IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.07.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No. 4310 of 2003 R.Vimala ... Petitioner Vs. 1.The Director of School Education, Primary Schools, College Road, Chennai – 6 2.The Chief Educational Officer, Nagercoil, Kanyakumari District. 3.The District Elementary Educational Officer, Nagercoil, Kanyakumari District. 4.The Assistant Educational Officer, Thiruvattar, Kanyakumari District. 5.The Correspondent, St. Peter's R.C.Primary School, Chekkal, Thiraparappu Post, Kanyakumari District. ...Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified to direct the respondents to approve the petitioner's appointment as a Secondary Grade Teacher in the 5th respondent's school from the date of her appointment. For Petitioner : Mrs.Aparna Nandakumar 1. For Respondents : Mr.M.Sneha, G.A. for RR1 to 4 Mr.Isaac Mohanlal for R-5 ORDER The prayer in the writ petition is for issuance of a writ of Mandamus directing the respondents to approve the petitioner's https://hcservices.ecourts.gov.in/hcservices/ appointment as Secondary Grade Teacher in the 5th respondent school from the date of her appointment. 2. The facts leading to the filing of the writ petition could be briefly stated as follows:- The petitioner is a Tamil Pandit and was appointed as Secondary Grade Teacher in the fifth respondent school on 02.06.1986. The fifth respondent school is an aided minority institution. The fifth respondent school filed two writ petitions before this Court in W.P.No.415/1989 and W.P.No.436/1989. The relief sought for in the W.P.No.415/1989 was to grant aid by way of allotment of teaching and non-teaching staff to the school from the year 1979 onwards and in W.P.No.436/1989, the prayer was for grant of aid by way of allotting teaching staff from the year of recognition namely 1986. By virtue of interim direction granted by this Court in W.P.No.436/1989, the petitioner received salary from the Government grant for the period from 02.06.1986 to 31.10.1987. Thereafter, the petitioner continued to work as Secondary Grade Teacher without salary from 01.11.1987 to 01.06.1997. The Government in G.O.Ms.No.13, School Educational Department, dated 29.11.1998, sanctioned Secondary Grade post with effect from 01.06.1987 in the scale of 1200-30-1560-40-2040 and the fifth respondent school was sanctioned four posts. This decision was based upon the earlier government order in G.O.Ms.No.317, School Education Department dated 25.07.1997. The petitioner was accommodated in one such post by the management by its school committee resolution dated 22.03.1998 and the proposal was sent to the department seeking approval of the petitioner's appointment. However, the department declined to approve the petitioner's appointment stating that the petitioner is not eligible as per the G.O.Ms.No.559, Education Department dated 11.07.1995. Against such rejection, the petitioner filed W.P.No.12259/2000 and the said writ petition was tagged along with W.A.Nos.991 to 998/1998. The Hon'ble Division Bench by order dated 29.06.2001, directed the State Government to take steps to provide relief to such teachers, who were inducted prior to the dismissal of the writ petition on 19.05.1998. Subsequently, the Government by G.O.Ms.No.155, School Education Department dated 03.10.2002, issued certain directions for approval of appointments of Secondary Grade Teachers in private aided minority and non-minority institutions, appointed between 11.07.1995 and 19.05.1998 by directing them to undergo training in Child Psychology. The petitioner requested that she may also be sent for Child Psychology training by submitting a representation to the fourth respondent on 30.01.2003. Since, no orders were passed on the representation, the petitioner filed W.P.No.4310/2002 seeking approval of her appointment. Pending disposal of the writ petition, the petitioner also sought for interim direction to send the petitioner for Child Psychology Training for a period of one month. This court by order dated 30.02.2003 granted interim direction as prayed for, enclosing such order the petitioner submitted a https://hcservices.ecourts.gov.in/hcservices/ representation on 17.02.2003 followed by a telegram on 18.02.2003. However, she was not sent for training and petitioner also filed contempt petition for disobeying the interim direction issued. 3. The two writ petitions filed by the fifth respondent school in W.P.No.415/1989 and W.P.No.436/1989 were tagged along with batch of cases and heard by the Hon'ble Division Bench and by order dated 24.03.2003, the Hon'ble Division Bench allowed the writ petitions and directed the applications given by the respective managements, regarding grand-in-aid shall be considered by the State Government by following the directions given in paragraph 29 of the Judgment. In the above stated factual background, the petitioner's appointment is yet to be approved and therefore, the petitioner has prayed for appropriate direction. 