IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 5.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.16473 of 1999 Raja Emmanuel Petitioner vs. 1. The District Education Officer, District Education Office, Palani (P.O.) Dindigul District. 2. The Chief Education Officer, The Chief Education Office, Dindigul. 3. The Joint Director of School Education (Personal), Sampath Maligai, College Road, Madras 600 008. 4. The Joint Director of School Education (Secondary Education), Sampath Maligai, College Road, Madras 600 008. 5. Santhi Nikethan Higher Secondary School, rep by its Correspondent, Ambilikkai, Ottanchatram Taluk, Dindigul District. 6. Arul Stephen Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing respondents 1 to 5 to permit the petitioner to continue his service as a Graduate Teacher in the fifth respondent school in pursuance of the appointment order dated 2.3.1998 passed by the fifth respondent https://hcservices.ecourts.gov.in/hcservices/ alongwith the salary payable from 2.3.1998. For petitioner : Mr.S.Krishnasamy For RR 1 to 4 : Mrs.C.K.Vishnupriya, G.A. For R5 : Mr.A.Immanuel For R6 : No appearance. ORDER The writ petition is filed by the unfortunate Graduate Teacher, who was sent out of service by the fifth respondent without any rhyme or reason, praying for a writ of mandamus to direct respondents 1 to 5 to permit the petitioner to continue his service as Graduate Teacher in the fifth respondent school. 2. The petitioner Raja Emmanuel was serving as Graduate Teacher purely on a temporary basis on a consolidated pay right from the year 1993 to 1997. Whileso, the Government passed G.O.Ms.No.523 School Education (D1) Department dated 29.12.1997 sanctioning four posts of BT Assistants and four posts of Second Grade Teachers to the fifth respondent school. The petitioner was appointed as Graduate Teacher in one of the four posts of BT Assistants sanctioned by the Government in the aforesaid Government Order from 2.3.1998 on the scale of pay of Rs.1400-40-1600-50-2300-60-2600. Considering his qualification to be appointed as Graduate Teacher, the fifth respondent, who is the competent authority to make appointment, issued the order of appointment to the petitioner. 3. The contention of the petitioner is that he worked in the fifth respondent institution upto 7.4.1998 and thereafter he came to the school on 8.6.1998 after the vacation recess to join the school, but, unfortunately, he was restrained from joining the school as Graduate Teacher on 8.6.1998 and he was not permitted to sign the attendance register. It is contended by the petitioner that as directed by the Correspondent of the fifth respondent, he met him in the month of July 1998, but, no interest was evinced to permit him to continue in the very same post. Having met respondents 1 to 4 personally, he has approached this court with the present writ petition as his meeting did not fructify. 4. Respondents 1 to 4, who are The District Education Officer, the Chief Education Officer, the Joint Director of School Education (Personal) and the Joint Director of School Education (Secondary Education) have filed counter after a lapse of nine long years contending that the appointment order issued to the petitioner was not at all communicated to the first respondent the District Educational Officer for approval. It is further contended that the order of appointment of the sixth respondent which was communicated to the first respondent was approved on 26.10.1998. The fifth respondent Santhi Nikethan Higher Secondary School represented by its Correspondent filed counter after a lapse of about nine years. It is contended that as the petitioner did not turn up for duty on https://hcservices.ecourts.gov.in/hcservices/ 28.3.1998, the sixth respondent was appointed in his place as BT Assistant. The sixth respondent has virtually sailed with the stand of the fifth respondent in the counter filed by him. 5. The court heard the submissions made by the learned counsel appearing for the petitioner, learned Government Advocate appearing for respondents 1 to 4 and the learned counsel appearing for the fifth respondent. There was no representation for the sixth respondent despite the fact that he chose to file counter. 6. There is no dispute to the fact that the petitioner worked in the fifth respondent institution right from the year 1993 to 1997 on a meagre consolidated pay drawn and paid to him with the fond hope that his services would be regularized in the future. He had served in the institution for a paltry salary. Pursuant to G.O.Ms.No.523 School Education Department dated 29.12.1997, the fifth respondent thought it fit to appoint the petitioner as BT Assistant to fill up one of the four posts of BT Assistants sanctioned by the Government in the aforesaid Government Order on 2.3.1998. 