IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.39031 of 2003 and W.P.M.P.No.47301 of 2003 R.Abdul Kareem .... Petitioner Vs. 1.The Manager Sulthanpet Aided Muslim Primary School Tiruvannamalai 2. The District Elementary Educational Officer Tiruvannamalai ... Respondents This writ petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari, as stated therein. For Petitioner : Mr. S.N.Ravichandran For Respondents : Mr.R.Kannan-R1 Mr.A.Suresh-AGP(Edn)-R2 O R D E R The petitioner has filed this petition praying for issuance of a writ of certiorarifi,calling for the records of the first respondent in his proceedings Na.Ka.No.2/2003 dated 1.12.2003 and to quash the same. 2. The petitioner was a Headmaster of the first respondent/Primary School since 3.1.1993 till 1.12.2003 in the existing vacancy. It was not in dispute that he was the senior most teacher in the said school. He had not completed five years of qualifying service and therefore the second respondent/The District Elementary Educational Officer,Tiruvannamalai, refused to approve his promotion. Later, on completion of five years service, as Secondary Grade Teacher, his appointment as Headmaster was approved with effect from 3.1.1993. Further, he acted as Headmaster during the period between 16.1988 and 3.1.1993. According to the petitioner, the first respondent/Primary School is possessing a minority status and in the https://hcservices.ecourts.gov.in/hcservices/ first respondent/Primary School , there was a change in the Management of the first respondent/Primary School levelled frivolous charges against the petitioner and issued a charge memo dated 14.8.2003 containing six charges. Thereafter, by means of another charge memo dated 6.9.2003 six more charges were included,totalling in all 12 charges were levelled against the petitioner and the first respondent/Primary School called for an explanation within a period of 15 days and that he submitted his explanation on 16.9.2003 and the first respondent/Primary school without conducting an enquiry, had passed an order on 29.11.2003 holding that all the charges levelled against the petitioner were proved and also further observed that further action would be taken by the management and on 1.12.2003, the first respondent/primary school passed the impugned order in Na.Ka.No.2/2003 reducing him from the post of Headmaster to that of the Secondary Grade Teacher and hence he had filed the present writ petition to quash the impugned order of the first respondent/Primary School dated 1.12.2003. 3. The learned counsel for the petitioner contends that the impugned order of the first respondent/Primary School dated 1.12.2003 reducing the petitioner from the post of Headmaster to that of the Secondary Grade School Teacher was an utter violation of principles of natural justice and as a matter of fact, the petitioner was not provided with an opportunity to explain his position by means of an enquiry being conducted by the first respondent and more over, the impugned order was to be set aside on the simple ground that the said order purported to have been passed, after consulting the learned counsel for the first respondent/Primary school and indeed no outside agency or an individual would have any direct hand on the decision to be taken by the first respondent/Primary School and that apart, the first respondent/Primary School had not obtained the approval of the second respondent/District Elementary Educational Officer, Tiruvannamalai prior to the passing of the impugned order of penalty against the petitioner and therefore, prays for allowing the writ petition infurtherance of substantial cause of justice. 4. In response, the learned counsel for the first respondent/Primary School contends that the writ petition projected by the petitioner is not maintainable in law before this Court and the petitioner could very well appreciate the charges levelled against him and the charges levelled against the petitioner were of specific nature and first and foremost the Tamil Nadu Private Schools (Regulations) Act 1973 is not applicable to the first respondent/Primary School and even otherwise, as against the order passed by the first respondent dated 1.12.2003, the petitioner has got a right of appeal to the concerned authority and therefore, the writ petition filed by the petitioner is per se not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 5. Added further, it is the stand of the first respondent/Primary School that the first respondent/Primary school is a minority one founded on 5.12.1946 by one Abdul Sattar Sahib with an object of providing quality education to the students belonging to the Muslim Community and also the students of other community and the school recognised by the Government of Tamil Nadu has been received aid from the Government vide No.333/5/12/1946 and earlier the school was administered by Babu and after the demise of Babu, the Gorimedu Jamathars filed a suit claiming the right to manage the school and during the pendency of the suit, between 15.9.1988 and 4.10.1998, the Management of the School came within an ambit of the Special Officer, Education Department and later when the suit ended in favour of the first respondent/Primary School, the Management was taken over by the first respondent and the Management of the School received complaint that the teaching of Urdu subject was affected due to frequent absent of the petitioner to attend to his personal works and also that the petitioner has acted prejudicially to the maintenance of the school as minority institution . 