IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.04.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.14708 OF 2009 AND M.P.NOS.1 AND 2 OF 2009 A.Shanjahan .. Petitioner Versus 1.The Director of Elementary Education College Road, Chennai – 600 006. 2.The District Elementary Educational Officer Villupuram. 3.The Assistant Elementary Educational Officer Kallakurichi – 606 202. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the entire records connected with the impugned order passed by the 2nd respondent in O.Mu.No.6119/A3/2008 dated 31.12.2008 and quash the same and direct the respondents 2 and 3 to approve the appointment of Tmt.V.Vijayalakshmi as Secondary Grade Teacher with effect from 21.08.2008 with all consequential benefits in the petitioner school. For Petitioner : Mr.S.V.Ravichandran For Respondents : Mr.Shivashanmugam Government Advocate * * * * * O R D E R The petitioner is the Secretary in Al Rahman Aided Elementary School which was started in the year 1946. Thereafter the recognition was given and the school received grant in aid by the respondents and has been governed by the Tamil Nadu Private School Regulation Act. https://hcservices.ecourts.gov.in/hcservices/ 2.There are 6 sanctioned teaching posts for the school consists of Headmaster and 5 Secondary Grade Teachers, in view of the retirement of the Headmaster on 31.05.2006 and the said post has not been filled up. For the vacancy arisen to the post of Secondary Grade Teacher in the year 2008, due to the retirement of one A.Shahjahan, by the proceedings dated 31.07.2008, the second respondent granted permission to the petitioner to fill the post of Secondary Grade Teacher. After following the procedures, by issuing paper publication and advertising the vacancy and in pursuant to the interview conducted on 20.08.2008, an appointment order was issued in favour of one Vijayalakshmi on 20.08.2008 and she joined the school on 21.08.2008. 3.Thereafter, the petitioner submitted the proposal for the approval of the appointment of the said Vijayalakshmi to the second respondent through the third respondent. The second respondent sought for certain clarifications from the third respondent which was also furnished by the third respondent on 16.10.2008. However an order was passed on 31.12.2008, rejecting the approval of the said Vijayalakshmi on the ground that the strength of the students is not adequate for the working of 5 Secondary Grade Teacher Posts as per G.O.Ms.No.525 dated 29.12.1997. 4.Mr.S.N.Ravichandran, learned counsel appearing for the petitioner submitted that the order impugned is liable to be set aside, since even as per the inspection report of the third respondent admittedly there are 5 Standards and in class 4 there are two Sections. The learned counsel further submitted that a perusal of the letter of the third respondent dated 06.09.2008 would clearly show that the number of students admitted for IV Standard is 70 and number of students present was 61. 5.The learned counsel appearing for the petitioner relied upon the judgment rendered in 2006 (5) CTC 385 [DIRECTOR OF ELEMENTARY EDUCATION v. S.VIGILA], which was followed by the Division Bench in CDJ 2008 MHC 2427 [THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER v. S.RACHEL JEYAPAULIN AND OTHERS] and submitted that in a case where the strength is beyond 60, there could be two sections to the particular standard and under those circumstances there can be one teacher for each section. 6.The learned counsel further submitted that the second respondent has committed an error in passing the impugned order based upon the subsequent inspection, since what was valued at the time of earlier inspection should be even taken into consideration. In support of his contention, the learned counsel relied upon the Government Order in G.O.Ms.No.1820, dated 21.11.1984 and submitted that the assessment of teaching grant https://hcservices.ecourts.gov.in/hcservices/ based on Teacher strength fixed as per average attendance in August should be continued till the end of the next July. 7.Per contra, the learned Government Advocate appearing for the respondents based upon the counter affidavit submitted that the impugned order has been passed based upon the inspection dated 11.12.2008 during which the strength of students was 182 and therefore it was decided that there is already one teacher in excess. 8.I have heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents. 9.Admittedly, as per the inspection report of the third respondent dated 27.08.2008, the petitioner is entitled to get the approval for the post of Secondary Grade Teacher. The impugned order has been passed based upon the subsequent inspection dated 11.12.2008. A perusal of the report dated 27.08.2008 would show that there are two sections functioning in class IV. The said report also indicates that the strength per class was 61 students. The letter dated 06.09.2008 sent by the third respondent to the second respondent would indicate that the total strength of the class IV was 70 and the available students was 61. It is also not in dispute that the petitioner is having two sections as seen by the Inspection Report dated 27.08.2008 made by the third respondent. The Full Bench of this Court reported in 2006 (5) CTC 385 [DIRECTOR OF ELEMENTARY EDUCATION v. S.VIGILA] as observed as follows: "23.Keeping in view the various relevant aspects, we feel that G.O.Ms.No.525, dated 29.12.1997 should be interpreted in the following manner: (1)The ratio of students-teacher strength as indicated in the G.O. should be primarily considered by taking each individual standard/section as a unit. (2)The minimum strength of teachers required obviously should not fall below the number of Standards/Section in a school. In other words, if there are five standards, obviously the minimum number of teachers should be five, out of which one would be the Headmaster. (3)If the students' strength in a particular Standard exceeds 60, at that stage, an additional section is required to be created requiring the sanction of a second teacher and the strength reaches 100, the post of a third teacher is required." 