IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.01.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.20739 OF 2008 and M.P.No.1 of 2008 .. V.Pauldurai .. Petitioner vs. 1.Director of Elementary Education Chennai 6. 2.District Elementary Educational Officer, Tirunelveli Tirunelveli District. 3.Correspondent R.C.Middle School Chinthamani Vasudevanallur Tirunelveli District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the 1st respondent in his proceedings Mu.Mu.No.40030/G3/2005 dated 2.4.2008 and the consequential order passed by the 2nd respondent in Mu.Mu.No.6202/Aa1/2005 dated 25.4.2008 and quash the same in so far as the date of 2.4.2008 and direct the respondents to upgrade the post of Headmaster of Elementary School as Headmaster of middle school respectively from 7.6.2005 and release the salary and consequential benefits. For petitioner : Mr.S.Mani For respondents : Mrs.Dhakshayani Reddy Govt.Advocate for R. 1 & 2 .. ORDER The writ petitioner, who has completed his B.Sc. and B.Ed. degrees, joined as B.T.Assistant in St.Joseph Boys High School, Yercaud, Salem on 1.10.1978, which is stated to have been approved. https://hcservices.ecourts.gov.in/hcservices/ When the post of Headmaster of Middle School fell vacant in the third respondent School, the petitioner got himself relieved from the school at Yercaud on 2.7.1984 and joined the third respondent school on 3.7.1984. He was also granted selection grade on 1.10.1988 and special grade on 1.10.1998. 2. When the petitioner was working in the elementary school at Chinthamani, Tirunelveli District under the control of R.C. School management, the school was upgraded as middle school on 1.6.1989 on condition that for middle school no aid would be given. The management has filed a writ petition challenging the said order and the same was allowed and the further appeals filed by the Government before the Division Bench and before the Apex Court came to be dismissed. 2(a). There were three posts of secondary grade teachers sanctioned for Standards VI to VIII in the third respondent school on 20.12.1999. During upgradation as middle school, the then Headmaster of the elementary school retired on 31.5.2005. The petitioner was posted, after upgradation of the said middle school which is under the same R.C. management on 7.6.2005. 2(b). Since, as per the Government Order, for upgradation of elementary school as middle school, one post has to be upgraded as Headmaster, the third respondent school made representation for upgradation of the post of elementary school Headmaster into middle school Headmaster and the Director of Elementary Education, by order dated 2.4.2008, granted such upgradation of the post of elementary school Headmaster as middle school Headmaster with effect from 2.4.2008. Based on that, the second respondent passed the consequential order on 25.4.2008, approving the upgradation and the salary of the middle school Headmaster was released from 2.4.2008. 2(c). The grievance of the petitioner is that from the date when he was transferred and posted in the third respondent Middle school on 7.6.2005, till the Director of Elementary Education passed the order on 2.4.2008 approving the upgradation of the post of elementary school Headmaster as middle school Headmaster, he was not paid the salary of Headmaster. It is, the order of the first respondent dated 2.4.2008 in approving the upgradation of the elementary school Headmaster as middle school Headmaster with effect from the date of said order viz., 2.4.2008 is challenged by the petitioner. 2(d). In fact, it is the case of the petitioner that after upgradation of the school as Middle School, the petitioner was posted by transfer on 7.6.2005 and therefore, from that day onwards, the upgradation of the post of Headmaster should be given effect to and not from 2.4.2008 on the ground that the third respondent is an aided school and after a prolonged legal battle, it was upgraded as middle school and the respondents ought to have granted the upgradation of Headmaster post from 7.6.2005, even if not 1.6.1997, the date on which the school was granted aid as upgraded middle school, vide G.O.Ms.No.525 School Education Department dated 29.12.1997. https://hcservices.ecourts.gov.in/hcservices/ 3. In the counter affidavit of the second respondent, it is stated that even though originally the grand was given to the third respondent school which was a primary school for Standards I to V, on upgradation as middle school, the post of primary school Headmaster was allowed to continue and the aid for Standards VI, VII and VIII was sanctioned from 1.6.1987 and the person who was allowed to continue in the primary school Headmaster post was not qualified for the middle school Headmaster and therefore, he was allowed to continue in the primary school Headmaster post till his retirement on 31.5.2005. 3(a). It is stated that as per G.O.Ms.No.5, School Education dated 9.1.2001, it is only after upgradation of the elementary school Headmaster as middle school Headmaster, the post can be filled up by a qualified person as middle school Headmaster. However, the management without following the said procedure for obtaining the upgradation of post, transferred the petitioner to the third respondent school on 7.6.2005, when there was no sanctioned post of middle school Headmaster. 