IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.22786 of 2004 and W.P.M.P.No.2158 of 2004 T.R. Subramanian ... Petitioner vs. 1. The State of Tamil Nadu represented by the Secretary, Education Department, Fort St. George, Chennai-9. 2. The Director of School Education, College Road, Chennai-6. 3. The District Educational Officer, Tiruvarur. 4. The Correspondent, George High School, Vishnupuram, Gudavasal Taluk, Tiruvarur District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to approve the petitioner's appointment made in 4th respondent school pursuant to G.O.Ms.No.150 School Education (1B1) Department dated 2.7.2007. For Petitioner : Mr. M.Muthappan For Respondents : Mr. G. Sankaran, Special Government Pleader for R1 to R3 Mr. K. Viswanathan for R4. ----- https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner in this case is a B.A. Graduate in Tamil and also qualified as Bachelor of Education. He was appointed as a secondary grade teacher on 11.11.1998 on a regular vacancy in the 4th respondent school. 2. The Government by G.O.Ms.No.559 (Educational, Science and Technology Department), dated 11.7.1995 passed orders directing the authority viz., Director of Elementary Education not to approve appointment of teachers, who have been appointed to the post of secondary grade teacher on the basis of the qualification B.Ed./Tamil Pandits. The said Government Order was challenged by the private school management and individual teachers in a batch of writ petitions and the same were dismissed by a learned single judge of this Court upholding the G.O. by an order dated 19.5.1998. Writ Appeal was filed in W.A.No.517 of 2000 challenging the order of the learned single judge and an order of status quo was passed on 27.3.2000. In the meanwhile, the petitioner herein filed W.P.No.5157 of 1999 and obtained an order of interim injunction in W.P.M.P.No.7537 of 1999 in WP No.5157 of 1999 not to terminate him from service. However, the said writ petition W.P.No.5157 of 1999 filed by the present petitioner was dismissed on 21.12.1999 following the order of the learned single judge dated 19.5.1998. Subsequently, the order of the learned Single Judge upholding the G.O.Ms.No.559, dated 11.7.1995 was upheld by the Division Bench in W.A.Nos.991 to 998 of 1998 batch, by judgment dated 29.6.2001. While deciding the writ appeal, the Division Bench of this Court recorded the statement made by the Additional Advocate General, which reads as follows:- " We appreciate the stand taken by the learned Additional Advocate General which is a pragmatic stand and has an unshakable base of experience. In order to avoid an undue hardship to these teachers who have been serving for years together in the lower classes even after studying for a graduation degree that too on meager salaries, it will better if an exercise is taken for the confirmation of these teachers. The modalities of which may be decided by the State Government. The State Government may decide to give the practical training or may even choose to individually examine each case on its own merits. There may be individual cases where the Management was absolutely justified in employing a graduate teacher and there could be others where there was no such justification. We do not wish to draw the details and leave it https://hcservices.ecourts.gov.in/hcservices/ to the State Government. However, the State Government shall take up this exercise as we have indicated above providing relief to at least such teachers, who have been inducted prior to the dismissal of the writ petitions before the learned single judge. We direct accordingly while dismissing the appeals and the writ petitions. No costs." 3. Pursuant to the order of the Division Bench, the Government issued G.O.Ms.No.155, dated 3.10.2002 granting the approval to the teachers, who were appointed prior to 19.5.1998 on condition that they should undergo one month training in child psychology. Some of the teachers, who were appointed between 19.5.1998 to 29.6.2001, (i.e.) the date of the order of the learned single judge and the order of the Division Bench as set out above, aggrieved by the non consideration of their claim for regular appointment pursuant to the order of the Division Bench, made an appeal to the Government based on the statement made by the Additional Advocate General before the Division Bench while deciding W.A.Nos.991 to 998 of 1998 batch and the same was considered based on the representation of the private school management and the teachers. The Government passed an order in G.O.Ms.No.150, dated 2.7.2007 granting benefit to 22 teachers and the relevant portion reads as follows:- @,e;neu;tpid. bjhlf;ff; fy;tp ,af;Feupd; gupe;Jiuapd; mog;gilapy; muR ftdkhf guprPypj;jJ/ MH;e;j guprPyidf;F gpd;du;. fPH;f;fz;lthW muR MizapLfpwJ/ 11/07/1995 Kjy; 19/05/1998 tiu gl;ljhup jkpHhrpupau; fy;tp jFjpa[ld; ,ilepiy Mrpupau; gzpapl';fspy; epakdk; bra;ag;gl;l ,ilepiy Mrpupah;fSf;F xU khj FHe;ij kd eyd; gapw;rp tH';fp Kiwg;gLj;jpl murhiz (epiy) vz;/155/ gs;spf; fy;tpj;Jiw ehs; 3/10/2002y; Mizfs; btspaplg; gl;ljd; mog;gilapy;. ,e;neu;tpy; guprPypf;fg;gLk; gl;ljhup fy;tp