1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.726 of 2011 and M.P.(MD)No.1 of 2011 K.Karunakaran, Secretary, Thennur Middle School, Thennur, Tiruchi : Petitioner vs. 1.The Director of Elementary Education, College Road, Chennai-6. 2.The District Elementary Educational Officer, Tiruchi. 3.The Assistant Elementary Educational Officer, Tiruchi Urban, Tiruchi. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the entire records connected with the impugned order passed by the second respondent in Na.Ka.No.2783/A3/2010, dated 23.09.2010 and quash the same. For Petitioner : Mr.S.N.Ravichandran For Respondents : Mr.K.Mahesh Raja Government Advocate ORDER This Writ Petition is filed by the Secretary of the School Committee, challenging an order dated 23.09.2010 issued by the second respondent, the District Elementary Educational Officer, Tiruchi. By the impugned order, the second respondent directed direct payment system for the salary in terms of Rule 15(19) of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974. Three reasons were given by the second respondent. The first is the Educational Agency has not been registered, but without which, the school has been functioning till now and the explanation offered by the petitioner was not acceptable. Secondly, when the absence of Educational Agency being registered, the members of the School Committee have been elected and resolutions have been passed without the approval of the District Elementary Educational Officer and, https://hcservices.ecourts.gov.in/hcservices/ 2 therefore, the appointments made by the Management without the approval of the Education Department, was highly objectionable. Thirdly, the recognition given to the school and the registers and the documents were not complete in shape and the Educational Agency is not functioning and the Secretary was functioning on his own and, therefore, his explanation cannot be accepted and hence, the direct payment system was ordered. 2. When the Writ Petition came up for admission on 20.01.2011, this Court, while ordering notice of motion, granted an order of status quo for a period of four weeks. Subsequently, the order of status quo was extended. On notice from this Court, the second respondent has filed a counter-affidavit dated-Nil (February, 2011). In the counter-affidavit, it was claimed that in the retirement vacancy of two teachers, instead of keeping the posts vacant, the school sought permission to fill up the said posts. But, since there was a surplus, permission was not granted and the School had not filed any Writ Petition challenging the declaration of two posts as surplus. 3. On the question of approval of Educational Agency, it was stated that the petitioner was though asked to produce the original approval order, the same was not produced. With reference to the appointment of two teachers, it transpires that the School Management filed a Writ Petition before this Court being W.P.(MD) No.8877 of 2009 and that Writ Petition was allowed at the instance of the petitioner and the action of the respondents in resuming the post of two Secondary Grade Teachers was held to be against the judgment of a Full Bench of this Court in Director of Elementary Education vs. S.Vigila reported in 2006(5) CTC 385 and, therefore, their order was set aside. Since the school was having classes from Standards I to VIII, they are entitled to have eight teachers. As against the order passed by the learned Judge dated 26.03.2010, an appeal in W.A.(MD) No.86 of 2011 was filed before the Division Bench and the District Elementary Educational Officer is the second appellant in the said Writ Appeal and that Writ Appeal came to be dismissed by the Division Bench, by order dated 27.01.2011. The operative portion of the order of the Division Bench, as found in paragraph Nos.8 and 9, reads as follows: "8. The first respondent school is a middle school giving free education to students between the age of 6 and 14 and the teachers are also appointed in sanctioned posts. Therefore, we are of the considered view that the learned Single Judge was right in allowing the Writ Petition. No case is made out to interfere with the order of the learned Single Judge. 9. In the result, the order dated 26.03.2010 made in W.P.(MD)No.8877 of 2009 is confirmed and the Writ Appeal is dismissed. The appellants are directed to comply with the order of the learned Single Judge within a period of four weeks from the date of receipt of a copy of this order." https://hcservices.ecourts.gov.in/hcservices/ 3 Therefore, the grievance projected by the District Elementary Educational Officer regarding the illegal appointment, no longer survives, in the light of the order of the Division Bench, referred to above. 4. With reference to the registration of the Educational Agency and the School Committee not being approved by the Education Department, the learned counsel for the petitioner produced an additional typed-set of papers dated 21.04.2011, a copy of which has been furnished to the learned Government Advocate. In page No.18 of the Additional typed-set of papers, the proceedings issued by the District Elementary Educational Officer, dated 02.01.2011, is also referred to. The District Elementary Educational Officer, who is the same officer, who sworn to the counter-affidavit, had approved the election of the School Committee and allowed their functioning for a period of three years with effect from 21.10.2010 with certain conditions. It is not necessary for this Court to set out the conditions, as it does not arise for consideration in this case. It is suffice to state that serial No.3 in the said order is the same K.Karunakaran, who has been shown as the Secretary of the School Committee. Therefore, when the Officer, viz., the District Elementary Educational Officer approved the appointment of the election of the School Committee including the petitioner, nothing prevented him from referring to the same in his counter-affidavit, which is sworn to during February, 2011. This action of the second respondent is highly condemnable and this Court will have no hesitation to pass such orders against the said Officer, who passes different orders, at different times, at their whims and fancies. The two reasons set out in the impugned order do not exist any more and hence, the Writ Petition stands allowed and the impugned order of the second respondent dated 23.09.2010 stands set aside. However, this Court is constrained to direct the Director of Elementary Education, the first respondent herein, to take action against the second respondent for swearing to an affidavit during February, 2011, but does not refer to the material fact including the disposal of the Writ Appeal on 27.01.2011 and his own passing an order on 02.01.2011, approving the election of the School Committee. The action, if any, initiated against the second respondent, shall be intimated to this Court by the first respondent without fail. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The Director of Elementary Education, College Road, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/ 4 2.The District Elementary Educational Officer, Tiruchi. 3.The Assistant Elementary Educational Officer, Tiruchi Urban, Tiruchi. Copy to The Section Officer(Writ Section), Madurai Bench of Madras High Court, Madurai (For watching report) +1cc to Mr.K.K.Kannan Advocate, Sr.No.36623 sml ssk/04.11.2011 /6c -4p/- Order made in W.P.(MD)No.726 of 2011 Dated:- 20.10.2011 https://hcservices.ecourts.gov.in/hcservices/