6. Also by advocating to dispense with the teaching of Urdu, the petitioner also, prepared monthly reports showing the absence of student for the study of Urdu and transmitted the same to the second respondent and that besides the above, he also committed other irregularities and insubordination as detailed in the charge memo and therefore, the first respondent/Primary School was necessitated to serve first and second charge memo on the petitioner, which at the earliest point of time, he refused to receive and later the same was received by the petitioner which was not in dispute and more over inspite of several notices being served on the petitioner, he neglected to appear and answer the charge memo and after being reduced in writing consequent to the finding of the enquiry, handed over his charge as Headmaster to the new Headmaster appointed by the Management and only after the change in Management, the first respondent/Primary School was fully aware of the petitioner's misdemeanors. 7. Mr.A.Suresh, the learned Additional Government Pleader (Education) submits that the petitioner was appointed as Headmaster of the first respondent/Primary School in the vacancy caused due to retirement of the existing Headmaster on 1.6.1988 and he was not having the requisite qualification of five years regular services in Secondary Grade Post which was one among, the requisite qualifications for appointment as a Primary School Headmaster, but due to non-availability of any other qualified person, he was appointed by virtue of his seniority and his appointment as Headmaster was approved by the Educational Officer only from 3.1.1993 after the completion of five years of service in Secondary Grade post etc and till then, he was received only the Secondary Grade Teacher's salary and served as Headmaster and from 3.1.1993, he received the https://hcservices.ecourts.gov.in/hcservices/ Headmaster's salary and his appointment as Headmaster of the first respondent/Primary School was approved with effect from 3.1.1993 as per proceedings of the second respondent in O.Mu.9957/B1/97 dated 29.12.1997 and the school management got changed from one Babu to the present Manager R.Noorjahan and the present Manager of the School who issued charge memo to the petitioner on 14.8.2003 with six charges also issued another charge memo consisting of 12 charges before obtaining the explanation for the first charge from the petitioner and after submission of the explanation by the petitioner, the first respondent/Primary School issued orders to the effect that of the charges were proved and later the first respondent issued impugned order dated 1.12.2003 reverting the petitioner from the post of Headmaster and posted as Assistant Secretary Grade Teacher and usual procedures were not followed by the first respondent/Primary School in the disciplinary case, before passing the final orders and that the petitioner was not provided with sufficient opportunity to explain his position either in writing or by enquiry and through personal hearing and added further the permission of the concerned authority viz., the second respondent/District Elementary Educational Officer, Tiruvannamalai was not competent by the first respondent before passing final orders and the punishment of reversion was awarded to the petitioner and therefore the action of the first respondent/Primary School was in violation of Rules and natural justice and in the instant case on hand, there was violation of Rules 17 of the Tamil Nadu Recognised Private Schools(Regulations) Act for awarding any punishment for passing final orders since no approval of the second respondent was obtained. 8.Countering the submission of the learned counsel for the respondents, the learned counsel for the petitioner contends that the petitioner had denied the allegations/charges levelled against him by the first respondent/Primary School and as a matter of fact, during the tenure of office of petitioner, as Headmaster, the first respondent/Primary School student's strength was increased and the reports submitted by the petitioner to the second respondent show that the petitioner performed his duties as Headmaster and since the first respondent had cooked up baseless charges against the petitioner wilfully and the impugned order came to be passed without conducting any enquiry, the impugned order dated 1.12.2003 reducing the rank of the petitioner from the post of Headmaster to that of the Secondary Grade Teacher was liable to be set aside and consequently, the writ petition needs to be allowed in the interest of justice. 9. Expatiating his submission, the learned counsel for the petitioner submits that the petitioner in his explanation dated 16.9.2003 to the charge memo dated 14.8.2003 and 6.9.2003 had not admitted any of the charges but unfortunately, the first respondent without conducting an enquiry had passed the impugned order dated 1.12.2003 reducing the status of the petitioner from the post of https://hcservices.ecourts.gov.in/hcservices/ Headmaster to that of the Secondary Grade Teacher in question without conducting an enquiry as required by the principles of natural justice and since the reduction in rank of the petitioner was made by the first respondent/Primary School in utter disregard to the principles of natural justice, the same has to be set aside since the reduction in rank amounts to major punishment (affecting one's position and also hitting at the monetary benefits) and to lend support to his contention , he relies on the decision of the Hon'ble Supreme Court in Parshotam Lal Dhingra-v- Union of India(AIR 1958 Supreme Court 36 at 47 at para 25)wherein it is held as follows: "It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words"dismissed",removed" and 