IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.12157 of 2003 A.Alagusundaram Memorial Middle School, rep. By its Secretary, Mr.A.K.Manoharan, No.26, B& C Traveller's Bungalow Road, Madurai 625 010. ... Petitioner vs. 1.The State of Tamil Nadu, rep. By Commissioner and Secretary to Government, Education Department, Fort St.George, Madras 600 009. 2.The Director of Elementary Education, College Road, Madras 600 006. 3.The District Elementary Educational Officer, Madurai District, Madurai 625 001. 4.The Assistant Educational Officer, Madurai North Range, Madurai 625 018. ... Respondents Prayer: Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorari to call for the records of the third respondent in Na.Ka.No.1425/A2/03 dated 28.02.2003 (the District Elementary Educational Officer, Madurai) and quash the same as illegal, arbitrary and against all principles of natural justice. For Petitioner : Mr.D.Vijay For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader O R D E R https://hcservices.ecourts.gov.in/hcservices/ The petitioner has filed this writ of Certiorari in calling for the records in Na.Ka.No.1425/A2/03 dated 28.02.2003 on the file of the third respondent/the District Elementary Educational Officer, Madurai and quash the same as illegal, arbitrary one and against the principles of natural justice. 2. The petitioner/School was originally established as 'Kalaimani Middle School' in the year 01.06.1953 by the father of late A.Alagusundaram of the Secretary's School. The third respondent in proceedings in D.Dis.No.12853/A3/94 dated 20.10.1994 approved the change of the name of the school as A.Alagasundaram Memorial Middle School. The Petitioner/School is a recognised school and provided with teaching and maintenance grant. 3. The petitioner's school is serving the economically backward people of the locality. There are classes from standard I to VIII. There are four section, each in Standards I to VI. In Standard VII, there are three sections. In Standard VIII, there are two sections. In addition to the above 29 sections as mentioned supra, there is one Tamil Pandit Post (Grade-I) and one prevocational Instructor post. The petitioner's school was upgraded as Middle School in the year 1957. During that time, there were 31 sanctioned post for the school. In the March 1963, the State fixed the teaching Posts for each school throughout Tamil Nadu. The teaching posts so sanctioned were permanent posts sanctioned to each school. The Petitioner/School got 31 sanctioned teaching posts in March 1963. The Government granted to all the 31 teachers working till 1990. 4. The Authorities verified the students strength by taking into consideration the average attendance of the students in the month of August as per G.O.Ms.No.250, Education dated 29.02.1964 and G.O.Ms.No.1820 dated 21.11.1984. Also the Government issued G.O.Ms.No.25 dated 29.12.1997 and G.O.Ms.No.13, Education dated 29.12.1997. The said Government Orders deal with the fixation of the teachers admissible for each school for a particular academic year. Pursuant to G.O.Ms.No.1820, the teachers strength in a particular school has to be fixed on the basis of the average attendance during the month of August and that the teacher strength so fixed for payment of teaching grant till the end of the next July. Now the Authorities have fixed the students strength till 2000 and the petitioner's school has been given 27 sanctioned post and the school has sufficient students strength for these posts. 5. When the proceedings to approve the 12 teachers appointed till 1991 is pending on the file of the third respondent/District Elementary Educational Officer, Madurai, he passed orders in his proceedings in Na.Ka.No.7784 Elementary Education dated 15.06.1995 communicated the proceedings of the Director of Elementary Education in Na.Ka.No.7784/Elementary Education dated 25.09.1996 which mentions that the vacant posts were surrendered and the posts were withdrawn https://hcservices.ecourts.gov.in/hcservices/ and therefore the said posts should not be filled up on any account. The proceedings of the Director of Elementary Education and the third respondent are illegal, arbitrary and against the principles of natural justice. The petitioner/school had not surrendered any of the posts sanctioned to it. All the posts in the school were duly filled up and the teachers were working and the proceedings to approve the appointment of the teachers were pending on the file of the third respondent. 6. Earlier, the petitioner filed W.P.No.14449 of 1995 before this Court challenging the said proceedings and this Court while passing orders on 01.08.2001 has allowed the writ petition by inter alia observed that ' it is open to the respondents to issue proper show cause notice to the petitioner and to pass any orders thereon only after hearing the petitioner. 