3(b). It was, after the petitioner was made to join on 7.6.2005, the third respondent applied for upgradation of the post of primary school Headmaster as middle school Headmaster. It was, after verifying the entire records, the first respondent passed the order on 2.4.2008, upgrading the primary school Headmaster post as middle school Headmaster post with effect from 2.4.2008 and there is no power to retrospectively ratify the irregularity committed by the management. 3(c). The third respondent school is a fully aided school, which is bound to follow the rules and regulations and the petitioner for his personal convenience got himself appointed by resigning from the post already held by him in St.Joseph Boys High School, Yercaud and joined in the third respondent school on 7.6.2005 knowing fully well that there was no sanctioned post of middle school Headmaster in the third respondent school at that time. 3(d). It is also stated that as per G.O.Ms.No.525 School Education Department, dated 29.12.1997, there is no provision to upgrade any teacher post as Headmaster post in middle school and the third respondent management having disregarded G.O.Ms.No.5 School Education (B2) Department, dated 9.1.2001 cannot claim retrospective upgradation of the post and the first respondent has no power to waive the illegality by granting approval for the upgraded post with retrospective effect. 4. The crux of the issue involved in this case is, as to whether the third respondent school is entitled for upgradation of primary school Headmaster post as middle school Headmaster post from the date https://hcservices.ecourts.gov.in/hcservices/ on which the said school was granted aid in respect of middle school viz., 7.6.2005 or from the date when the first respondent granted approval for upgradation of the said post viz., 2.4.2008. As admitted, the upgradation was approved from 2.4.2008 and from that day onwards, it is not in dispute that the petitioner is being paid salary as Headmaster of the third respondent middle school. 5. On facts, it is clear that the third respondent school which had appointed the petitioner by way of transfer from another R.C.Management school on 7.6.2005, sent its proposal for upgradation of the post of Headmaster only after appointment of the petitioner in the third respondent school. Even though the third respondent school was upgraded as middle school on 1.6.1989, actually the grant for teaching staff for Standards VI to VIII was released by the Government as per G.O.Ms.No.350 School Education Department, dated 20.12.1999 and therefore, the third respondent school has become an approved middle school from the said date, entitled to appoint a person as middle school Headmaster. However, the fact remains that the then existing Headmaster in the third respondent school was allowed to continue till the date of his retirement in 2005 and thereafter, the petitioner by transfer was posted as Headmaster of the third respondent middle school. 6. As it is seen in the counter affidavit filed by the second respondent, the third respondent sent proposal to the first respondent for upgradation of the post of primary school Headmaster as middle school Headmaster only after appointing the petitioner in the said school and ultimately, the first respondent passed the impugned order on 2.4.2008. The G.O.Ms.No.5 School Education Department dated 9.1.2001 in its turn refers to G.O.Ms.No.525, School Education Department dated 29.12.1997. 7. The said G.O.Ms.No.525, School Education Department dated 29.12.1997 which is in the form of retention of norms for assessment of grant for teaching staff, while dealing about the middle school relating to imparting education in Standards VI to VIII, reads as follows: “The teacher-pupil ratio of 1:40 will be followed. The same norms suggested for elementary school will be followed. One of the posts will be in the grade of Middle School Headmaster”. It further says, “ When a middle school is upgraded as High School, the post of middle school Headmaster will be converted into High School Headmaster. In respect of elementary schools one post of Headmaster will be sanctioned as per existing orders”. https://hcservices.ecourts.gov.in/hcservices/ In the said G.O. it is also stated that in cases where deployment of staff in surplus is not possible, such surplus staff shall be allowed to continue in the same school till their retirement and then, the staff strength refixed as per norms. Except the above said facts, there are no other portions in the said G.O.Ms.No.525 School Education Department dated 29.12.1997 which are relevant for the purpose of the present case. It is, by applying the said Government Order, in the third respondent school which was upgraded as middle school much earlier, the then existing Headmaster of primary school was allowed to continue till his retirement i.e., in June, 2005 and only thereafter, the petitioner was appointed as Headmaster in the third respondent middle school. At the time when the staff strength was not refixed as per the norms in the third respondent middle school, as a minority school, the third respondent can make appointment only subject to the fixation of staff strength. 