1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.6230 of 2011 AND M.P.(MD)No.1 of 2011 T.M.S.Santhi ... Petitioner Vs. 1. The Tamil Nadu Director of School Education, College Road, Nungambakkam, Chennai 625 002. 2. The Chief Educational Officer, Tallakulam, Madurai 625 002. 3. The District Educational Officer, Tallakulam, Madurai 625 002. 4. The Secretary, Thiagarajan Higher Secondary School, Vasanth Nagar, Madurai 625 003. 5. M.Kannan, S/o.Mayandi Servai (Late), ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, directing the 4th respondent to consider the petitioner on compassionate ground to the post of Junior Assistant in his School at the vacancy caused by the retirement of Akbar Ali, by canceling the open recruitment initiated by him for the said post. For Petitioner : Mr.C.Dhanaseelan For Respondents 1 to 3 : Mr.S.Chandrasekar, GA For 4th Respondent : Mr.D.Sadiq Raja For 5th Respondent : Not ready O R D E R A poor lady, who had witnessed her husband, dying in Cancer, has been misled and forced to litigate before this Court, seeking employment assistance on compassionate grounds. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Though Mr.D.Sadiq Raja, learned counsel for the fourth respondent-School, has taken notice and sought for time for filing counter affidavit, nevertheless, he made detailed submissions, opposing the relief sought for, as it is not maintainable. The proceedings and the orders referred to by the learned counsel for the petitioner are already a matter of record and excepting the above, he has not pleaded on facts. Disputed facts may require counter affidavit to be filed. But, when facts are disputed, for the reasons to be stated in the following paragraphs and considering the manner, the petitioner was misled and especially, this Court passed orders, on the representation of the fourth respondent-School, that they would consider the case of the petitioner for appointment to the post of Record Clerk, which post admittedly was not permitted to be filled up by the Educational Authorities, the request of the learned counsel for the fourth respondent, for adjournment to file a counter affidavit, is rejected. As stated supra, learned counsel for the petitioner argued on the basis of official records and the orders passed by this Court. 3. The case of the petitioner, as deduced from the supporting affidavit and the materials on record is as follows: Petitioner's husband, Mr.T.Sankarlal, Physical Education Teacher in the fourth respondent-School, died out of Cancer on 24.10.2006, leaving behind the petitioner and his two children. His entire earnings and the minimum savings were spent to meet out the medical expenses, but he died. Right from the said period, not only the petitioner, her children struggled both mentally and physically and undergone inexplicable mental agony. After the death of petitioner's husband, a post of Junior Assistant fell vacant in the fourth respondent-School from 31.01.2008 on account of superannuation of one Mr.Akbar Ali. Even before his retirement, the petitioner sent a representation on 13.04.2007, to the fourth respondent, seeking appointment on compassionate grounds. But the School authorities did not show any interest in appointing the petitioner on compassionate grounds and therefore, ventilating her grievance, she sent a representation, dated 10.09.2008 to the Special Cell attached to the Hon'ble Chief Minister of Tamil Nadu, with copies marked to respondents 2 to 4, seeking appointment on compassionate grounds. But without considering the claim of the petitioner, the 4th respondent called for open recruitment for the post of Junior Assistant and in such circumstances, the petitioner filed W.P.No.816 of 2010, seeking for a Mandamus, directing the 4th respondent to consider her representations, dated 13.04.2007 and 10.09.2008. The above writ petition was allowed on https://hcservices.ecourts.gov.in/hcservices/ 3 27.01.2010, directing the 4th respondent to consider the representations made by the petitioner and pass appropriate orders on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of the order made in the said writ petition. 4.Subsequently, the 4th respondent has sent a interview letter, dated 11.02.2010, calling upon the petitioner to appear for a written test to the post of Junior Assistant on 17.02.2010 at 10.00. a.m. But the said letter has been received by the petitioner, only after the scheduled date of the written test and hence, she made an appeal to the Joint Director of School Education (Secondary School Education), through the 4th respondent, complaining about her non- consideration to the post of Junior Assistant on compassionate grounds and also the steps taken by the School to fill up the said post by direct recruitment. According to her, the process to fill up the post of Junior Assistant by open recruitment is wholly called for as per the orders of the Government and further instructions of the Directorate. According to him, the relief prayed in the earlier W.P.No.No.2029 of 2010 is only to consider the representation and when the same has been considered, there ends the matter and a fresh writ petition cannot be filed. 