7. According to the learned counsel for the petitioner, the third respondent and fourth respondent have sanctioned 27 teachers post and the fourth respondent visited the school and made notes and satisfied with the functioning of the school and in short, the third respondent has passed the impugned order in an illegal manner like the one committed earlier and moreover the third respondent in proceedings in Na.Ka.No.1425/A2/03 dated 28.02.2003 based on the proceedings of the second respondent in Na.Ka.No.3176 Elementary Education J1/95 dated 17.09.2002 informed the Petitioner/School that out of 28 sanctioned posts, 15 posts were surrendered and as a matter of fact, the third respondent has no power to withdraw the sanction post and moreover the said proceedings contained false statements and that apart, the petitioner had not surrendered any posts and the posts are filled up and the teachers are working and also that proceedings pertaining to the approval of the teachers is pending on the file of the third respondent and in these circumstances, without issuing any notice to the Petitioner/School, the third respondent has issued the impugned order without jurisdiction and the same is an illegal one and against the principles of natural justice and therefore prays for allowing the writ petition in the interest of justice. 8. Per contra, the learned Additional Government Pleader appearing for the respondents submits that the petitioner/School is a recognised non minority Middle School with Standard I to VIII and receiving teaching Grant on the basis of teaching posts sanctioned according to students attendance in every academic year as per prevailing Government Orders and according to the students strength available the following Teaching staff is permitted to the Petitioner/School in the following manner:- Middle School HM : 1 Tamil Pandit : 1 Secondary Grade Teacher : 27 https://hcservices.ecourts.gov.in/hcservices/ Pre Vocational Teacher : 1 ---------- Total 30 ---------- and the Government issued norms for staff fixation as per G.O.Ms.No.340, Education Department dated 01.04.1992 but these norms did not satisfy the aided management as they were considered stringent and the Government constituted a high official committee in the year 1995 and on the basis of the suggestion of the high power official norms committee, the Government issued revised norms in G.O.Ms.No.525, School Education (D1) Department dated 29.12.1997 and as per the revised norms, the teaching staff of the school are to be assessed by the concerned District Elementary Educational Officer based on the average attendance in the school as on the first day of August every year at the ratio of 1:40 and many Writ Petitions and Writ Appeals filed by the Management challenged this G.O. before this Court were set aside by the Division Bench judgment of this Court dated 09.11.2000 in W.A.No.1768 of 1998 and the petitioner/School has been sanctioned with including Tamil Pandit and Pre Vocation Teacher post and the students strength in the petitioner school came down in the following years and in the academic year 2001-2002, as per norms mentioned in G.O.Ms.No.525 dated 29.12.1997, the third respondent has fixed the following teachers strength according to the students average strength as mentioned below:- Details of Students Strength in the year 2001-2002 Class Average attendance of Students No. of eligibility of teachers 1 73 2 2 62 2 3 56 1 4 55 1 5 61 2 6 49 1 7 61 2 8 81 2 498 13 and the details of Surplus posts in 2001-2002 and set out hereunder: Details of Surplus post in 2001-2002 https://hcservices.ecourts.gov.in/hcservices/ Name of Posts No. of posts already sanctioned No. of Posts eligible as per G.O.525 No. of Surplus Post 1.Middle School H.M. 1 1 -- 2.Tamil Pandit 1 1 -- 3.Secondary grade Teachers 27 12 15 4.Pre Vocational Teacher 1 1 -- Total 30 15 15 and the petitioner/School is quite aware of the revised norms stipulated by the Government in G.O.Ms.No.525, Education (D1) Department dated 29.1.1997 and accordingly the Director of Elementary Education, Chennai issued orders vide Lr.No.Na.Ka.No.3176/J1/95 dated 17.09.200 which was communicated in Lr.No.Na.Ka.No.1425/B2/03 dated 28.02.2003 of the third respondent to the effect that 15 vacant posts found surplus according to the students strength in the petitioner school was surrendered to Government which is well within the law and according to rules and the petitioner/School instead of providing any solid proof that it had enough strength to retain the 28 posts (1 HM + 27 Secondary Grade Teachers Posts), simply blamed the official concerned that their action to withdraw the surplus post is an illegal one and in the year 2003-2004, the School had pupils strength eligible for only six Teaching posts as mentioned below:- Class Average attendance of Students Eligibility of teachers per 1 10 2 10 3 12 4 11 5 12 6 9 7 8 8 17 89 Minimum eligibility for 2 teachers for class 1-5 and 2 teachers for classes 6-8 