IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.9.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition No.13310 of 2003 TDTA Management Schools (CSI Diocese of Tirunelveli), rep. by its Manager TDTA Higher Secondary, Secondary Special Schools, Teacher Training Institute .. Petitioner -Vs- 1.Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9. 2. The Director of School Education College Road, Chennai-6. 3. The Chief Educational Officer, Tuticorin District, Tuticorin. 4. The District Educational Officer, Kovilpatti. 5. The District Educational Officer, Tuticorin. 6. P.Panneer Selvan (R6 impleaded as per order dated 24.7.2006 in WPMP.42486/2004 in W.P.No.13310/2003) ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus to call for the records of the 1st respondent issued in G.O.Ms.No.104, School Education Department, dated 12.7.2002 and the consequential order of the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent issued in O.M.No.11820/A2/2002 dated 6.1.2003 and the order of the fifth respondent issued in O.M.No.389/A2/02, dated 10.3.2003, quash the same and to direct the respondents to approve the appointment of P.Panneer Selvan, Weaving Instructor from 3.10.2002 appointed in TDTA Higher Secondary School, K.Kailasapuram and Vimala Elizabeth Victoria, Drawing Mistress from 7.1.2003 in Caldwell Higher Secondary School, Tuticorin with salary and other benefits. For petitioner : Mrs.P.Mahalakshmi for Mr.K.Ravichandrabaabu For respondents : Mr.S.V.Duraisolaimalai A.G.P for R1 to R5 Mr.K.Sathish Kumar for Mr.K.Vijayakumar for R6. ORDER The petitioner viz., TDTA Management Schools (CSI Diocese of Tirunelveli), represented by its Manager, TDTA Higher Secondary Special Schools, Teacher Training Institute filed this writ petition seeking for issuance of a writ of certiorarified mandamus to call for the records of the 1st respondent issued in G.O.Ms.No.104, School Education Department, dated 12.7.2002 and the consequential order of the fourth respondent issued in O.M.No.11820/A2/2002 dated 6.1.2003 and the order of the fifth respondent issued in O.M.No.389/A2/02, dated 10.3.2003, quash the same and to direct the respondents 1 to 5 to approve the appointment of P.Panneer Selvan, Weaving Instructor from 3.10.2002 appointed in TDTA Higher Secondary School, K.Kailasapuram and Vimala Elizabeth Victoria, Drawing Mistress from 7.1.2003 in Caldwell Higher Secondary School, Tuticorin with salary and other benefits. 2. During the pendency of the writ petition, the affected teacher P.Panneer Selvan has been impleaded as sixth respondent. 3. The learned counsel for the petitioner submits that the petitioner management is administering 488 Primary Schools, 148 Middle Schools, 30 Higher Secondary Schools, 9 High Schools, 4 Teacher Training Institutes, 7 Arts and Science Colleges, 2 Engineering Colleges (unaided), 1 Polytechnic (unaided),1 B.Ed. College (unaided) and 3 Special Schools, one for the deaf (aided), one for blind (aided) and mentally retarded (unaided) and also one Industrial School. The learned counsel for the petitioner further submits that the petitioner management is declared as Christian Religious Minority Institutions within the meaning of Article 30(1) of the Constitution of India and this Court in W.P.No.294 of 1975. When all the higher secondary schools, primary schools and middle schools are fully aided, the management also having some high schools without any aid from the Government. It is also https://hcservices.ecourts.gov.in/hcservices/ submitted by the learned counsel for the petitioner that all these facts go to show that the petitioner is a premier educational agency. 4. When the matter stands as above, the first respondent has issued G.O.Ms.No.104 Education Department dated 12.7.2002 prohibiting the appointment of Special teachers other than sewing and music in aided schools. But the said G.O.Ms.No.104 was not communicated to the petitioner school by the Educational authorities. The learned counsel appearing for the petitioner brought to the notice of this Court a proceeding dated 27.3.2003 issued by the Director of School Education, in and by which, the petitioner school was informed that the above said G.O.Ms.No.104 has banned the appointment of special Teachers except the sewing or music Teacher and the said G.O.104 is made applicable to all aided and unaided schools. In the light of the proceedings dated 27.3.2003, the District Educational Officer by his proceedings dated 10.9.2003 brought to the notice of the District Educational Officer, Tuticorin the proceedings dated 10.9.2003 passed in Na.Ka.No.2506/A3/03 informing the petitioner management about the ban order issued in G.O.Ms.No.104 Education Department dated 12.7.2002 prohibiting the appointment of Special teachers other than sewing and music Teacher in aided schools. The said proceedings issued by the District Educational Officer was received by the petitioner only on 18.9.2003. But, however, the argument advanced by the learned counsel for the petitioner is that P.Panneer Selvan, Weaving Instructor and Vimala Elizabeth Victoria, Drawing Mistress were appointed as special teachers on 3.10.2002 and 7.1.2003 respectively, much before G.O.Ms.No.104 Education Department dated 12.7.2002 was communicated to the petitioner on 10.9.2003, which was received by the petitioner management only on 18.9.2003. It is further submitted by the learned counsel for the petitioner that since the special Teachers were already appointed in the school much before the communication of this G.O.Ms.No.104 Education Department dated 12.7.2002, this G.O.104 cannot be put against these two teachers in view of clause (c), wherein it specifically protected the previous appointments made prior to the issuance of G.O.Ms.No.104 Education Department dated 12.7.2002. When clause(c) of G.O.Ms.No.104 specifically states that appointments made prior to receipt of G.O.Ms.No.104 are protected, the appointments of P.Panneer Selvan, Weaving Instructor and Vimala Elizabeth Victoria, Drawing Mistress who were appointed on 3.10.2002 and 7.1.2003 respectively much before the receipt of G.O.Ms.No.104 are to be approved. However, when the respondents have approved the appointment of Vimala Elizabeth Victoria on 11.7.2006 by applying clause (c) of G.O.Ms.No.104, the same benefit should have been extended to Mr.Panneer Selvan who was appointed much before Vimala Elizabeth Victoria. 