5. When the Director of School Education, Chennai, vide proceedings in R.C.No.3522-03-84, dated 19.12.1984, has issued orders, waiving the procedure of recruitment, through employment exchange and when the same procedure is also contemplated in G.O.Ms.No.2318, Department of Education, Science and Technology, dated 17.12.1983, the fourth respondent ought to have appointed the petitioner as Junior Assistant, to which post, she was qualified. If there was any requirement to obtain necessary orders, before resorting to appointment of the petitioner on compassionate grounds, the fourth respondent ought to have sent proposals, seeking permission for waiver of open recruitment, through employment exchange. Therefore, the petitioner was again forced to file a writ petition in W.P.No.2029 of 2010, seeking for a direction, forbearing the 4th respondent therein from filling up the post of Junior Assistant, without considering her representation. 6. During the pendency of the said writ petition, the 4th respondent sent a letter, dated 24.02.2011, stating that the case of the petitioner would be considered for appointment as Record Clerk, as the Director of School Education, Chennai, 1st respondent has granted permission for filling up a post of Record Clerk. The said letter was also produced before this Court in W.P.No.No.2029 of 2010 and after recording the same, this Court has passed an order, dated 11.03.2011, stating that the writ petition has become infructuous and accordingly, closed the same. However, after collecting the copy of the permission letter, dated 24.02.2011, issued by the Directorate to fill up the post of Record Clerk, the petitioner came to know that https://hcservices.ecourts.gov.in/hcservices/ 4 the post of Record Clerk cannot be filled up, in view of Condition No.5, mentioned in the proceedings of Director School Education, Chennai, in Na.Ka.No.87216-D1-E4-2009, dated 09.12.2010, which prohibits such appointment, in case, any Junior Assistant, Office Assistant, Lab Assistant and Librarian etc., is already working in the school. Therefore, the petitioner has contended that when there is no scope for appointing her to the post of Record Clerk, the 4th respondent has made a misleading statement before this Court and after the dismissal of the said writ petition as infructuous, has taken hectic efforts to fill up the post of Junior Assistant, in order to defeat her legitimate claim to the post of Junior Assistant, on compassionate grounds. 7.Being aggrieved by the order made in the abovesaid writ petition, which came to be passed on an erroneous submission of the fourth respondent, the petitioner filed a Writ appeal in W.A.S.R.No.16211 of 2011, against the order, dated 11.03.2011, passed in W.P.No.2029 of 2010. Since the cause title required some corrections, by way of deletion and addition of parties, the petitioner had withdrawn W.A.S.R.(MD)No.16211 of 2011 in M.P.(MD)No.1 of 2010 and accordingly, the same was withdrawn on 06.06.2011. In the meantime, the 4th respondent-School has sought for approval, for appointment of one Mr.M.Kannan, as Junior Assistant and therefore, the petitioner has sent a representation, on 28.05.2011 to the 4th respondent, to fill up the said post, on compassionate grounds. Though the 4th respondent has received the said representation, there is no response, which constrained the petitioner to prefer the present writ petition. 8. On the abovesaid pleadings and taking this Court through the proceedings in Na.Ka.No.87216-D1-E4-2009, dated 09.11.2010 and R.C.No.3522 D.3/84, dated 09.12.1984 of the Director of School Education, Chennai, relating to compassionate appointment and the orders made in W.P.No.2029 of 2010, dated 11.03.2011, learned counsel for the petitioner submitted that the Government have issued orders in G.O.Ms.No.2318, Department of Education, Science and Technology, dated 17.12.1983, waiving the procedure of direct recruitment through employment exchange, for providing employment assistance and therefore, the said Government Order and the instructions referred to earlier, have been deliberately flouted by the fourth respondent-School, by making a false representation before this Court, stating that the petitioner would be considered for the post of Record Clerk, as if the said post available, in the School, on the date of issuance of the order, dated 09.12.2010. 9. He further submitted that when the fourth respondent was aware of the fact that the post of Record Clerk could not be filled up, when any of Junior Assistant, Office Assistant, Lab Assistant, Librarian, etc., is working in the School, still he made this Court to believe that appropriate orders would be passed, considering the case of the petitioner, for the post of Record Clerk and by making such representation, got the writ petition dismissed as infructuous. https://hcservices.ecourts.gov.in/hcservices/ 5 But, simultaneously, the School was taking steps to appoint a person of their choice. 