'reduced in rank", as used in the service rules, were well under stood, as signifying or denoting the three major punishments which could be inflicted on Government Servants. The protection given by the rules to the Government Servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in Sub-ss (1) and (2) of S.240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Art .311 of our Constitution. The effect of S.240 of the 1935 Act reproduced in Arts.310 and 311, as explained by this Court in S.A.Venkataraman.v.Union of India,1954 SCR 1150: (AIR 1954 SC 375)(Y), has been to impose a fetter on the right of the Government to inflict the several punishments therein mentioned. Thus under Art.311(1) the punishments of dismissal, or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art. 311(2) of the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government Servant without giving him a reasonable opportunity to defend himself. The principle embodied in Art.310(1) that the Government servants hold office during the pleasure of the President or the Governor, as the case may be, is qualified by the provisions of Art.311 which give protection to the Government servants. The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government Servant must be given a reasonable https://hcservices.ecourts.gov.in/hcservices/ opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Art.311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided'. 10 . He also cites the decision of the Hon'ble Supreme Court in S.Sukhbans Singh-v- The State of Punjab(AIR 1962 Supreme Court 1711 where by and whereunder among other things it is observed as follows" "A probationer officiating in a higher post who continues to be such without being reverted after the expiry of the period of probation has no legal right to the higher post in which he is officiating but merely becomes eligible for being absorbed in the higher post as a permanent member. He still continues to be a probationer and can be reverted to his original post under the service rules even without assigning any reason, if his work is found to be unsatisfactory. The provisions of Art.311(2) do not apply to such a situation. But if he is reverted to his original post by way of punishment for misconduct the provisions of Art.311(2) become applicable and the reversion made without complying with provisions of Art.311(2) would be illegal. Held on the facts and circumstances of the case that the action of the Government in reverting the appellant to his original post of Tahsildar was malafide and the reversion was by way of punishment for misconduct without complying with the provisions of Art.311(2). The reversion of the appellant was, therefore, illegal'. 11. Continuing further,the learned counsel for the petitioner places reliance on the order passed by this Court dated 24.11.2008 in W.P.No.28196 of 2005(Little Flower Primary School rep by the Secretary, Chinnalapatti, Dindigul District-v- The Joint Director of Elementary Education, College Road, Chennai-600 006 and others) (pertaining to the non minority school) wherein at paragrahs 11 and 12 , it is observed thus: " The conditions of service of a private school teacher is governed by an agreement executed by the management and teachers viz.. Form VII-A, https://hcservices.ecourts.gov.in/hcservices/ which was framed under Rule 15 of the Tamil Nadu Recognised Private Schools(Regulation) Act ,1974. The Headmaster of a private school is also a teaching staff in that private school. In clause 6 of the said statutory agreement, it is stated that the teacher and the School Committee shall confirm to all the provisions of the Tamil Nadu Recognised Private Schools(Regulation) Act and Rules. Clause 7 states that the School Committee shall not dismiss, remove or reduce in rank or terminate the service of the said teacher, without informing him or her in writing on the ground on which they intend to take action and adopt the following procedures before taking any final decision before the punishment to be imposed. "(a) The memorandum of charge shall be communicated to him/her in writing giving him/her reasonable time to send his/her explanation to the School Committee (b) After considering his/her explanation the School Committee shall communicate to him/her findings and if so desired by the said teacher conduct a personal hearing or enquiry, wherein he/she shall be given the opportunity to examine or cross-examine any or all the witnesses and also produce witnesses. © After the conduct of the personal hearing or enquiry by the School Committee the report of such personal hearing or enquiry shall be furnished to the teacher and a notice shall be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to defend himself/herself against the proposed punishment. (d) After the receipt of the statement of defence from him/her an taking into consideration the School Committee shall inform him/her in writing about is final decision.' As per section 22 of the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973, if any teacher or other person employed in any private school is to be dismissed, removed or reduced in rank, prior approval of the competent authority shall be obtained. Section 22 reads as follows: " 22.Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools:-(1) subject to any rule that may be made in this behalf, no teacher or other https://hcservices.ecourts.gov.in/hcservices/ person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. (2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private school is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment.' Thus, it is evident from the statutory provisions that the petitioner management is bound to follow the above said procedures, namely, frame charge memo' give reasonable time to submit reply; if the reply is not satisfactory, conduct enquiry; draw a report of the enquiry; serve a copy of the report to the delinquent;serve the final show cause notice with regard to the proposed penalty; and after the receipt of reply, consider the same before decision is taken. The said decision can be implemented only after getting the prior approval of the competent authority, viz., the second respondent under Section 22(1) of the Act. 12. It is clear from the records filed in this writ petition, though charges were framed against the 4th respondent, no time to submit explanation was given, no enquiry was conducted and admittedly no enquiry report was drawn holding that the charges levelled against the 4th respondent were proved. In the absence of any enquiry report to prove the charges against the 4th respondent, the petitioner management has chosen to terminate and applied before the second respondent seeking prior approval. The said approval request was rejected by the second respondent by order dated 25.5.2005 by specifically stating that the terms and conditions governing the petitioner and the 4th respondent has not been followed as per Form VII-A. No enquiry was conducted. The second respondent is entitled to find out the reqularity of the proceeding initiated and if the same is not satisfied, approval can be rejected. The said decision taken by the second respondent was confirmed by the https://hcservices.ecourts.gov.in/hcservices/ first respondent in appeal. Section 22(2) clearly states that the competent authority should be satisfied about the decision on adequate and reasonable grounds not only with regard to the procedures followed, but also can look into the gravity of the charge and whether the proposed punishment is commensurate with such proved charges and it is an inbuilt mechanism provided under the statutory Rule. Therefore, the petitioner management is not justified in its contention that the second respondent is not justified in refusing prior approval.' 12. Further, the learned counsel for the petitioner cites the decision reported in A.Johnson-v- The Director of School Education, Nungambakkam and others(2004(3) M.L.J.231 at 232)( relating to minority school) wherein it is held that ' Sections 22 and 23 of the Tamil Nadu Private Schools(Regulation) Act 1973 are not applicable to the minority institutions, but the aggrieved party can approach the High Court under Art. 226 of the Constitution and further the High Court cannot re-appreciate the evidence exercising powers of Judicial review under Art.226 of the Constitution, but can interfere if the orders suffers from procedural impropriety or non application of mind.' 13. However, the learned counsel for the first respondent cites the decision of the Hon'ble Supreme Court in N.Ammad-v- Manager, Emjay High School and others(AIR 1999 Supreme Court 50 at 53 ( paragraphs 18 and 19)wherein it is observed thus: " Selection and appointment of Headmaster in a school(or Principal of a college) are of prime importance in administration of that educational institution. Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This prestine precept remains unchanged despite many changes taking place in the structural patterns of education over the years. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of https://hcservices.ecourts.gov.in/hcservices/ the Kerala High Court in Aldo Maria Patroni v.E.C.Kesavan,1964( Ker.LT.791:(AIR 1965 Kerala 75). Chief Justice M.S.Menon has, in a style which is inimitable, stated thus: " The post of the headmaster is of pivotal importance in the file of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon- except to the extent of prescribing the requisite qualifications and experience-cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right' a teasing illusion, a promise of unreality'. 14. He invites the attention of this court to the decision reported in Bieccolawrie Limited and another-v- State of West Bengal 2009(10 ) Supreme Court Cases, 32 at page 33)wherein it is observed that' it is evident from charge sheet that charges were precise and specific in nature along with relevant provision of Standing Order laying down consequences there of and there is no patent or latent vagueness involved nor unintelligible and there is a clear indication that respondent was fully aware of the charges and even their specifications and probable witnesses for his misconduct' and further that the charges were specific and simple and not difficult to comprehend'. 15. He brings to the notice of this Court to the decision in Dr.C.Chendroyaperumal-v- National Institute of Port Management rep by its Director(the Principal Officer) Uthandi East Coast Road, Madras- 600 096 and others(2006 Writ L.R.820)wherein it is held as follows: " Principles of Natural Justice themselves have traversed a long way from the stage at which they were treated as a 'Tharaka Manthra" or panacea for all diseases, to the present stage and Courts have started looking at the credentials of the person using them as a shield or s word and accepting the fact that they are not indispensable and Principle of Natural Justice is for thoroughbred horses and not wild horses.' 16. That apart, the learned counsel for the first respondent cites the decision of Canara Bank-v- V.K.Awasthy(2005(6) Supreme Court Cases, 321 at page 322)wherein it is among other things held https://hcservices.ecourts.gov.in/hcservices/ below: "Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of