IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.28267 of 2004 T.Susila ... Petitioner vs. 1. The Director of School Education, Chennai-6. 2. The Secretary, Srinivasan Memorial Girls Higher Secondary School, Chatrapatti, Palani Taluk, Dindigul District. 3. P.Jeyalakshmi ... Respondents Writ petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records relating to the proceedings of the Director of School Education, Chennai-6, first respondent, made in Na.Ka.No.137253/W8/2000, dated 08.09.2004, and quash the same. For Petitioner : Mr.N.Damodaran For 1st Respondent : Mr.Edwin Prabhakar, Government Advocate For 2nd Respondent : Mr.K.Venkatramani, Sr. Counsel for Mr.H.Nazirudeen For 3rd Respondent : Mr.A.Thiayagarajan, Sr. Counsel for Mr.S.Ramesh Kumar O R D E R The petitioner has sought for a Writ of Certiorari to quash the proceedings of the Director of School Education, Chennai-6, first respondent, made in Na.Ka.No.137253/W8/2000, dated 08.09.2004 and for further orders. 2. Facts leading to the writ petition are as follows: The second respondent-School was originally a High School and it was upgraded as a Higher Secondary School by the proceedings of the Director of School Education, first respondent herein, dated 01.07.1989 from the academic year 1989-90, subject to the undertaking given by the Correspondent that the said school would not seek for any grant for the Higher Secondary School for three years. The petitioner was appointed as P.G. Assistant (History) and worked for a period from 07.08.1989 to 31.05.1994 (four years nine months and twenty five days) without any government grant. While so, the first respondent sanctioned staff grant for five posts of Graduate Assistant with effect from 01.06.1994, vide proceedings, dated 01.02.1995. Pursuant to the same, by proceedings dated 08.08.1997, the petitioner was permitted to draw monthly salary with effect from 01.06.1994. In the meanwhile, the existing incumbent Headmistress was suspended from service and therefore, the petitioner was appointed as Headmistress incharge from 25.07.1991. Ultimately, the said post fell vacant on retirement of the then Headmistress, who was under suspension. Since the petitioner has satisfied the minimum experience of 10 years of teaching experience, the Educational agency of the second respondent school promoted and appointed her as Headmistress of the school from 08.08.1999 and sent necessary proposals for approval on 30.06.2000 to the District Educational Officer, Palani and the said authority in his letter, dated 23.08.2000 granted approval of her appointment as Headmistress of the second respondent-School, subject to two conditions as mentioned in the said letter. Ever since the date of appointment, the petitioner has been paid salary in the post of Headmistress at the minimum time scale of pay. The District Educational Officer, Palani, in his letter dated 05.11.1999, has sent proposals to the Joint Director of the Higher Eduation, Chennai for approval of the said appointment. The Director of School Education, by his proceedings, dated 19.06.2000, upgraded the post of Headmistress from 01.06.1994 and also permitted the school to appoint a qualified person as Headmistress. While so, the third respondent, who was an inducted teacher, filed an appeal before the Director of School Education, Chennai, first respondent as against the order of the appointment of the petitioner as Headmistress of the said School. It is the grievance of the petitioner that she was neither served with a copy of the appeal grounds nor called upon by the first respondent to explain her stand on the grounds of objections filed by the third respondent. However, coming to know about the appeal filed by the third respondent, the petitioner sent her detailed objections to the appeal by Registered post and with acknowledgment due. The objections were acknowledged by the first respondent on 20.05.2004. When the petitioner was on casual leave from 27.09.2004 to 01.10.2004, she was served with the impugned proceedings dated 08.09.2004 of the first respondent, demoting her to the post of P.G.Assistant on the ground that she did not possess ten years of teaching experience, as required under the rules. In the said proceedings, the first respondent also relied on G.O.Ms.No.314, Education Department (D2), dated 12.11.1999 for arriving at the said conclusion. 3. Assailing the impugned order, the petitioner has contended that from December 2000, the Post Graduation, History subject was converted into P.G. Integrated Biology on the request of the second respondent-School and during March, 2001, the Department has sanctioned a post of P.G. History. At the time of filing of the Writ Petition, on the request made by the second respondent-School, P.G. History post was again converted into P.G. Economics and as such there was no sanctioned post for P.G. Assistant (History) in the second respondent-School and therefore, impugned order of the first respondent, demoting her to the post of P.G., Assistant (History) is illegal and liable to be set aside. The petitioner has further contended that even though an appeal remedy is available before the Tribunal under 24 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, since there is violation of Principles of Natural Justice, she has filed the present Writ Petition for efficacious remedy. 