10. According to the learned counsel for the petitioner, when the petitioner's husband, a Physical Education Teacher in the fourth respondent-School, died in harness, the benefits of employment assistance, as provided by the Government, ought to have granted and when there is a willful refusal to follow the scheme of employment assistance, to attempt to defeat a legal and legitimate rights, a Mandamus has to be issued, as failure is apparent on the face of record. 11. Vehemently opposing the relief sought for in the writ petition, Mr.D.Sadiq Raja, learned counsel for the fourth respondent- School, submitted that the writ petition itself is not maintainable, as the appointment of the fifth respondent, has already been approved by the District Educational Officer, Madurai, vide D.Dis.No.2408/B1/2011, dated 29.06.2011. He further submitted that Mandamus to consider the case of the petitioner for appointment to the post of Junior Assistant in the fourth respondent-School, in the vacancy caused on account of superannuation of Mr.Akbar Ali, cannot be granted and even today, the School is ready to provide appointment to the petitioner, in the post of Record Clerk. He further submitted that unless the order of appointment of the 5th respondent is challenged in the manner know to law, the petitioner cannot seek for a Mandamus to the same post held by the 5th respondent. 12. According to the learned counsel for the fourth respondent, the petitioner cannot insist that she should be provided appointment in the post of Junior Assistant and it is always open to the fourth respondent-School to invite applications for filling up the said post, on merits. As the right of an educational institution to fill up the post, is protected under the Tamil Nadu Recognised (Private Schools Regulation) Act, and the rules made thereunder, no Mandamus can be issued, the relief has to be rejected. 13. On the allegation, as to whether the School had intentionally misled the petitioner, by giving an assurance that the petitioner's case would be considered for appointment to the post of Record Clerk, he submitted that unless counter affidavit is filed, disputing the facts, there cannot be any adjudication. He also submitted that when the post of Junior Assistant was notified, the petitioner could have made an application for consideration. For the abovesaid reasons, he submitted that the relief sought for in this writ petition is liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 6 14.Heard learned counsel for the parties and perused the materials available on record. 15. The Government in G.O.Ms.No.225, Labour, dated 15.12.1972, have issued orders, relaxing the general procedure of recruitment through employment exchange, of those, who fall outside the purview of the Tamil Nadu Public Service Commission, in favour of sons/daughters/wife/husband of government servants, who died in harness, leaving the family in digest circumstances, subject to certain conditions. Subsequently, the Government have made certain clarifications in G.O.Ms.No.560, Labour, dated 03.08.1977. While considering the question of concession to the staffs of aided schools, the Government have issued orders in G.O.Ms.No.2318, Department of Education, Science and Technology, dated 17.12.1983, extending the abovesaid concession. In the said G.O., the Director of School Education or the officer authorised by him, has been entrusted with the power to waive the procedure of recruitment through employment exchange. Pursuant to the same, the Director of School Education, Madras, in his proceedings in R.C.No.3522-03-84, dated 19.12.1984, issued orders, waiving the procedure of recruitment through employment exchange. The contents of the said order, dated 19.12.1984 are extracted hereunder: "2. They are requested to bring the contents of the above Government Orders to the notice of Managements of all Aided Schools in their jurisdiction immediately, obtain their acknowledgments, and file them in their offices. 3. The proposals for appointment on compassionate grounds should be submitted in the form prescribed as for Government service, and other conditions that are prescribed for such appointment from time to time should be satisfied, while individual cases are submitted to the Director for the issue of orders of waiving the procedure of recruitment through Employment Exchange. 4. While submitting such requests to the 'Director', the resolution of the School Committee for giving appointment to the sons/unmarried daughter/wife/husband of the deceased staff should be submitted. 5. So far as the appointment to the post of non-teaching staff are concerned, it should be ensured that the post should not be kept vacant https://hcservices.ecourts.gov.in/hcservices/ 7 for more than 6 months. If it is kept vacant for more than 6 months, these proposals should be submitted to the 'Director' in the first instance for getting permission of Government for filling up the post which is kept vacant for more than 6 months, and only after orders of Government are received in this regard, then the question if giving appointment on compassionate grounds may be taken up for consideration by the managements. While giving such appointments, it must be verified that the School is having a sanctioned post of non-teaching staff to which he/she is to be appointed. The information regarding the number and date of Government orders or Director's proceedings in which the post was originally created and last continued, should be furnished while proposals for appointment on compassionate grounds are submitted to the Director. 