IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09 .04.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.32011 & 32012/2007 M.P.Nos.1&2/ 2007 1.The Tamil Evangelical Luthern Church, Kabis, Higher Secondary School, Pandur, represented by its Correspondent Rev.J.Paul Sathia Moorthy Pandur, Kadambathur (via) Thiruvallur District, Tamil Nadu – 631 203 ... Ist Petitioner in both W.Ps. 2.T.G.Salomie, B.T. Asst. (Junior Grade) TELC Kabis Higher Secondary School Pandur, Thiruvallur District ... 2nd Petitioner in W.P.No.32011/2007 -vs- 1.The District Educational Officer, Thiruvallur, Thiruvallur District. 2.The Chief Educational officer Thiruvallur, Thiruvallur District. 3.The Director of School Education, Higher Secondary Education, College Road, Chennai – 600 006. 4.J.Joshua Selvakumar 5.R.Jayapal 6.Rev.I.Thangaraj Former Correspondent TELC Kabis Higher Sec. School, Pandur, Kadambathur (Via) Thiruvallur District. ... Respondents in all W.Ps R6 impleaded as per order dated 05.03.2008 in M.P.Nos.1,1,1/2008 in W.P.Nos.32011, 32012 by PSDJ https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.32011/2007: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for all records relating to the order of the first respondent made in ATM.No.3475/A4/2007 dated 23.07.2007 and quash the same and consequently direct the first respondent to approve the appointment of first petitioner appointing Mrs.T.Salomie, the second petitioner herein as B.T.Assistant(Junior Grade) from the date of appointment i.e., 09.02.2007 with all benefits, privileges and emoluments in accordance with law. Prayer in W.P.No.32012/2007: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for all records relating to the order of the first respondent made in Na.Ka.No.1059/A4/2007 dated 30.07.2007 and quash the same, award costs. For Petitioners :Mr.M.Joseph Thatheus Jerome in all W.Ps. For Respondents :Mr.P.Wilson, Addl. Advocate General in all W.Ps. assisted by Mr.A.C.Mani Bharathi for RR1-3 Mr.G.Jeremiah for R4 COMMON O R D E R By consent the main writ petitions are taken up for final disposal. The petitioners in W.P.No.32011/2007, are the Tamil Evangelical Luthern Church, Kabis, Higher Secondary School, and one Tmt.T.G.Salomie, a B.T. Assistant (Junior Grade). The writ petition has been filed to quash a return memo dated 23.07.2007, issued by the first respondent, by which the proposal sent by the first petitioner, Management for approval of the appointment of the second petitioner as B.T. Assistant was returned for non-compliance of G.O.Ms.No.100, School Education Department dated 27.06.2003. 2. W.P.No.32012/2007, has been filed by the Tamil Evangelical Luthern Church, Kabis Higher Secondary School for issuance of a writ of certiorari to quash the proceedings of the first respondent dated 30.07.2007, by which the fourth respondent, Mr.J.Joshua Selvakumar was appointed temporarily with effect from 30.07.2007 in the scale of pay Rs.5500-175-900, subject to certain conditions. 3. It is submitted that the 1st petitioner institution is a recognized and aided minority educational institution and that the Tamil Evangelical Luthern Church has several educational institutions under its management. According to the first petitioner, 10 teachers were appointed on a honorarium for one academic year from 23.06.2006 to March 2007, as appointees from the Parents Teachers Association and the services of such teachers were utilized to handle classes during emergency requirement. The first respondent is one such https://hcservices.ecourts.gov.in/hcservices/ appointee and according to the petitioner, management, his tenure ended in March 2007. That vacancies in the post of B.T. Assistant (Junior Grade), arose in the petitioner institution and one Tmt. Eval Jeyamony and the second petitioner, Tmt.T.G.Salomie were appointed in the approved post on 03.08.2006 and the said appointments were approved by the Educational Board on 23.11.2006 and subsequently by the Church council on 25.10.2007 and 09.02.2007 respectively. When the appointments were forwarded to the department for approval, the same was returned for complying with the directions issued by the Director of School Education, dated 26.10.2004. The said order came to be challenged by the Educational Agency, by filing W.P.No.15351 of 2007 and this Court had quashed the impugned order, by order dated 25.04.2007. Thereafter, the papers regarding the approval of the said two teachers is stated to have been represented before the first respondent. According to the petitioners, the first respondent in collusion with the fifth respondent has insisted upon the management to appoint the fourth respondent in any one of the vacancy and since the request was not obliged, the first respondent passed an order dated 16.07.2007, bringing the institution under direct payment, which came to be challenged by the management by filing W.P.No.25820/2007, and at the time, the present writ petition was filed, and it is stated that this was the provocation for the first respondent to pass the impugned return dated 23.07.2007. It is further submitted that the first respondent by order dated 27.07.2007, directed the headmaster of the school to submit all documents relating to the fourth respondent and by order dated 30.07.2007, appointed the fourth respondent as B.T. Assistant (Junior Grade) on temporary basis, and challenging the order dated 30.07.2007, the petitioner institution has filed W.P.No.32012/2007. 