4. The third respondent in her counter affidavit has submitted that the petitioner, having filed a suit in O.S.No.1217 of 2004 on the file of the learned Principal District Munsif Court, Palani for declaration to continue in the post of Headmistress is not justified in filing this Writ Petition. She has further submitted that the impugned order is an appealable order under Section 24 of the Tamil Nadu Recognised Private Schools Regulation Act, 1973 and therefore, the Writ Petition is maintainable. She has further submitted that the documents filed in the typed set of papers in support of the Writ Petition relate to factual aspects and the same can be adjudicated only before the appellate forum. According to the third respondent, the petitioner was working as P.G. Assistant from 07.08.1989 to 31.05.1994 and from 01.06.1994 to 07.08.1999, totalling 7 years and 2 days and therefore, in terms of G.O.Ms.No.314, School Education (D2), dated 12.11.1999, the petitioner has not put in 10 years of teaching experience as P.G. Assistant and hence, not qualified to the post of Headmistress. 5. The third respondent has denied the contention of the petitioner that she was acting as Headmistress on 25.01.1991 and submitted that she was appointed and worked as Tamil Pandit from 22.06.1977, promoted as P.G. Assistant (Tamil) on 01.11.1989 and also acted as Assistant Headmistress on 01.08.2003 and therefore, she was fully qualified to be promoted as Headmistress of the school. Since the petitioner was the daughter-in-law of the Correspondent, she got herself promoted as Headmistress, overlooking the case of the third respondent. The third respondent has further submitted that coming to know of the appeal filed by her, the petitioner has sent a detailed objection to the appeal and therefore, there is no need to issue any notice to the petitioner and consequently, there is no violation of the principles of natural justice. When the impugned order was passed demoting the petitioner to the post of P.G.Assistant, in order to avoid the receipt of the order, the petitioner had deliberately absented herself by applying leave from 27.09.2004 to 01.10.2004 and filed the present Writ Petition. As the conduct of the petitioner is not genuine, she is not entitled to seek the equitable remedy. 6. Referring to the appointment order, dated 07.08.1989, to the post of P.G. Assistant (History), joining report dated 08.08.1999 of the petitioner as Headmistress, approval granted by the District Educational Officer, Palani in Mu.Mu.No.8457/A3/99, dated 20.10.1999, after satisfying with the experience certificate given by the Secretary of the second respondent-School, letter dated 05.11.1999 of the District Educational Officer, addressed to the Joint Director of School Education, Chennai, resolution dated 30.06.2000 of the School Committee and the proceedings of the District Educational Officer, in Na.Ka.No.4883/A3/2000, dated 23.08.2000, learned counsel for the petitioner submitted that the petitioner was appointed as P.G. Assistant in the year 1989 and after completion of 10 years experience as P.G. Assistant without any break, she was appointed as Headmistress and her appointment was duly approved by the District Educational Officer. He further submitted that the action of the first respondent, in demoting the petitioner to the post of P.G. Assistant (History) on the ground that she did not possess ten years of teaching experience as prescribed under the Rules, is illegal. He further submitted that the first respondent ought to have considered the fact that the petitioner was working as P.G. Assistant in the School, without any break since 07.08.1989, and therefore, satisfied the requirement for promotion as Headmistress. 7. Learned counsel for the petitioner further submitted that the first respondent has erred in interpreting G.O.Ms.No.314, Education Department (D2), dated 12.11.1999 and passed the impugned order without application of mind. The first respondent, being a quasi-judicial authority, ought to have provided a reasonable opportunity to the petitioner, by issuing a notice, calling upon her to submit her objections and provided personal hearing, before passing the impugned order and failure to do so, has resulted in violation of Principles of Natural Justice. In support of the above contentions, he placed reliance on the decisions of this Court in 1991 WLR 103 (Kalvi Pani (P) Ltd., v. The Director of School Education), 2005 (5) CTC 108 (R.Sulochana Devi v. D.M.Sujatha and others) and 2007 (2) CTC 135 (Munivenkatappa, M.S. v. State Bank of India). 8. Reiterating the contentions raised in the counter affidavit, Mr.A.Thiyagarajan, learned counsel for the third respondent has submitted that the petitioner has not produced any documentary proof to show that she was appointed as P.G. Assistant in the second respondent-School on 07.08.1989 and therefore, she does not possess the minimum teaching experience of 10 years as P.G. Assistant, for promotion to the post of Headmistress. Referring to the contents of the impugned order of the Director of School Education, dated 08.08.2004, he submitted that even as per the report of the District Educational Officer, dated 07.03.2002, the petitioner had worked only for 7 years and 2 days as P.G. Assistant and therefore, her demotion to the lower post is justfied in the light of the statutory provisions. 9. Learned counsel for the third respondent has further submitted that when the appointment of the petitioner to the said post is disputed, the remedy open to the petitioner is only to file an appeal provided under Section 24 of the Tamil Nadu Recognised Private Schools Regulation Act, 1973 and the factual aspects cannot be examined in this Writ Petition. Referring to the suit pending on the file of the learned Principal District Munsif, Palani, he submitted that when the purpose of the suit filed by the petitioner itself is for a declaration that she should continue as Headmistress in the second respondent-school, parallel remedy sought for by the petitioner in this Writ Petition is not maintainable. 