i.e., total 4 teachers including Middle School Head master excluding Tamil Pandit and Vocational Teacher. and further the details of Surplus post in 2003-2004 had been set out hereunder:- Details of Surplus post in 003-2004 https://hcservices.ecourts.gov.in/hcservices/ Name of Posts No. of posts sanctioned in 2001-02 No. of Posts eligible for 003-04 No. of Surplus Post With teacher Vacant post Total 1.Middle School H.M. 1 1 -- -- -- 2.Tamil Pandit 1 1 -- -- -- 3.Secondary grade Teacher 12 3 4 5 9 4.Pre Vocational Teacher 1 1 -- -- -- Total 15 6 4 5 9 and as per refixation of teaching staff in the academic year 2003-04, 04 secondary grade teacher posts were deployed with other needy schools within Madurai District and 05 Secondary Grade vacant posts were surrendered to the Director of Elementary Education and the petitioner filed W.P.No.15675 of 2004 before this Court questioning about the deployment order and obtained stay orders and subsequently the said writ petition was withdrawn and the petitioner relieved all the four teachers from the school and and agreed to the 5 surplus vacant post in the year 2003-04 and this would prove that the petitioner/school is not having the requisite strength of students even to retain the 15 posts sanctioned in 2001-2002 and as such the writ petition is not maintainable both on faculative aspects as well as on legal plane and prays for dismissal of the writ petition. 9. Expatiating his submissions, the learned counsel for the petitioner submits that the impugned order dated 28.0.2003 passed by the third respondent is a final order and it cannot be construed to be a case of show cause notice issued to the petitioner inasmuch as the said order refers to surrender of posts of the Secondary Grade Teachers and according to the case of the petitioner, no posts were surrendered and in short, the impugned order has been passed by the third respondent without issuance of the show cause notice to the petitioner and thereby there has been negation of the principles of natural justice and therefore the impugned order is vitiated on that account. At this stage, the learned counsel for the petitioner brings it to the notice of this Court to the order passed by this Court dated 01.08.2001 in W.P.No.14449 of 1995 wherein the petitioner School challenges the surrender of posts as alleged therein and in that, this Court has inter alia observed that 'it is open to the respondents to issue proper show cause notice to the petitioner and to pass any orders thereon only after hearing the petitioner' and https://hcservices.ecourts.gov.in/hcservices/ resultantly allowed the said writ petition and in sum and substance, the said orders passed by this Court in the writ petition will squarely apply to the facts and circumstances of the present case on all force. 10. Advancing his arguments, the learned counsel for the petitioner submits that G.O.Ms.No.1820, Education Department dated 21.11.1984 speaks off assessment of teaching grant based on teacher at forth fixed as per average attendance in August and continues till the end of the next July and as per the tenure of the G.O., the Government has directed with effect from the academic year 1984 the teacher strength (applying the approved-Teacher-Public) of Aided Elementary i.e., Primary and Middle Schools i.e. On the basis of average attendance during the month of August that the teacher strength so fixed should be followed (without any refixation in later months for example the quantum of teacher grant assessed on the basis of the Teacher strength fixed as the average attendance in August 1985 inclusive) etc., and also as per G.O.Ms.No.525, School Education (D1) Department dated 29.12.1997, the Government has revised the norms for assessment of grant for teaching posts and issued orders in respect of Middle School (Standard VI to VIII) that the teacher-pupil ratio of 1:40 will have to be followed and the same norms suggested will be followed and one of the posts will be in the grade of Middle School Head Master and when a Middle School is upgraded as High School, the post of Middle School Head Master will be converted into High School and in respect of elementary school, one post of Head Master will be sanctioned as per existing orders and as far as the petitioner is concerned, they have not surrendered any posts of Secondary Grade Teachers and in any event, the impugned order passed by the third respondent dated 28.02.2003 is not illegal inasmuch as the said order has been passed without adhering to the principles of natural justice i.e., of providing opportunity of hearing to the petitioner. 