4. It is contended by the petitioner management that the impugned return memo dated 23.07.2007 is illegal, since G.O.Ms.No.100, dated 27.06.2003, does not apply to a minority institution and that the impugned return memo is on account of malafide intention, since the petitioner filed earlier writ petition in W.P.No.15351/2007, challenging the circular of the Director of School Education, dated 26.10.2004 and the same was quashed by this Court by order dated 25.04.2007. Further, it is contended that there has been violation of principle of natural justice. As regards, the impugned order in W.P.No.32012/2007, it is contended that the order is without jurisdiction, since there is no power under the rules for the first respondent to appoint a teacher in a private aided minority institution and there is no power under the provisions of Tamil Nadu Recognized Private Schools Regulation Act 1973 and the rules framed thereunder. It is further contended that the institution is a co- educational institution and the fourth respondent, a male candidate, is illegally thrust on the institution and the same has caused grave injustice to the institution as well as the children. 4. The first respondent in the counter affidavit filed in https://hcservices.ecourts.gov.in/hcservices/ support of the writ petition would contend that the first petitioner school is a minority institution and it is functioning without continuation of recognition from 01.06.2000 for standard VI to X and from 01.06.2003 for higher secondary sections, since there were complaints regarding the management of the school and also to avoid certain irregularities pertaining to sanction of leave, re-employment of teachers, sanction of teachers provident fund and approval of voluntary retirement scheme, the first respondent ordered for direct payment of the salary to the teachers. It is further submitted that the appointments made by the management through Parents Teachers Association is not necessarily approved by the first respondent and the third respondent has issued the directions in proceedings dated 14.08.2007, to scrutinize thoroughly and approve the appointments made by the management following the subject roster in regular vacancies, as per G.O.Ms.No.100, dated 27.06.2003. Therefore, it is submitted that the appointment of Tmt. Eval Jeyamony and Tmt.T.S.Salomie were returned by the office, since the management did not follow the subject roster as per the proceedings of the third respondent, dated 14.08.2007 and G.O.Ms.No.100, dated 27.06.2003. It is further submitted that the appointment order issued to the fourth respondent by the petitioner on 23.06.2007 was approved by the first respondent by proceedings dated 30.07.2007, as per the proceedings of the third respondent dated 27.07.2007 and therefore, the order of approval issued to the fourth respondent is in order and as per rules. It is submitted that in obedience to the direction issued by this Court in Corporate Manager, CSI corporate School Vs. State of Tamil Nadu (2006 5 CTC 505), the third respondent had issued proceedings dated 14.08.2007, to scrutinize thoroughly and approve the appointments made by the management following G.O.Ms.No.100, under which instructions were issued to follow subject roster as Maths, Science and English. It is further submitted that the appointment proposal of the second petitioner and Tmt.Eval Jeyamony were returned for non-compliance of the subject roster and there is no malafide intention or any other revengeful action for such orders. It is further contended that in terms of the proceedings of the third respondent, dated 30.07.2007, powers have been delegated to the District Educational Officer to make appointments on temporary basis, since School was functioning under direct payment system. 5. An additional counter affidavit has been filed by the first respondent in both the writ petitions stating that the former correspondent of the petitioner school, Rev.I.Thangaraj has issued regular appointment orders for six candidates, which includes the fourth respondent, Mr.J.Joshua Selvakumar and issued promotional orders for four candidates from 15.06.2001 to 28.01.2006 as he was working as correspondent of the school and the first respondent has approved the appointment and those teachers are drawing salary. 