4. The second respondent has filed a counter affidavit contending that the petitioner's appointment was approved for the period from 02.06.1986 to 31.10.1987 and the salary was paid to her in compliance of the interim order granted by this Court in W.P.M.P.No.828/1989 in W.P.No.436/1989 and since the interim order was only for a limited period, she was not paid salary from 01.11.1987 and she is working continuously from 01.11.1987 without salary. It is further stated that the petitioner was appointed in a sanctioned post with effect from 09.06.1987 and her appointment could not be approved as she was a Tamil Pandit. It is further submitted that out of the four additional posts sanctioned, one post became surplus as per G.O.Ms.No.525 dated 29.12.1997 and the staff fixation for 2001-02 was done and it was fixed as three teachers, as a result, the petitioner post was surplus, however, she continued to work. It is further submitted that also according to G.O.Ms.No.559 dated 11.07.1995 and subsequently by G.O.Ms.No.155, dated 03.10.2002, it is ordered that the appointment of B.T. Assistant or Tamil Pandit candidates as Secondary Grade Teachers may be sent for Child Psychology Training and after training that their appointment may be approved. Therefore, it is contended that since the petitioner was functioning in an unsanctioned post, she was not sent for Child Psychology Training. The counter affidavit having been filed in 2004 the subsequent event/Judgments have not been adverted to. 5. I have considered the submissions on either side and perused the materials available on record as well as Judgment rendered by the Hon'ble Division Bench as referred supra. 6. The facts relating to the petitioner's appointment and continuance in the fifth respondent school are all matters of record. The reason assigned by the department for not approving the petitioner's appointment is on the ground that she is a Tamil Pandit and she has been appointed in a Secondary Grade vacancy. The Government order in G.O.Ms.No.559, dated 11.07.1995 prohibited appointment of B.Ed., qualified candidates and the same was https://hcservices.ecourts.gov.in/hcservices/ challenged in a batch of cases and ultimately, the Hon'ble Division Bench of this Court in Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School V. The State of Tamil Nadu reported in 2002 WLR 173 held that the appointments made up to 19.05.1998 were permitted to be approved with a direction to the Government to work out the modalities. Thereafter, the Government issued G.O.Ms.No.155, dated 03.10.2002 and directed to provide One Month Child Psychology Training to graduate teachers with B.Ed qualification appointed as Secondary Grade Teachers from 11.07.1995 to 19.05.1998. 7. Though, the petitioner also obtained an interim direction from this Court in W.P.M.P.No.5401/2003 in W.P.No.4310/2003 dated 13.02.2003, she was not sent for training. Admittedly, four posts of Secondary Grade Teacher were sanctioned to the fifth respondent school by G.O.Ms.No.13, dated 29.11.1998 and the petitioner was appointed in one of the four posts on 01.06.1997. In the counter affidavit, it is stated that subsequently, based on a staff fixation done during 2001-02, it was found that the post held by the petitioner was surplus. However, in the counter affidavit, it has been stated that the petitioner had been continuously working from 01.06.1986 and in fact her salary was also paid for the period from 01.06.1986 to 31.10.1987 and thereafter, she has been working without salary from 01.11.1987. The question whether, the petitioner can be penalized for not having been sent for Child Psychology Training came for consideration before this Court in M.Sundersingh Vs. Government of Tamil Nadu and others (2006) 2 M.L.J. 784 and this Court held as follows:- "11. The learned counsel for the petitioner submitted that the petitioner is continuously working without getting salary. Petitioner is to be paid salary from 02.06.2003 as it has been given to other similarly placed Teachers. As and when Child Psychology Training is given through D.I.E.T., the petitioner shall undergo the said training. The service of the petitioner from 07.01.1998 to 02.06.2003 shall be counted for pension purposes only as held by the Division Bench decision reported in 2004 (2) LW 591 (State of Tamil Nadu & Others V. Pallivasal Primary School). Denial of sending the petitioner for training is due to the fault of the respondents and therefore the same cannot be put against the petitioner for delaying payment of his salary. 12. The learned counsel for the petitioner submitted that as and when petitioner is sent for training through D.I.E.T., he is willing to undergo the same and the said undertaking is recorded. The prayer for quashing Clause 3 (IV) in G.O.Ms.NO.155 dated 3.10.2002 has become infructuous in view of the issuance of subsequent G.O.Ms.No.34 on 17.03.2003. The consequential order of the 4th respondent https://hcservices.ecourts.gov.in/hcservices/ dated 21.09.2002 is quashed with a direction to the respondents to approve the appointment of the petitioner on 02.06.2003 and count petitioner's service for pension from 07.01.1998." 