10.The said judgment followed by the Division Bench reported in CDJ 2008 MHC 2427 [THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER v. S.RACHEL JEYAPAULIN AND OTHERS] has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.Following the above said directions, the learned Single Judge has found that there was nothing in the counter affidavit dated 05.03.2007, to the Full Bench decision of this Court which binds not only the appellant but also the Director of Elementary Education, Chennai as he was a party to the decision. Relying on Paragraph 23(2) of the said judgment that the minimum strength of the teachers required obviously should not fall below the number of Standards/Section in a school, the learned Single Judge has set aside the order of transfer and further directed the appellant to re-do the exercise of fixing norms in the light of the Full Bench judgment cited supra. 8.The applicability of the Full Bench judgment to the facts of this case has not been questioned in the memorandum of appeal excepting to repeat that the norms laid down in the above G.O.Ms.No.525, School Education (D1) Department dated 29.12.1997 were followed. As the fixation of staff strength itself has been found to be contrary to the Full Bench decision, we do not find that there is any ground to interfere with the order which is impugned in this appeal. Accordingly, the writ appeal is dismissed. No costs. Consequently, M.P.(MD)No.1 of 2008 is also dismissed. 9.Taking into consideration the submission of the learned counsel appearing for the first respondent that she is working in the second respondent school without salary since 31.01.2007, the appellant is directed to disburse the salary and other monetary benefits to the first respondent within a period of two weeks from the date of receipt of a copy of this order." 11.Considering the same, this Court is of the opinion that the order impugned is liable to be set aside. In so far as the other contention of the learned counsel appearing for the petitioner is concerned, this Hon'ble Court in (2006) 1 M.L.J. 317 [AIDED ELEMENTARY SCHOOL v. STATE OF TAMIL NADU] has held that the strength of the students in August should be taken into consideration. The observation of the Division Bench is extracted hereunder: "9.With regard to second contention, even though the G.O.Ms.No.525, came into effect from 1.6.1998, it could not be implemented on account of pendency of writ petitions and writ appeals till November, 2000. After the dismissal of the writ appeals, the Government Order had been implemented by taking into account the strength https://hcservices.ecourts.gov.in/hcservices/ of students in August, 2001. It is perfectly valid, since the Government Order has been upheld and the same had been implemented in accordance with law and therefore no exception can be taken by the petitioners. The fact that there has been increase in the strength of students subsequently or number of teachers has dwindled by retirement, etc., cannot be a ground to invalidate the impugned order. It is also the submission of the Government that in the event of any particular order being incorrect and inconsistent with the Government Order in G.O.Ms.No.525, they had been corrected by appropriate orders. As the Government Order has been upheld finally and that the Government had implemented the Government Order strictly in accordance with its terms, the impugned orders cannot be invalidated and the respondents need not be directed to re-do the exercise." 12.Hence considering the above said ratio laid down by the Division Bench and also considering the Government Order passed in G.O.Ms.No.1820 dated 21.11.1984, this Court is of the opinion that even on the second ground regarding the period of inspection and the consequential strength to be taken into consideration, the order impugned is liable to be set aside, since it has taken into consideration the strength available as on 11.12.2008 as against the earlier inspection made by the third respondent. 13.Considering the above said legal principle and applying the facts on hand, this Court is of the opinion that the order impugned is liable to be set aside and accordingly, the same is set aside and the second respondent is directed to consider the application of the petitioner for the approval of the appointment of Mrs.Vijayalakshmi as Secondary Grade Teacher, within a period of six weeks from the date of receipt of a copy of this order. 14.With these observations, the writ petition is allowed. No costs. Consequently, the connected miscellaneous petitions are closed. sri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Director of Elementary Education College Road, Chennai – 600 006. 2.The District Elementary Educational Officer Villupuram. 3.The Assistant Elementary Educational Officer Kallakurichi – 606 202. + 1 cc to Mr. S.N.Ravichanran , Advocate SR No.25360 W.P. NO.14708 OF 2009 RV(CO) SR/17.5.2010 https://hcservices.ecourts.gov.in/hcservices/