6. The fourth respondent has filed the counter affidavit stating that the permanent vacancy arose in the petitioner's school on https://hcservices.ecourts.gov.in/hcservices/ 01.06.2006 and the petitioner was appointed to the said regular vacancy on 23.06.2006, by the management of the school and that his appointment was not subject to any condition. It is further submitted that when the fourth respondent was appointed the Chief Administrative and Executive Body of the Church council was not functioning and it commenced to function only from 07.11.2006 and during the period, there was no Church council to manage the schools and the correspondent of the respective schools were managing the school. It is further stated that the fourth respondent's appointment was made by the correspondent of the petitioner school, who was competent at that point of time. However, after the Church council assumed office a new dimension is sought to be given to the fourth respondent's appointment by alleging that it was made by the Parents Teachers Association and not by the management, when the appointment order dated 23.06.2006 speaks for itself. It is further contended by the fourth respondent that after the Church council assumed office, the names of Tmt.T.G.Salomie and Tmt.Eval Jeyamony were submitted to the department for approval. Since, the fourth respondent's appointment was earlier in point of time, the fourth respondent is stated to have submitted a representation to the department and the educational authorities after being satisfied about the legality of the claim of the fourth respondent informed the management that his appointment is earlier in point of time and called upon them to submit the necessary proposal to have the appointment approved and on such proposal having been submitted the first respondent approved the same, by order dated 30.07.2007 (impugned in W.P.No.32012/2007). It is further submitted that the management refused to comply with certain directives of the educational authorities and consequently, by order dated 16.07.2007, the school was brought under direct payment. It is submitted that the source of power to make appointment is pursuant to the order dated 27.07.2007, passed by the third respondent and the said order having not been questioned by the petitioner, the present writ petition is not maintainable. It is submitted that the fourth respondent's appointment has been approved and he was receiving salary from 23.06.2006 and because of this, he has lost other job opportunities and he is being made a scope goat in a tussle between the earlier management and the present management and the appointment order is valid and there is no merits in the writ petition. It is further submitted by the fourth respondent that if there is any reason, this Court is of the view that the fourth respondent's appointment in the petitioner school is unwarranted, permission may be given to the department to accommodate the fourth respondent in some other school. 7. Heard. Mr.M.Joseph Thatheus Jerome, learned counsel appearing for the petitioners, Mr.P.Wilson, learned Additional Advocate General assisted by Mr.A.C.Mani Bharathi, learned Additional Government Pleader appearing for the respondents 1 to 3 and Mr.G.Jeremiah, learned counsel appearing for the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel appearing for the petitioners after reiterating the factual contentions raised in the affidavit filed in support of the writ petitions would contend that the impugned return memo is illegal and liable to be set aside, in view of the order passed by this Court in W.P.No.15351/2007, and the same is an out come of non-application of mind and tainted with malafide at the instance of the sixth respondent, former correspondent of the petitioner school and with the active assistance of the fifth respondent, who is none other than the father of the fourth respondent. It is further contended that the department has no power to appoint the fourth respondent and a bear perusal of the impugned order dated 30.07.2007, would reveal that the first respondent himself usurped the powers of the management and the Hon'ble Division Bench of this Court in the Society of the Brothers of the Sacred Heart of Jesus Vs. The State of Tamil Nadu, 1992 2 MLJ 514, held that Section 18(A) relating to the appointment of Special Officer in certain cases and 18(B) relating to appeal to the Special Tribunal under the provisions of the Tamil Nadu Private Schools Act are not applicable to minority institutions. It is further contended that even under the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977, there is no power to pass the impugned order. Rule 5 of the said rules deals only with procedure for payment of pay and allowances from State funds to teachers and other persons employed in minority schools and it shall be as per annexure I of the Rules. It is further contended that there has been gross violation of principles of natural justice and the impugned order has been passed for extraneous reasons and the order has to be set aside. The learned counsel appearing for the petitioners relied on the following decision in support of his contentions. i)THE CORPORATE MANAGER, CSI CORPORATE SCHOOLS VS. THE STATE OF TAMIL NADU, 2006 (5) CTC 504. ii)VIVEKA POORANA AIDED ELEMENTARY SCHOOL, VS. THE DIRECTOR OF ELEMENTARY EDUCATION AND OTHERS, 2004 WRIT L.R.248. iii)SOCIETY OF THE BROTHERS OF THE SACRED HEART OF JESUS VS. THE STATE OF TAMIL NADU, 1992 2 MLJ 514, iv)W.P.NO.18421/2008 dated 01.08.2008 v)W.A.556/2008 dated 27.07.2009 9. Per contra, the learned Additional Advocate General, Mr.P.Wilson would contend that the second petitioner, Tmt. T.G. Salomie has been appointed in