5. The learned counsel for the petitioner further contended that the action of the respondents in rejecting approval of Mr.Panneer Selvan alone on 6.1.2003, is not only arbitrary, but unjustified and unlawful. The second submission made by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner and sixth respondent is that even before the appointment of Mr.Panneer Selvan on 6.10.2002, one another teacher was appointed by name, Arokia Pyan Babu on 1.9.2006 and that was also approved by order dated nil, November, 2006 from the date of original appointment of Arokia Pyan Babu on 1.9.2006. 6. Therefore, when the respondents have communicated the ban order of G.O.Ms.No.104 to the petitioner management only on 10.9.2003, which was received by the petitioner on 18.9.2003 and even after the communication of ban order, when the first respondent has chosen to approve two appointments out of three appointments of Vimala Elizabeth Victoria and another appointment of Arokia Pyan Babu with effect from 1.9.2006 by their proceedings dated 1.11.2002, they cannot deny the appointment of Panneer Selvan who was appointed much prior to them on 3.10.2002. Even as per clause (c) of G.O.Ms.No.104, the appointment of Panneer Selvan made on 3.10.2002, is well protected. In that view of the matter, rejecting the case of Panneerselvam by the impugned orders of respondents 4 and 5, are liable to be set aside. 7. The learned Additional Government Pleader appearing for the respondents 1 to 5, by heavily relying upon the counter affidavit, has submitted that Mr.Panneerselvan has not possessed the requisite qualification viz., technical examination (higher grade). This argument is per se running contrary to the qualification mentioned in the rule. As per the Tamil Nadu Private Schools (Regulation) Rules, 1973, for Weaving Instructor, S.S.L.C completed and Government Technical Examination Certificate (lower grade) are required. Therefore, the rejection of appointment of the teacher Mr.Panneerselvan on the ground that he has not acquired the qualification of Technical Examination (higher grade), is misconceived, because Mr.Panneerselvan has passed S.S.L.C in the year 1972 and also acquired the technical examination certificate (lower grade) in May, 1979. Therefore, the teacher Mr.Panneer Selvan at the time of his appointment on 3.10.2002 has possessed the requisite qualifications for Special Teacher (weaving) as mentioned under the Rule. Therefore, the respondents 1 to 5 cannot deny the grant of approval in approving the appointment of Mr.Panneer Selvan in the post of Special Teacher (weaving). Secondly, when Mr.Panneer Selvan was appointed on 3.10.2002, the said appointment was made against the post of one Mr.Y.Noal, who obtained voluntary retirement service from the post. 8. In that view of the matter, since the ban order issued by the Government in G.O.Ms.No.104, School Education Department, dated 12.7.2002 was communicated to the petitioner by the Educational Authorities on 10.9.2003, which was received by the petitioner on 18.9.2003 and clause (c) of G.O.Ms.No.104, School Education Department, dated 12.7.2002 specifically states that all the appointments made prior to the issuance of G.O.Ms.No.104 shall be protected, the same will go in favour of the teacher Panneer Selvan, who was appointed on https://hcservices.ecourts.gov.in/hcservices/ 3.10.2002. Moreover, when three teachers were appointed in the petitioner management on 3.10.2002 (Panneer Selvan), 7.1.2003 (Vimala Elizabeth Victoria) and Arokia Pyan Babu on 1.9.2003 from Papanasegam Periya Sebarayar Higher Secondary School, the very same Educational Authorities, knowing pretty well that two other persons have also been covered by ban order, have chosen to give approval on 11.7.2006 in the case of Vimala Elizabeth Victoria in the petitioner management and another approval in favour of Arokia Pyan Babu by their order dated nil November, 2002 with effect from 1.9.2006. When the respondents 1 to 5 have given approval to two other teachers, they should have considered the same benefits to the teacher Panneer Selvan for the reason that Panneer Selvan was appointed much prior to those teachers in the place of one Mr.Y.Noal who obtained voluntary retirement from service on 20.9.2002. 9. With the above observation, the writ petition is allowed. It is made clear that since the respondents 1 to 5 have already approved the appointment of Vimala Elizabeth Victoria on 11.7.2006, the respondents 1 to 5 are directed to grant approval to the appointment of the teacher Panneer Selvan, Weaving Instructor with all other service benefits including the pay, within a period of three weeks from the date of receipt of copy of this Order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vks Copy to:- 1. The Secretary to Government of Tamil Nadu, School Education Department, Fort St. George, Chennai-9. 2. The Director of School Education College Road, Chennai-6. 3. The Chief Educational Officer, Tuticorin District, Tuticorin. 4. The District Educational Officer, Kovilpatti. https://hcservices.ecourts.gov.in/hcservices/ 5. The District Educational Officer, Tuticorin. +2ccs of Mr.K.Ravichandrabaabu, Advocate Sr 60954 +1cc to Govt. Pleader Sr 60863 UG(CO) km/18.11. W.P.No.13310 of 2003 https://hcservices.ecourts.gov.in/hcservices/