10. The second respondent has not filed any counter affidavit. However, rebutting the averments made in the Writ Petition, Mr.Venkataramani, learned Senior counsel appearing for the second respondent-School submitted that the petitioner does not possess the minimum teaching experience to the post of Headmistress and therefore, prayed for dismissal of the Writ Petition. 11. Mr.Edwin Prabhakar, learned Additional Government Pleader appearing on behalf of the first respondent submitted that the petitioner had worked as P.G. Assistant between 07.08.1989 and 31.05.1991, without any staff grant in the second respondent school and when five posts of P.G. Assistant were sanctioned with effect from 01.06.1991, the petitioner was paid salary applicable to the post of P.G. Assistant. He further submitted that the petitioner had put in only seven years and two days of service. When the aggrieved third respondent filed an appeal to the Director of School Education, Chennai, a report was called for from the Chief Educational Officer, Dindigul and on consideration of the records, it was found that the appointment of the petitioner as Headmistress of the school was not in accordance with the Rules and therefore, she was directed to be demoted to the post of P.G.Assistant. He further submitted that since the impugned order is an appealable order, the Writ Petition filed before this Court is not maintainable in law. Heard the counsel appearing for the parties and perused the materials available on record. 12. Before adverting to the facts of this case, it is relevant to extract Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, which deals with promotion, "(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. (ii) Appointments to the various categories of teachers shall be made by the following methods:- (1) Promotion from among the qualified teachers in that school. (2) If no qualified and suitable candidate is available by method (i) above:- (a) Appointment of other persons employed in that school provided they are fully qualified to hold the post of teachers. (b) Appointment of teachers from any other school. (c) Direct recruitment. In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school the schools under that body shall be treated as one unit for purpose of this rule. (d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in clause (ii) either from the category of Headmasters of High Schools or Teachers' Training Institutes or from the category of Post-Graduate Assistants in academic subjects or Post- Graduate Assistants in Languages provided they possess the prescribed qualifications." 13. Part 4 of Annexure V in Rule 19 prescribes the necessary qualification for appointment of Headmaster or Headmistress (High Secondary Schools) and it reads as follows: "(i) A Master's Degree of a University in the State for teaching any of the languages under Parts I and II or subjects under Part III, Group "A" of the syllabus for Higher Secondary Courses or a Master's Degree of equivalent standard in anyone of the subjects of languages specified in the said syllabus or a certificate issued by the University of Madras for having undergone the Certificates Course in Science and Humanities for Graduate Teachers in High Schools during the year 1960-1964. (ii) B.T. or B.Ed., degree or its equivalent, (iii) Experience for a period of not less than ten years as B.T. Schools Assistant or Pandit in a Secondary School or Training School or Higher Secondary School recognised by the Director of Schools Education. Provided that the experience in the category of Headmaster and headmistress in a School recognised by the Director of School Education shall be taken into account for calculating the experience in the category of B.T. Assistant." 14. At the outset, let me consider the primary objection of the learned counsel for the respondents that as against the impugned order, a statutory remedy is available under Section 24 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 to the Tribunal and therefore, the Writ Petition is not maintainable. 15. It is the contention of the learned counsel for the petitioner that the first respondent being a quasi-judicial authority deciding an appeal, ought to have issued a statutory notice and provided an opportunity to the petitioner and failure to do so, has resulted in violation of the principles of natural justice. As per Section 15(4)(ii)(a), any person employed in a Higher Secondary School, aggrieved by an order issued under Sub-Rule 4, may prefer an appeal to the authorities specified in Column No.2, thereof. In so far as the Higher Secondary School Headmistress or P.G. Assistant (both academic and Languages) or Physical Director is concerned, the Joint Director of School Education, (Higher Secondary Education) is the appellate authority. 16. Being aggrieved by the appointment of the petitioner as Headmistress of the school from 07.08.1989, the third respondent, said to have been working in the second respondent-school as Tamil Pandit from 22.06.1977 and therefore senior to the petitioner, has submitted an appeal, dated 25.10.2000 to the Director of School Education, Chennai. The said authority after getting a report from the Chief Educational Officer, Dinidigul in his letter dated 07.03.2002 and interpreting G.O.Ms.No.314, Education Department (D2), dated 12.11.1999, has observed that the period of service rendered by the petitioner, during which, the school was not granted staff grant by the Government, cannot be taken into account for the purpose of the promotion and therefore, directed the District Educational Officer, Dindigul to demote the petitioner as P.G. Assistant holding that the petitioner had put in seven years and two days of service as P.G.Assistant. 