IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE C.T.SELVAM Writ Appeal No.4130 of 2004 & W.A.M.P.No.7785 of 2004 K.Nagarani .. Appellant/Petitioner vs. 1. Director of School Education, Chennai. 2. District Educational Officer (North), Chennai. 3. Secretary & Correspondent, P.T.Lee Chengalvaraya Naicker High School, Choolai, Chennai. 4. D.Pushpa .. Respondents /Respondents Writ Appeal against the order dated 16.07.2004 passed in WP.No.11413 of 2001 on the file of this Court. This Writ Petition filed under Article 226 of the constitution of India to issue a Writ of Mandamus, directing the third respondent managemetn to submit copy of the proposal dated 26.10.1998, to the 2nd respondent so as to enable the 2nd respondent to approve the appointment of the petitioner, as B.T.Assistant (Science) and direct the 2nd respondent to approve the appointment of the petitioner and confer all the consequential benefits. For Appellant : Mr.C.Selvaraju, S.C. For M/s.S.Mani For Respondents : Mr.J.R.K.Bhavanantham for R-3 Mr.K.Sridhar for R-4 Mr.M.Dhandapani, Spl.G.P. Assisted by P.Gurunathan, G.A. For RR1 and 2 --- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Delivered by PRABHA SRIDEVAN,J.) The appellant/writ petitioner was appointed as a science graduate teacher in the third respondent school on temporary basis in 1995. The Assistant Director, Professional & Executive Employment Office, addressed a letter dated 30.5.1998 to the Secretary, P.T.Lee Chengalavaraya Naicker Trust, to call for candidates for the vacancies to the post of B.T. Assistant Science (Chemistry) on Open Competition. Several names including the appellant's name were found in the list. The appellant was appointed as B.Sc., B.Ed., Maths Teacher by proceedings No.P.T.Lee CNT/A/768/98 dated 8.9.98. The District Educational Officer addressed a letter to the correspondent of the third respondent school that on the proposals sent by the third respondent school for approval of the appointment of the appellant, no approval will be given since the proposals sent by the school and rejected by the office on 9.7.99 had not been re- submitted. Thereafter, the appellant herself made a request on 3.1.2000 to consider her case sympathetically and appoint her permanently as Physics graduate teacher. Then, she filed the present writ petition for a mandamus to direct the third respondent to submit the proposal dated 26.10.98 to the second respondent to enable the second respondent to approve the appointment and direct the second respondent to approve the appointment. 2.The secretary of the third respondent school filed a counter stating that Rule 15(4) of the Tamil Nadu Recognised Private Schools Regulation Rules, 1974 must be followed in the appointment of the teacher and that by mistake, the committee of management, without considering the Rule 15(4) (ii) (i), adopted the procedure of Rule 15 (4) (ii)(ii) (c) by calling for the list of candidates from the Employment Exchange. The counter also referred to a letter dated 9.7.99 wherein the District Educational Officer had pointed out that there were eligible candidates to be appointed by way of promotion under Rule 15(4)(ii) (i) of the Rules. It is also averred in the counter that the petitioner is not qualified to be appointed as B.T. Assistant since she has studied in Telugu Medium. 3.When the matter came up for hearing, the learned Judge found that Rule 15(4) makes it clear how the appointment has to be made and that as a matter of priority, the post is to be filled up by promotion from among the qualified teachers in that school and thereafter, if no such person is available, to follow the other directions as laid down in the Rule. Respondent No.4 is one of the secondary grade teachers, who are in the employment of the school and there is nothing on record to show that they had been found unsuitable, in which event alone the next option would be available for the school while deciding the person to be appointed. Rule 15(4) reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "15. Qualifications, conditions of service of teachers and other persons. (1) ... (2) ... (3) ... (4)(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:- (i) Promotion from among the qualified teachers in that school. (ii) 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 resepct of Pre-primary, Primary and Middle School and that of the Chief Educational Officer inr espect 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." In these circumstances, the learned Judge found that there was no illegality committed by the second respondent in not according approval and therefore, while dismissing the writ petition held that the third respondent school shall take steps to fill-up the post in accordance with the provisions contained in rule 15(4) and if the petitioner is eligible, her candidature may also be considered. 4.The learned senior counsel appearing for the appellant/writ petitioner submitted that the appellant's appointment was never questioned, that the fourth respondent was nowhere in the picture when the appointment order was issued and that she was subsequently impleaded and her case cannot be projected in the writ petition filed by the appellant for re-considering her case. The learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel submitted that in the present case, rule 15(4) does not come into the picture at all and the only thing to be considered is Annexure III of the rules, which deals with the procedure for appointment of pay and allowances to teachers and other persons in private schools. The learned senior counsel, therefore, submitted that all that the appellant wanted was consideration of her case for approval of her appointment. 5.We do not think that the matter is as simple as projected by the learned senior counsel. The prayer is not only for a direction to re-submit her application, but for a direction to the respondents to consider her case and a direction to the second respondent to approve. So, really the petitioner wants a categoric direction from this Court to have her appointment approved of. When this is the prayer, it is difficult for us to accept the submission that the question of approval need not be decided in her writ petition. When we issue a mandamus and direct the authorities to act in certain manner, it is needless to say that our direction implicitly means that the action should be in accordance with law. No Court's order shall be considered as giving a direction that is contrary to law or in violation of a specific provision. It is only, therefore, that the learned Judge extracted Rule 15(4) and observed that unless the first option is ruled out and there are no qualified teachers to be appointed, the second option can be chosen and under electing the second option, there was no suitable candidate, then the third option and so on. The learned senior counsel for the appellant submitted that he would be satisfied if his request was directed to be considered and orders passed. The manner in which the words 'consider and pass orders' should be construed has been recently dealt with by the Supreme Court in (2006) 3 SCC 674, wherein it has been held as follows:- "17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to “consider” the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to “consider” the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. 18. We may also note that sometimes the High Courts dispose of the matter merely with a direction to the authority to “consider” the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for https://hcservices.ecourts.gov.in/hcservices/ the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to “consider” the matter afresh. Be that as it may. 19. There are also several instances where unscrupulous petitioners with the connivance of “pliable” authorities have misused the direction “to consider” issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to “consider” and dispose of the representation. When the court disposes of the petition with a direction to “consider”, the authority grants the relief, taking shelter under the order of the court directing him to “consider” the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order “to consider” as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to “consider”, may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court’s direction to “consider” the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders “to consider”. 20. Therefore, while disposing of the writ petitions with a direction to “consider”, there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter. https://hcservices.ecourts.gov.in/hcservices/ Therefore, we cannot shut our eyes to the explicit provisions of the Act and give directions to the authorities to "approve the appointment". 6.Seen in this light, the learned single Judge has correctly passed the order. Therefore, we do not think the direction given by the learned single Judge merits any interference. The writ appeal is disposed of directing the third respondent to take steps to fill up the post in accordance with the provisions contained in rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Act. The learned counsel for the fourth respondent submits that that exercise has been completed by the proceedings in P.T.Lee CNT/A/1026/01 dated 29.9.2004. No costs. Consequently, connected M.P. is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To 1. The Director of School Education, Chennai. 2. The District Educational Officer (North), Chennai. 3. The Secretary & Correspondent, P.T.Lee Chengalvaraya Naicker High School, Choolai, Chennai. 1 cc To Mr.K.Sridhar, Advocate, SR.25428 1 cc To Mr.S.Mani, Advocate, SR.25255 W.A.No.4130 of 2004 PUR(CO) SRA(8/7/2009) https://hcservices.ecourts.gov.in/hcservices/