6. In respect of appointment to the post in the scale of pay of (Basic Servant) Office Assistant on compassionate grounds in aided institutions, orders waiving in individual cases, the procedure of recruitment through Employment Exchange need not be issued and before approving such appointments, the Inspecting Officers should however satisfy themselves about the fulfillment of all other conditions that are prescribed for such appointments. 7. In respect of other posts including teaching posts other than Basic Servants, orders waiving the procedure of recruitment through Employment Exchange for the appointment on compassionate grounds will be issued by the 'Director'. 8. The proposals in this regard, as and when received from the managements should be submitted to the 'Director' in a complete shape containing all the required particulars. 9. The receipt of these proceedings should be acknowledged immediately." 16. There is no dispute that the petitioner's husband had worked as Physical Education Teacher in the fourth respondent- School and at the time of his death, the petitioner was aged 34 years and her children were aged 13 and 14 respectively, studying https://hcservices.ecourts.gov.in/hcservices/ 8 in Standards 8th and 10th. According to the petitioner, she passed +2 (Computer Science) in the year 1989 and at the time, when she made a representation, dated 13.04.2007, for employment assistance on compassionate grounds, she was undergoing B.A. English Literature,. Since her representation to the fourth respondent did not evoke any response, she has made a representation to the Hon'ble Chief Minister (Special Cell) on 10.09.2008 and by that time, she had completed B.A. English Literature. Expressing her difficulty in educating her children, on account of sudden demise of her husband, she made the abovesaid representation, with copies marked to respondents 2 to 4. 17. At this juncture, vide proceedings in Na.Ka.No.98589/D1/E4/07, dated 04.01.2010, the Director of School Education, Chennai, has sanctioned a post of Junior Assistant to the fourth respondent-School. By virtue of the abovesaid orders, the fourth respondent-School has effected publication on 20.01.2010, in Madurai Newspaper, calling for applications for filling up the said post. The qualification notified for the said post is a pass in SSLC. Simultaneously, the School, by its letter, in Reference No.57/2009-2010, dated 21.01.2010, has requested the Assistant Director, District Employment Office, K.Puttur, to send a list of eligible candidates to fill up the vacant post of Junior Assistant. Though the petitioner had already made a request to the fourth respondent and other official respondents, explaining her indigent circumstances and the difficulty in bringing up her children, due to the sudden demise of her husband, quite contrary to the scheme of employment assistance on compassionate grounds, the fourth respondent has deliberately invited applications on the premise that the School has got a right to select the candidates for the post of Junior Assistant, on merits. 18. The contention of the learned counsel for the fourth respondent that the fourth respondent-School has got an exclusive right to notify and appoint a candidate, on merits, can be accepted in the normal circumstances, when there is no claim for employment assistant on compassionate grounds. When the Government in G.O.Ms.No.2318, Department of Education, Science and Technology, dated 17.12.1983 have extended the claim of employment assistance to the staff of aided private schools and a further direction of the Director of School Education, Chennai, dated 19.12.1984, waiving the procedure of recruitment, through employment exchange, has been issued, the action of the fourth respondent in inviting applications through open market, is not only a failure to adhere to the policy and scheme of employment assistance, but also a deliberate attempt on their part to ignore the legitimate claim of https://hcservices.ecourts.gov.in/hcservices/ 9 the petitioner, who in fact, had undergone the agony and hardship, when her husband was suffering from cancer. The fourth respondent has not even shown any sympathy to the writ petitioner, but resorted to recruit a person, through employment exchange, which has been specifically waived by the Government, when there is a claim for employment assistance, on compassionate grounds. 19. At this juncture, when the petitioner had approached this Court for a Mandamus to consider her representations, dated 13.04.2007 and 10.09.2008, this Court in W.P.No.816 of 2010, dated 27.01.2010, has directed the 4th respondent therein to consider the abovesaid representations and pass appropriate orders on merits and in accordance with law, within a period of six weeks from the date of receipt of the copy of the order made in the said writ petition. Pursuant to the abovesaid directions, the petitioner seemed to have sent a legal notice to the fourth respondent on 29.01.2010, to comply with the directions. 