11. Countering the submissions of the learned counsel for the petitioner, the learned Additional Government Pleader contends that earlier in the year 2001-2002, the petitioner School strength was of 498 students including classes VI to VIII were :- BT HM BT Asst Tamil Pandit Sec Gr PVI Total 01 nil 01 27 01 30 and further in the year 2001-2002, the teacher and pupil ratio was fixed in terms of G.O.Ms.No.525 dated 29.12.1997 and it was found that there were excess Secondary Grade Teacher posts without teachers and the same was not in accordance with the Government order and therefore the respondents had issued the order for surrendering the vacant posts to the Director of Elementary Education and added further, the petitioner/School is currently including the classes VI to VIII and allotted the teachers post for the year 2009-2010 is as follows:- https://hcservices.ecourts.gov.in/hcservices/ BT HM BT Asst Tamil Pandit Sec Gr PVI Total 01 01 01 03 01 07 and currently also the teacher-pupil ratio under the petitioner School is not in consonance with the G.O.Ms.No.525 dated 29.12.1997 and moreover as per the visit done by the Assistant Elementary Educational Officer, Madurai (North) it is found that the petitioner school is having false roll of around 100 students which involves incurring of heavy recurring financial expenditure to the exchequer by way of obtaining free books, free uniforms, noon meal and free note books to the students besides salary for the excess teachers and the action taken by this respondent is strictly in accordance with law and Government Order. 12. It is to be borne in mind that the term Natural Justice refers to justice according to one's conscience. In modern parlance, it means fairness or reasonableness. The concept of natural justice is also an integral part of Article 14 of the Constitution of India. The principles of natural justice are not the edicts of a statute but they are not codified rules and in this regard, no straight jacket cast iron formula can be fixed as a criteria to determine what is natural justice? which depends on the given situation of a particular case. 13. It is also brought to the notice of this Court on behalf of the respondents that as against the impugned order dated 28.02.003 passed by the third respondent, the petitioner has got a right to file its objections or reply in the manner known to law and it is for the first respondent/State Government to pass appropriate orders and therefore even without submission of any objection or reply to the impugned order, the petitioner has approached this Court which is a premature and otiose one. However, this contention is rebutted by the learned counsel for the petitioner stating that in the impugned order, the factum of surrender of the Secondary Grade posts were mentioned and therefore it can only be construed as a final order and not a show cause notice. On going through the impugned order dated 28.02.2003 passed by the third respondent, even though the said order in Tamil referred to the factum of surrender of the Secondary Grade Posts it also indicates that an acknowledgement has to be given to the receipt of the said order. But this Court is of the considered view that notwithstanding the same the petitioner has a bonafide, legal and legitimate right to put forward its objection/reply to the impugned order explaining the facts and circumstances in a qualitative and quantitative manner and the first respondent is empowered to pass appropriate orders after providing reasonable opportunity of hearing to the petitioner in person (if it so desires) or otherwise and when that being the position, then it is too premature for the petitioner/School to approach this Court by means of present writ petition and in that view of the matter, this Court disposes of the writ petition with a direction that it is open to the petitioner to put forward its objection/reply to the impugned https://hcservices.ecourts.gov.in/hcservices/ notice dated 28.02.2003 and it is for the third respondent to apply its mind in a dispassionate manner on the basis of the overall facts and circumstances of the case after providing due opportunity to the parties, in the manner known to law and it is also made clear that the petitioner/School shall provide its reply/objection to the respondents within a period of two weeks from the date of receipt of a copy of this order and in the event of objection/reply being filed by the petitioner, the first respondent is directed to pass appropriate orders within a period of six weeks thereafter. 14. With the above directions, the writ petition is disposed of without costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vri To 1.The Commissioner and Secretary to Government, The State of Tamil Nadu Education Department, Fort St.George, Madras 600 009. 2.The Director of Elementary Education, College Road, Madras 600 006. 3.The District Elementary Educational Officer, Madurai District, Madurai 625 001. 4.The Assistant Educational Officer, Madurai North Range, Madurai 625 018. +1 C.C. To Mr.S.Dharmakkan, Advocate – SR No.14181 +1 C.C. To Government Pleader, High Court, Madras – SR No.13516 W.P.No.12157 of 2003 26.02.2010 https://hcservices.ecourts.gov.in/hcservices/