7. The learned counsel appearing for the petitioner would submit that the petitioner worked upto 7.4.1998 till the school closed for vacation and thereafter, he made an attempt to rejoin duty on 8.6.1998 on re-opening of the school, but, unfortunately, he was permitted not to sign the attendance register. It is his submission that inspite of the fact that the petitioner was appointed to a regular post sanctioned by the Government, without taking any disciplinary proceedings as against him, the sixth respondent was appointed allegedly on the date on which the petitioner was absent from attending the school. Sans any disciplinary proceedings as against the petitioner giving opportunity to him to answer the charges if any, the petitioner was shown the doors arbitrarily by the fifth respondent. Therefore, reinstatement in service as prayed for by the petitioner is warranted, he would submit. 8. The learned Government Advocate appearing for respondents 1 to 4 would submit that respondents 1 to 4 were kept in dark as to the order of appointment issued to the petitioner as on 2.3.1998, inasmuch as no copy of the order appointing the petitioner to a regular post was communicated to the first respondent seeking approval. It is his further submission that the first respondent has to approve the appointment of the sixth respondent as it was sought to be approved by the fifth respondent. Therefore, she would submit that respondents 1 to 4 are not concerned with the controversy now arisen on account of sacking of the petitioner from the service. 9. The learned counsel appearing for the fifth respondent would submit that the petitioner abstained from duty on and from 28.3.1998 and therefore, the sixth respondent Arul Stephen was appointed as BT Assistant on the very same day. He would further submit that there was no mala fide intention on the part of the fifth respondent in terminating the service of the petitioner. Giving details of the benevolent attitude of the school authorities, he would submit that https://hcservices.ecourts.gov.in/hcservices/ no ill intention or motive can be attributed to the fifth respondent in appointing the sixth respondent in the place of the petitioner who absented himself from duty on and from 28.3.1998. He would further submit that the offer made by the fifth respondent through the Correspondent of the School was not accepted by the petitioner. 10. The petitioner would contend that he, in fact, served in the fifth respondent educational institution upto 7.4.1998 the day on which the school closed for vacation. The fifth respondent would contend that even as early as on 28.3.1998, prior to the commencement of the vacation, the petitioner absented himself from duty and therefore, the fresh appointment was necessitated. 11. In all fairness, the fifth respondent should have produced before this court for scrutiny the attendance register to establish that the petitioner worked only upto 27.3.1998 and not upto 7.4.1998. An adverse inference is drawn on account of non-production of the attendance register maintained by the fifth respondent school that the petitioner did work till 7.4.1998 the day on which the school was closed for vacation. 12. It is found that even when the petitioner was in service in the fifth respondent institution till 7.4.1998, the fifth respondent had appointed the sixth respondent as BT Assistant in the place of the petitioner as on 28.3.1998. The action of the fifth respondent is found to be ex facie arbitrary and illegal inasmuch as the order of appointment of the sixth respondent was passed by the fifth respondent when the petitioner was serving in the institution in the very same vacancy. 13. The order of appointment issued to the petitioner would disclose that a copy of the order was endorsed to the first respondent so as to seek approval of the appointment of the petitioner. Unfortunately, respondents 1 to 4 would take a stand that no such communication was received by them seeking approval of the appointment of the petitioner as BT Assistant. It appears that a copy of the order appointing the sixth respondent had reached the office of the first respondent immediately after the appointment of the sixth respondent and his appointment was approved by the first respondent as on 26.10.1998. No reason could be assigned by the fifth respondent as to why a copy of the order of appointment endorsed to the first respondent appointing the petitioner did not reach the first respondent. If at all the copy of the order of appointment of the petitioner was despatched to the first respondent, the first respondent would have definitely acted upon it and would have also attempted to question the appointment of the sixth respondent in the place of the petitioner herein. There is a clear lapse on the part of the fifth respondent in not processing the approval of the appointment of the petitioner in time. 14. Even assuming for the sake of argument that the contention of the fifth respondent that the