8. Now, if we refer to G.O.Ms.No.5 School Education (B2) Department, dated 9.1.2001, in the above said background, the said Government Order, which is applicable to aided schools, relates to the procedures to be followed in cases of upgradation of secondary grade teachers working in the middle school as primary school Headmasters and upgradation of primary school Headmaster as middle school Headmaster. In respect of primary schools upgraded as middle schools, if grant has been given for conducting classes in Std.VI to VIII, the primary school Headmaster is permitted to continue in the same salary of the primary school Headmaster to perform the functions of middle school Headmaster and if such incumbent is qualified with B.Ed. or Tamil Pandit, he is directed to be fixed the salary of middle school Headmaster at Rs.5900-9900. It also states that in such circumstances, the Director of Elementary Education is permitted to pass appropriate orders. It also states that in cases where the upgradation is made as middle school and primary school Headmaster is not having the required qualification, he can also be permitted to continue as Headmaster till his retirement and ultimately, the Director of Elementary Education while issuing upgradation orders has to send the budget estimate. The relevant portion of the Government Order is as follows: " 3/ bjhlf;fg;gs;spfs; eLepiyg;gs;spfshf cah;j;jg;gLfpd;w epiyapy; 6-8 tFg;g[fSk; epjpa[jtpa[ld; m';fPfhuk; tH';fg;gl;L bray;gl;L te;jhy; me;jg; gs;spfspy; Jtf;fg;gs;sp jiyikahrphpah; Cjpa tpfpjj;jpy; eLepiyg;gs;sp jiyikahrphpah; bghWg;ig tfpj;J bjhlh;e;J gzpg[hpe;J tUtjw;Fk;. me;j Jtf;fg; gs;spj; jiyikahrphpah;fs; gp/vl;/-jkpHhrphpah; jFjpbgw;wpUe;jhy; mth;fSf;F eLepiyg;gs;sp jiyikahrphpah; Cjpa epuf;fhd U:/5900-9900y; Cjpak; tH';ft[k; bghJthd Miz tH';fg;gLfpwJ/ ,Jnghd;w epfH;t[fs; Vw;gLk;nghJ , af;Fenu jFe;j cj;jutpl mDkjp mspf;fg;gLfpwJ/ TLjyhf khzth; tUif ,Ug;gpd; mjw;F TLjy; Mrphpah; gzpaplk; tH';Ftij eLepiyg; gs;spj; jiyikahrphpah; gzpaplkhf tH';fyhk;/ https://hcservices.ecourts.gov.in/hcservices/ 4/ ,t;thW cah;j;jg;gLk; eLepiyg;gs;spfspy; Jtf;fg;gs;spj; jiyikahrphpah;fs; gp/vl;/-jkpHhrphpah; jFjp bgwtpy;iybadpy; md;dhh; Xa;t[bgWk;tiu eLepiyg;gs;spj; jiyikahrphpah; gzpf;F bghWg;g[ tfpf;ft[k; mDkjp mspf;fg;gLfpwJ/ 5/ Vw;fdnt g[jpa cjtp bgWk; gs;spsfs; Jt';FtJ kw;Wk; epiy cah;j;JtJ Upgrade bra;tJ nghd;wtw;wpy; bjhlf;ff;fy;tp ,af;FeUf;F mjpfhuk; g';fPL mspf;fg;gl;Ls;sjhy;. nkw;fz;l bghJ Mizapd; mog;gilapy; bjhlf;ff;fy;tp ,af;Fenu xt;bthU Mz;L Muk;gj;jpYk; gs;sp epiy cah;j;Jk; Upgradation Mizfis btspapLk;nghnj. bkhj;j bryt[fisg; gw;wp KGikahd tptuj;ij muR tpjpKiwfspd;go muRf;F (epjpj;Jiw) mDg;gp brytpdj;ij Budget Estimate/Revised Estimate y; nrh;f;f eltof;if vLf;FkhW nfl;Lf;bfhs;sg;gLfpwhh;/" 9. Even in the order of the Government in G.O.Ms.No.350 School Education (B2) Department dated 20.12.1999, subsequent to the judgment of the Supreme Court in respect of third respondent school, when the Government sanctioned three middle school teachers posts for Std.VI to VIII from 1.6.1997, a direction was issued to appoint redeployed teachers from a school at Chennai-12. It further states that the Director of Elementary Education after taking note of the student-teacher ratio has to regularize the teaching posts. The relevant portion of the said G.O. is as follows: " 2.nkYk; jkpHfj;jpYs;s midj;Jg;gs;spfspYk; jw;nghJs;s murhiz vz;/525 fy;tp ehs; 29/12/97d; go Mrphpah; khztp tpfpj;jij (1:40) eilKiwg;gLj;Jk;gnghJ ,e;j gs;spapy; jw;nghJ cs;s vz;zpf;ifapidf; fzf;fpy; bfhz;L kjpg;PgL bra;J jdpna Kiwg;gLj;Jk;go bjhlf;ff;fy;tp ,af;Feh; nfl;Lf; bfhs;sg;gLfpwhh;" 10. Therefore, a combined reading of the Government Orders makes it very clear that the sanction of upgradation of the post of primary school Headmaster as middle school Headmaster is not automatic and the same has to be done by the first respondent only after considering the entire issue involved in the case on hand. Therefore, when the proposal for upgradation was sent and that was approved by the first respondent on 2.4.2008 only, it cannot be said that the petitioner should be entitled to be treated as having posted as upgraded Headmaster in the third respondent school with effect from 7.6.2005. In such view of the matter, it is not possible to accept the contention of the learned counsel for the petitioner that the petitioner is entitled for fixation of salary as middle school Headmaster with effect from 7.6.2005. Accordingly, the writ petition fails and the same is dismissed. No costs. Connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Kh To 1.The Director of Elementary Education Chennai 6. 2.The District Elementary Educational Officer, Tirunelveli Tirunelveli District. + 1 CC to the Government Pleader SR NO 907 W.P.No.20739 of 2008 RS(CO) sra 19.01.2010 https://hcservices.ecourts.gov.in/hcservices/