8. Further as noted above, when the post was sanctioned, there was sufficient student strength in the school and even according to the department, when the staff fixation was done, after four years in 2002 it is stated that one post has become surplus. The petitioner having been appointed in the fourth post and the school having had sufficient strength on the relevant date, the reason assigned by the department for refusal to approve the petitioner's appointment stating that 2002, the number of post got reduced cannot be countenanced and deserves to be rejected. That apart the Hon'ble Division Bench in G.Sahadevan Nair V. Government of Tamil Nadu reported in (2008) 4 MLJ 289, while disposing of batch of cases including the two writ petitions filed by the fifth respondent management in W.P.Nos.415 & 436/1998 issued the following directions:- 29. For the aforesaid reasons, we allow the various writ petitions by giving the following directions:- (i)The State of Tamil Nadu and the other authorities concerned shall consider the application of each of the Institution for grant-in-aid within a period of 16 weeks without being influenced by the fact that such institutions had been established without obtaining any prior permission and also by the fact that such institutions had given letter in writing indicating that after obtaining recognition they will not claim any grant- in-aid. However, while considering such application, the relevant facts such as the existence of necessary infrastructure, teacher-student ratio and the eligibility of the concerned teacher to hold the post should be considered. (iii)If it is found that any particular institution is entitled to receive any aid, decision should be taken with regard to eligibility within a period of four months and should be communicated to the concerned institution. (iv)If any institution is found eligible to receive such aid, necessary payment shall be made within a further period of four months from the date of such sanction. (v)The continued right of any institution to receive any aid is to be considered keeping in view the relevant G.O., applicable from time to time. (vi)Similarly, in respect of minority institutions, which wee receiving aid in respect of some of the posts and were seeking for approval and payment of aid for any additional https://hcservices.ecourts.gov.in/hcservices/ post, such question is required to be considered within a period of four months by keeping in view the teacher- pupil ratio applicable during any particular period. (vii)If, on the other hand, any school or any post is found ineligible for sanction of grant, such decision should be communicated to the concerned institution by giving brief reasons within a period of three weeks from the date of order of refusal." 9. In an identical circumstances a writ petition came for consideration before the Madurai Bench of this Court in W.P.No.3206/2007 and this Court by order dated 13.12.2007, considering the facts as well as the law laid down allowed the writ petition by following above referred decisions and directed the approval of the appointment of the petitioner therein making it clear if the post in which, she was found working is found surplus, it is open to the department to deploy, the petitioner therein to a needy school in accordance with G.O.Ms.No.525 dated 29.12.1997 and the arrears of salary was directed to be disbursed. Against the said order, the Department filed W.A.(MD). No.617/2008 before the Hon'ble Division Bench of the Madurai Bench and the Hon'ble Division Bench by Judgment dated 25.09.2008, dismissed the writ appeal and held that the issue raised is already covered by the Judgments reported in The State of Tamilnadu and Ors Vs. Pallivasal Primary School 2004 (2) LW 591 and M.Sundersingh Vs. Government of Tamil Nadu and others (2006) 2 M.L.J. 784. 10. Therefore, for all the above reasons, the petitioner is entitled to succeed and accordingly, the writ petition is allowed as prayed for and the respondents are directed to approve the petitioner's appointment and pay the arrears of salary within a period of eight weeks from the date of receipt a copy of this order. No costs. pbn Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Director of School Education, Primary Schools, College Road, Chennai – 6 2.The Chief Educational Officer, Nagercoil, Kanyakumari District. https://hcservices.ecourts.gov.in/hcservices/ 3.The District Elementary Educational Officer, Nagercoil, Kanyakumari District. 4.The Assistant Educational Officer, Thiruvattar, Kanyakumari District. + 1 cc to M/s. Aparna Nandakumar, Advocate SR.49405 + 1 cc to Mr. Isaac Mohanlal, Advocate SR.49700 W.P.No. 4310 of 2003 VSV(CO) EU 16.07.2010. https://hcservices.ecourts.gov.in/hcservices/