another school and her appointment has also approved in another school and the writ petition itself has become infructuous and the impugned order in W.P.No.32011/2007 is only a return memo and it is open to the petitioner to represent the memo by stating their contentions. It is further submitted that till today the petitioner institution is not recognized and there were several complaints against the management. It is further submitted https://hcservices.ecourts.gov.in/hcservices/ that though, it is stated that the second petitioner was appointed on 09.02.2007, the proposal for approval of her appointment was sent only on 29.06.2007 and the proposal was correctly returned for non- compliance of subject roster. It is further submitted that even prior to sending such proposal, the fourth respondent has been appointed on 23.06.2006 and the copy of the appointment order has been signed by the correspondent. It is further submitted that the headmaster of the school, by proceedings dated 28.07.2007 had forwarded all particulars relating to the fourth respondent and the same was considered as per the rules and the appointment was approved and that there is no illegality or irrationality in the decision and there is no contravention of the rules and therefore, the impugned order does not call for any interference. It is further contended that Rule 50 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 is applicable and in terms of Rule 8 of the rules, the minority schools are required to send statement and there is sufficient power under the provisions of the Tamil Nadu Minority Schools Recognition and Payment of Grant Rules. 10. It is further contended that the order passed against the petitioner institution is only an order of direct payment and not an order of appointment of Special officer and therefore Section 18(A) of the Act would have no application. The learned Additional Advocate General would submit that W.P.No.25820/2007 was filed by the management, challenging the order of direct payment, which came to be allowed and the Government preferred an appeal in W.A.No.671/2008 and the Hon'ble Division Bench, by order dated 17.07.2009, set aside the order passed in the writ petition and directed that the direct payment order shall continue until, the applications for recognition are disposed of. It is further submitted that there is no material placed to establish the plea of malafide and the headmaster of the institution having forwarded the proposal, the management is now estopped from contending contrary to their own records. The learned Additional Advocate General relied on the following decision in support of his contentions. i)Dr.J.N.BANAVALIKAR Vs. MUNICIPAL CORPORATION OF DELHI AND ANOTHER, 1995 Supp (4) SCC 89 ii)UNION OF INDIA AND ANOTHER VS. ASHUTOSH KUMAR SRIVASTAVA AND ANOTHER, 2002 1 SCC 188 iii)CIVIL APPEAL No.7595/2004 dated 20.10.2009 iv)W.A.No.671/2008 dated 17.07.2009 11. Mr.Jeremiah, learned counsel appearing for the fourth respondent would contend that the writ petition is not maintainable, since the order passed by the Director of School Education, dated 27.07.2007 has not been questioned and the said order is the source of power. It is further contended that the fourth respondent was appointed on 23.06.2006 and the order of appointment does not state that he has been appointed by the Parents Teachers Association and https://hcservices.ecourts.gov.in/hcservices/ there are no conditions attached to his appointment. It is further submitted that on the date, when the fourth respondent was appointed, the correspondent was competent to issue the order of appointment and this is clearly established from the proceedings of the Educational Board, dated 25.01.2007 (page 13 of typed set of W.P.No.32011/2007), wherein it has been clearly stated that the Chief Administrative and Executive Body started functioning from 07.11.2006 and subsequently, the Chairman Education Board, TELC is appointed on 18.11.2006 and in the absence of the Church council, the schools were managed by the respective correspondents. By relying upon the said communication, the learned counsel would submit that as on 23.06.2006, the correspondent was competent to appoint the fourth respondent and even as per the management, the second petitioner was appointed only on 09.02.2007 and the retirement vacancy arose on 01.06.2006 and that the fourth respondent is continuing to function as teacher of the institution and if at present the appointment is to be interfered, fourth respondent rights would be prejudiced. 12. In reply, the learned counsel appearing for the petitioner would submit that the petitioner being minority institution Rule 15 (4) of the Rules has got no application and the reliance placed by the respondents on Rule 15(4) is incorrect. It is submitted that the order dated 11.07.2007, clearly states that the fourth respondent was appointed as a Parents Teachers nominee with a consolidated payment of Rs.1500/- per month and therefore, it cannot be contended that he was appointed in a regular manner. It is further contended that the headmaster of the school did not on his own accord forward the papers of the fourth respondent, on 28.07.2007 to the department for approval. This was done by the headmaster, in view of the direction issued by the first respondent on 27.07.2007, and the first respondent has no jurisdiction to exercise such power and interfere with the right of a minority institution. Therefore, the learned counsel appearing for the petitioner would submit that the impugned orders are liable to be set aside. 