20. Though the fourth respondent had received the said legal notice, on the same day itself, he had called for an interview for the post of Junior Assistant and left with no other alternative, the petitioner had approached this Court, by filling another writ petition in W.P.No.2029 of 2010. In the said writ petition, the petitioner has sought for a Mandamus, forbearing the fourth respondent from filling up the post of Junior Assistant, based on the paper publication, dated 20.01.2010 effected in Madurai Mani Daily Newspaper, without considering her representations, dated 13.04.2007 and 10.09.2008, in consonance with the order, dated 28.01.2010, passed by this Court in W.P.(MD)No.816 of 2010. Interim injunction has also been sought for, restraining the fourth respondent from filling up the said post. Quite contrary to the Government Orders, stated supra, the Head Master of the fourth respondent-School, by memo, dated 11.02.2010, had asked the petitioner to appear for the written test for the post of Junior Assistant on 17.02.2010 at 10.00 A.M., at Thiagarajar Higher Secondary School, Tirupparankundram Road, Vasanthanagar, Madurai-3. As stated supra, when the Government have waived the procedure of recruitment through employment exchange in the case of compassionate appointment, the fourth respondent-School, in order to defeat the legitimate claim of the petitioner, has adopted a dubious method of calling for written test on 17.02.2010. 21. At this juncture, it is also relevant to note that the qualification prescribed for the post of Junior Assistant, as notified in Maduri Mani Newspaper on 20.01.2010, is a pass in SSLC, whereas, the petitioner has obtained a Bachelor Degree in English from Madurai Kamaraj University. When the Government Orders and the instructions issued from time to time, do not contemplate any https://hcservices.ecourts.gov.in/hcservices/ 10 written test to the dependent for compassionate appointment, for which, she is qualified under the rules, the fourth respondent deviating from the procedure and policy, has called for the petitioner to appear for a written test, which communication is stated to have reached the petitioner belatedly. When the abovesaid W.P.No.2029 of 2010 was pending on the file of this Court, the fourth respondent has sent a registered letter, dated 24.02.2011, to the petitioner, stating that vide orders, dated 09.11.2010, the Director of School Education, Chennai, has granted permission to fill up the post of Record Clerk and as per the directions of this Court made in W.P.No.816 of 2010, dated 27.01.2010, the School Committee has decided to give preference to her, while considering the appointment to the post of Record Clerk. When W.P.No.2029 of 2010, came up for consideration on 11.03.2011, Mr.D.Sadiq Raja, learned counsel for the fourth respondent herein, has produced the abovesaid communication, dated 24.02.2011 before this Court and made submissions to the effect that the case of the petitioner would be considered and recording such statement, the writ petition came to be dismissed as infructuous. 22. From the sequence of events, i.e., from the date of petitioner's representations, dated 13.04.2007 and 10.09.2008, addressed to various authorities, including the fourth respondent- School and their attempt to fill up the post, through employment exchange and calling for applications, by advertising in Newspaper, ignoring the legitimate claim of the petitioner, for employment assistance and by sending the letter, dated 24.02.2011, the petitioner has been made to believe, as if, her case would be considered for the post of Record Clerk, though she had made a claim for the post of Junior Assistant, which had fallen vacant on the retirement of one Mr.Akbar Ali on 31.01.2008. It is evident from the above, that the fourth respondent-School has no intention to give appointment to the petitioner on compassionate grounds. As stated supra, even before the post of Junior Assistant has fallen vacant, the petitioner has sent a representation, dated 13.04.2007. 23. To consider as to whether the assurance given by the School to the writ petitioner that her case would be considered atleast for the post of Record Clerk, by giving some priority, is bona fide or not it is necessary to have a look at the proceedings of the Director of School Education, Chennai, dated 09.11.2010, based on which, the fourth respondent-School, has issued a letter, dated 24.02.2011, to the petitioner which was also produced before this Court by the fourth respondent, resulting in dismissal of the W.P.No.2029 of 2010, as infructuous. https://hcservices.ecourts.gov.in/hcservices/ 11 24. Reading of the order, dated 09.11.2010, shows that the fourth respondent-School has been granted permission to fill up a post of Record Clerk, subject to the condition that if any, Junior Assistant, Office Assistant, Record Clerk, Lab Assistant, Helper, etc., is already working in the fourth respondent-School, the said order would not be applicable. Though the fourth respondent-School has already been sanctioned with a post of Junior Assistant