is shown that the
provisions are enacted with an intention to affect the existing
rights, it is deemed to be prospective alone. In the present case
there is no material to show that there are provisions or rules or
government orders which states that there is retrospective effect.
The Annamalai University had allowed such recruitment and the
candidates were in service until the university was taken over by
the Government. The issue was raised after the government had
taken over the university. Moreover after the judgment of the
Hon’ble Supreme Court in Annamalai University case, the
Government issued G.O.Ms. No. 116 P & AR (M) Department,
dated 18.08.2010, wherein it is stated that the P.G. Degree holder
who have obtained the said Degree in Open University System
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without qualifying bachelor’s degree is disqualified to seek public
appointment. Any government order would come into effect from
the date of issuance of the government order, since the
G.O.Ms.No.116 is issued on 18.08.2010. Therefore the candidates
who have obtained master degree in open university without
qualifying bachelor degree is not eligible for public employment
from 18.08.2010 and the cut-off date is only 18.08.2010.
Therefore this Court is of the considered opinion that the
petitioner and the similarly placed persons ought to be
considered in the light of the judgment rendered in Annamalai’s
case read with the G.O.Ms.No.116. It is pertinent to state herein
that it is because of the Annamalai’s case the government has
raised this issue, but in Annamalai’s case the Hon’ble Supreme
Court has held that the proposition laid down in the case is
applicable only prospectively and not retrospectively. In the
present case the petitioner had completed open university degree
in the year 2003 and hence the petitioner is eligible to be
considered for the Special Officer post.”
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Therefore, when the UGC recognized the Open University Degrees prior
to Annamalai University case, the same cannot be cited as a reason for
issuing termination order. Moreover, the G.O.Ms.No.116 dated
18.08.2010 was issued to declare the open university cannot be
considered for public employment, which means prior to 18.08.2010 the
degree was recognized. In the present case the petitioner had obtained
the degree in the year 2007, 2008 and hence it is prior to the said
G.O.Ms.No.116. Therefore, the allegation of double degree and open
university degree against the petitioner also cannot be sustained.
11. The Learned Counsel for the respondents relied on the order
passed in SLP(C)No.27633 of 2017 in the case of Sunil Kumar Soni V.
State of Rajasthan. The Hon’ble Supreme Court vide order dated
28.03.2023 has held that the petitioner Sunil Kumar Soni was in service
for just 15 days from 16.03.1999 to 01.04.1999 and from 1999 onwards
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the petitioner thereunder was not in service and a period of 24 years has
now passed. And thereafter held that the relief granted to others who
were appointed on the same day as Sunil Kumar Soni cannot be granted.
Since the question of law on the issue of eligibility of persons holding
Bachelor degree in Education through the distance education mode is
already settled by this Court and equality cannot be claimed in the matter
of illegality. There petitioner thereunder has worked for 15 days and was
not in service for the past 24 years and in such circumstances the
Hon’ble Supreme Court had passed an order. In the present case the UGC
has recognized the open university degree prior to Thirunavukarasu case
and G.O.Ms.No.116 came into effect from 18.08.2010, when the
petitioner had obtained the degree prior to the cut off dated of
18.08.2010, then the petitioner is entitled to continue in service.
Moreover, the Thirunavukarasu case judgment dated 14.08.2012,
whereas the petitioner was appointed on 09.01.2012, which is prior to the
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judgment. Hence, the above judgement relied on by the respondents is
not applicable to the present case. Therefore, the petitioner in entitled to
continue in service.
12. As far as the false report of handing over of original certificates
is concerned, the respondents contended that the petitioner has made
false report that all the originals were handed over to the school
management. Even though there was such allegation, it is submitted by
both the petitioner and the respondents that after the termination of the
petitioner, the original certificates are with the petitioner. Therefore, this
allegation is resolved.
13. As far as the allegation of the WhatsApp message is concerned,
the petitioner submitted there is a WhatsApp group and all the teaching
faculties are members of the WhatsApp group. There will be several
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circulations of messages in the group and the teachers would share the
difficulties among themselves. But the respondents have alleged that the
petitioner has uploaded derogatory messages in the WhatsApp group.
But the petitioner refuted the allegation and submitted there is no
evidence and hence, it cannot be attributed to the petitioner.
14. However, this Court is not inclined to accept the contention of
the petitioner. Since the posting messages in social media is affecting the
smooth relationship among individuals and also affects institutions. The
individuals are showing no restrain while posting their comments. Before
advent of social media, while communicating among individual certain
words were categorized as “harsh” and “unparliamentary” words are used
in social media quietly easily. Now it is the era of dangerous social
media. The petitioner being in the position to teaching youth ought to be
a role model herself and not to indulge in such communications in the
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WhatsApp. Infact the petitioner should be a role model to the teaching
faculties not to send derogatory messages. Therefore, this Court is
strictly warning the petitioner not to indulge in such activities in future.
15. With this warning, this Court is inclined to allow the writ
petition. The impugned order is quashed and the 5th respondent is
directed to reinstate the petitioner but with continuity of service.
However the petitioner is not entitled to backwages for non-employment
period. The said exercise shall be completed within a period of four
weeks from the date of receipt of a copy of this order.
16. For the reasons stated above, the writ petition is allowed in
above terms. No costs. Consequently, connected miscellaneous petition
is closed.
Index : Yes / No 15.06.2023
Internet : Yes
NCC : Yes / No
Tmg
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To
1.The Joint Director of Elemetary
Education (Minority),
DPI Campus, College Road,
Chennai - 600 006.
2.The District Educational Officer,
(formerly DEEO/ Madurai - DEO, Melur),
Madurai 625 001.
3.The Block Educational Officer,
Madurai East, Tallakulam,
Madurai 625 002.
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S.SRIMATHY, J
Tmg
W.P.(MD)No.23457 of 2022
15.06.2023
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