13. In W.P.No.32011/2007, the first petitioner management has challenged an endorsement made by the first respondent in the proposal sent by the management seeking approval of the appointment of the second writ petitioner Tmt. T.G.Salomie, as B.T. Assistant (Junior Grade). By the impugned endorsement, the proposal sent by the management has been returned stating that the subject roster as required to be followed in G.O.Ms.No.100, School Education Department, dated 27.06.2003 has not been adhered. The learned counsel appearing for the petitioner would submit that the impugned return is wholly without jurisdiction and relied upon the decision is of this Court. This Court in the case of Vivek Poorana Aided Elementary School Vs. The Director of Elementary Education and others, 2004 Writ L.R. 248, was considering the validity of various circulars issued by the Director of Elementary Education prohibiting appointment of teachers in private school from 01.06.2003, the https://hcservices.ecourts.gov.in/hcservices/ petitioners in the said batch of cases were private aided schools receiving aid from the Government in the said Judgment. The effect of G.O.Ms.No.100 was also considered and it was observed that in view of the specific provision in paragraph No.5 of the said Government order, G.O.Ms.No.100 does not govern the private schools, which are receiving aid from the government and the government contemplated passing separate orders in this regard. By taking into consideration, the said stipulation this Court ordered that G.O.Ms.No.100 is not applicable to private aided schools. In yet another decision of this Court in THE CORPORATE MANAGER, CSI CORPORATE SCHOOLS VS. THE STATE OF TAMIL NADU, 2006 (5) CTC 504, the effect of a circular issued by the Director of School Education dated 26.10.2004, pertaining to filling up of vacancies by adhering to subject roster came to be questioned. This Court held that the said circular dated 26.10.2004 is in violation of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules and G.O.No.125 dated 12.11.2003 and that the Act and Rules do not stipulate that the school should follow subject roster and held that the circular is without jurisdiction, illegal and in violation of annexure V of the Rules 1974. This Court in W.P.No.18424/2008, dated 01.08.2008 by following the above referred decision set aside an order passed by the Director of School Education refusing to grant approval of appointment made without following the subject roster. Thus in view of the settled legal position, the impugned return has to be held to be illegal and without jurisdiction. Having held so, the normal corollary, which should follow is to direct the authorities to approve the appointment of the second petitioner, if otherwise found suitable and eligible. However, it is not disputed by the parties to the present litigation that the second petitioner had since been appointed in another school and her appointment has been approved and she is receiving salary. 14. In fact, the submission of the learned Additional Advocate General is that W.P.No.32011/2007 had become infructuous. However, one fact to be noted is that the first petitioner management has not only questioned the return of the proposal submitted by the management, but also questioned the appointment of the fourth respondent by filing W.P.No.32012/2007. Hence, it has become necessary to go into the aspect as to whether the department was justified in passing the order dated 30.07.2007, impugned in W.P.No.32012/2007. In the order dated 30.07.2007, it has been stated that the first respondent has passed an order on 16.07.2007 and brought the school under direct payment. The management were unsuccessful in their challenge to such an order of direct payment after the Hon'ble Division Bench of this Court in W.A.No.671/2008, dated 17.07.2009, allowed the writ appeal filed by the Government. Further, it has been stated in the impugned order dated 30.07.2007 that the head master of the school has requested the department to appoint a B.T. Assistant in English as it is urgently required for the institution. Therefore, it is stated that considering the welfare of the institution and the students and that the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent, who is stated to have been appointed earlier and that his appointment is yet to be approved, he has been appointed as a purely temporary measure. The fourth respondent is appointed as B.T. Assistant subject to the conditions relating to verification of genuineness of his educational qualification and that the fourth respondent should not seek for any regular appointment on the strength of the temporary appointment. The correctness of this order is assailed on several