petitioner failed to turn up for duty on 28.3.1998 was true, the fifth respondent has no authority to https://hcservices.ecourts.gov.in/hcservices/ appoint the sixth respondent in the place of the petitioner, the day on which the petitioner allegedly absented himself from duty. It is contended by the learned counsel appearing for the fifth respondent that issuance of show cause notice as to the absence of the petitioner would arise only after the appointment of the petitioner was approved by the first respondent. I am not convinced with the submission made by the learned counsel appearing for the fifth respondent. The order of approval that would be passed by the first respondent would take effect from the date of appointment of the petitioner to the vacancy already notified by the Government in the aforesaid Government Order. Leave alone the disciplinary proceedings which would be normally resorted to by the appointing authority before sacking a person, the fifth respondent has not issued a notice to the petitioner calling upon him to explain as to why he absented himself from duty on 28.3.1998. The court is completely baffled on seeing the speed at which the sixth respondent was appointed by the fifth respondent on coming to know that the petitioner was absent on a particular day. Such a haste in the approach of the fifth respondent cannot be countenanced by the court of law. No employee can serve safely if such marching orders are issued for the absence of an employee for a few hours in a day. To say the least, the fifth respondent has completely thrown to wind the procedure to be adhered to in sacking a regular employee from service. 15. The learned counsel appearing for the fifth respondent would submit that the fifth respondent may not be saddled with the obligation to pay arrears of salary for the period the petitioner had not served in the institution. 16. Per contra, the learned counsel appearing for the petitioner would submit that the petitioner had to suffer for so long a time for no fault of him. It is his further submission that the offer of the lower post made by the fifth respondent cannot also be a ground to reject the claim for backwages from the fifth respondent. 17. There is nothing on record to show that the petitioner was employed elsewhere during the period when he was out of service from the fifth respondent. He has served in the fifth respondent institution for about four long years with the fond hope that his services would be regularized in the future. He had suffered ignominy on account of the marching orders issued by the fifth respondent. The fifth respondent has not chosen even to pass an order of termination of services of the petitioner who had put in about four years of service. Therefore, monetary benefit of backwages and attendant benefits cannot be denied to the petitioner. 18. In view of the above, a writ of mandamus is issued to the fifth respondent to permit the petitioner to continue in service as Graduate Teacher in the school of the fifth respondent pursuant to the order of appointment issued to him on 2.3.1998 within one week from the date of receipt of this order and pay all backwages and attendant benefits to the petitioner right from 2.3.1998 within two https://hcservices.ecourts.gov.in/hcservices/ months from the date of receipt of this order and the first respondent is directed hereby to approve the order of appointment of the petitioner issued by the fifth respondent as on 2.3.1998 without waiting for any formal correspondence from the fifth respondent seeking approval of the appointment of the petitioner within one month from the date of receipt of this order. On account of the reinstatement of the petitioner herein as BT Assistant pursuant to the order of appointment issued by the fifth respondent on 2.3.1998, if any consequential reversion of the BT Assistant appointed later is to be made by the fifth respondent, the fifth respondent is at liberty to do so. The writ petition stands allowed accordingly. There is no order as to costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ssk. To 1. The District Education Officer, District Education Office, Palani (P.O.) Dindigul District. 2. The Chief Education Officer, The Chief Education Office, Dindigul. 3. The Joint Director of School Education (Personal), Sampath Maligai, College Road, Madras 600 008. 4. The Joint Director of School Education (Secondary Education), Sampath Maligai, College Road, Madras 600 008. https://hcservices.ecourts.gov.in/hcservices/ 5. The Correspondent, Santhi Nikethan Higher Secondary School, Ambikkai, Ottanchatram Taluk, Dindigul District. +1 C.C. to Mr.A.Immanuel, Advocate – SR NO.15312 +1 C.C. to Mr.S.Krishnasamy, Advocate – SR No.15709 +1 C.C. to the Government Pleader – SR No.15647 +1 C.C. to Mr.S.Sivakumar, Advocate – SR No.15513 W.P.No.16473 of 1999 5.3.2010. BK(CO) https://hcservices.ecourts.gov.in/hcservices/