17. Perusal of the impugned order of the District Educational Officer, dated 08.09.2004, discloses that the Director of School Education, Chennai has referred only three proceedings in the order, viz., (1) Appeal of the third respondent, dated 25.10.2000, (2) proceedings of the Director, dated 31.01.2001, and (3) letters of the Chief Educational Officer, Dindigul, dated 07.03.2002 and 14.03.2004 and there is absolutely no reference or consideration of the objections said to have been submitted by the petitioner and acknowledged by the Director of School Education on 20.05.2004. 18. In the above factual background, it is relevant to consider the decisions relied on by the learned counsel for the petitioner. 19. In Kalvi Pani (P) Ltd., v. The Director of School Education, reported in 1991 Writ.L.R 103, there was a controversy with regard to the appointment of Headmaster of Higher Secondary School. One of the contesting parties filed a revision petition before the State Government and the same was allowed, without hearing the Management. When the said order was questioned, a Division Bench of this Court, after extracting certain passages from the judgment of the Supreme Court, in Siemens Engineering and manufacturing Co., of India Ltd., v. The Union of India reported in AIR 1976 SC 1785 and Neelima Misra v. Harinder Kaur Paintal reported in AIR 1990 SC 1402, at Paragraph 2, held as follows: "It is not disputed before use that no notice to the writ petitioner was issued before the impugned order was passed calling upon him to show cause, and no opportunity of being heard before the impugned order was passed was thus afforded to him. Moreover a mere glance of the impugned order is enough to show that it does not satisfy the requirements of a quasi judicial order. There can be no doubt that an order of this kind by a statutory authority which is in the nature of adjudication of a dispute is a quasi judicial order." 20. So saying the Division Bench quashed the impugned order for non-compliance of the principles of natural justice. The Division Bench further observed that the law has developed so far, that an administrative order is invariably treated as a quasi-judicial order and the recent shift is to a broader notion of "fairness" and "fair procedure" in the administrative action. At this juncture, it would be useful to extract the passages from the judgments of the Supreme Court quoted in Kalvi Pani (P) Ltd's case (cited supra), "The Supreme Court of India has stated in Siemens Enginerring and Manufacturing Co. of India Ltd., V. The Union of India (AIR 1976 SC 1785), ""It is now settled law that wherean authority makes an order in exercise of a quasi-judicial funtion, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M.Desai Vs. Testeels Ltd., [C.A.NO.245 of 1970 decided on 17.12.1975 (SC)]. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a Court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If Courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be a so replaced, it is essential that administrative authorities and tribunals, should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."" The Supreme Court of India in Neelima Misra v. Harinder kaur Paintal (AIR 1990 SC 1402), has reiterated the law and stated, that an administive function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. The Supreme Court further states: "The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. As far as the administrative officers are conerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a 'lis'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric or fairness in the administration. But then even such an administrative decision unless it affects one's personal rights or one's property rights or the loss of or prejudicially affects something which would judicially be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice." 21. In R.Sulochana Devi v. D.M.Sujatha and others reported in 2004 (5) CTC 108, the Supreme Court, while considering the correctness of an order issued without notice, which adversely affected the rights and legitimate expectation, at Paragraph 24 of the judgment, observed that the order passed without issuing a notice is a nullity and therefore, it can be ignored by the appellant therein and held that the question of filing a review does not arise. The Supreme Court further observed that when the order passed by the authority was not in accordance with law and no notice was communicated to the aggrieved party, it is a nullity and need not be challenged in the Court of law. 22. On the question of availing the remedy under Writ jurisdiction, a Division Bench of this Court in Munivenkatappa, M.S. v. State bank of India reported in 2007 (2) CTC 135, after considering various decisions of the Supreme Court, held that in appropriate cases, in respect of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in atleast in three contingencies, viz., (1) where the Writ Petition seek enforcement of the fundamental rights (2) where there is failure of Principles of Natural Justice and (3) where the orders or proceedings are wholly without jurisdiction or whims of Act is challenged. 23. Therefore, the remedy of Writ being an absolute discretion, the High Court can always exercise the same if it is satisfied that there has been gross breach of natural