jFjpa[ld; , ilepiy Mrpupau; gzpapl';fspy; nkw;go murhizapy; Fwpg;gplg;gl;l fhy tiuaiwahd 19/5/98f;Fk; nky;KiwaPl;L bjhFg;g[ tHf;Ffspy; brd;id cau;ePjp kd;wj;jpd; otprd; bgd;r; jPu;g;g[ tH';fpa ehs; 29/6/2001f;F ,ilg;gl;l fhyj;jpy; epakdk; bra;ag;gl;l 22 ,ilepiy Mrpupau;fSf;F nkw;fz;l murhizapy; tH';fg;gl;l rYifapid ePl;oj;J/ mtu;fsJ epakdj;jpw;F muR xg;g[jy; mspf;fpwJ/ murhiz (epiy) vz;/155 gs;sp fy;tpj;Jiw ehs; 3/10/2002 , https://hcservices.ecourts.gov.in/hcservices/ y; btspaplg;gl;l epge;jidfs;. ,e;neu;tpy; xg;g[[jy; mspf;fg;gLk; jdpahu;fSf;Fk; bghUe;Jk; vd;Wk; muR MizapLfpwJ/@ 4. The petitioner in this case, as stated earlier, was appointed on 11.11.1998 after the order of the learned Single Judge dated 19.5.1998 and before the order passed by the Division Bench on 29.6.2001. Since 22 teachers, who are similarly placed, have been granted the benefit in the above stated G.O.150, dated 2.7.2007, the present writ petitioner, who is left out, stating that he also falls under the same category filed the present writ petition apprehending that he will be terminated at any point of time in view of the order of Division Bench dated 29.6.2001 and also in view of the G.O.No.155, dated 3.10.2002 in which the cut off date was fixed as 19.5.1998. The writ petition is also filed on the premise that as against the order of the Division Bench dated 29.6.2001, some of the private management have preferred S.L.P. before the Supreme Court and the matter was pending. 5. The learned counsel for the petitioner contended that the appointment of the petitioner on 11.11.1998 is in a regular vacancy and he continued to be in service of the school till 2004. He is entitled to be given the same benefit as that of the 22 teachers, who are enjoying the benefits of G.O.No.150, School Education (1B1) Department dated 2.7.2007. 6. Pending writ petition, this Court, by order dated 25.10.2007 in W.P.M.P.No.2158 of 2007 in W/P.No.22786 of 2004 passed the following order:- "Pursuant to this, the petitioner has also made a representation. Considering the facts and circumstances of the case, there will be a direction as follows:- "The respondent shall verify whether the petitioner is one of the 22 teachers mentioned in the G.O.Ms.No.150, School Education (B) Department dated 2.7.2007 and if so, the respondent shall send the petitioner for training in child psychology. The verification and the order shall be done within a period of two weeks from today. Post on 5.11.2007." https://hcservices.ecourts.gov.in/hcservices/ 7. On verification, the respondents 1 to 3 stated that the name of the petitioner was not included in G.O.Ms.No.150, dated 2.7.2007 and therefore, he was not considered for training in child psychology and his appointment was not approved. 8. The counsel for the 4th respondent school states that because of the vacancy that arose due to the non approval of the present petitioner, another teacher has been appointed. They, however, have on principle no objection to consider the claim of the present petitioner if there is a vacancy in the same school. The counsel stated that the petitioner may be considered for appointment in any other school in the same District on transfer if available. He further stated that there is no remark or complaint against the writ petitioner. 9. As far as respondents 1 to 3 are concerned, it was stated by the Special Government Pleader that the petitioner in the present case is appointed on 11.9.1998 in a regular vacancy based on the school's need then and his appointment is well before the order of the Division Bench dated 29.6.2001. The reason for non inclusion of the name of the petitioner in G.O.Ms.No.150, dated 2.7.2007 is that the name of the petitioner was not sponsored for whatever reason. The Special Government Pleader stated that the benefit granted to 22 teachers, who are similarly placed as that of the present petitioner can be extended to the petitioner provided there is a suitable vacancy in any one of the schools in the District including that of the 4th respondent school. Once he is appointed in a regular vacancy, he has to undergo the child psychology training course in terms of the G.O.Ms.No.155, dated 3.10.2002 and or on any other relevant Government Order. It is also stated that at the present stage, re-deployment of teachers is going on in the Education Department and the petitioner's case can be considered as in the case of 22 teachers referred to above in terms of G.O.Ms.525 School Education (D1) Department dated 29.12.1997, which relates to norms in appointment of teachers. The relevant portion reads as follows:- "Those who may be rendered surplus due to application of these norms, as far as possible be redeployed to the needy schools." He therefore, stated that suitable direction may be issued for the authorities to act as per the relevant provision. 10. The writ petitioner has been appointed on 11.11.1998 on regular vacancy and has already worked from 11.11.1998 to till 2004. He is otherwise qualified except to the extent that he has not undergone child psychology training in terms of G.O.Ms.No.155, dated 3.10.2002 and other G.O. as applicable. In view of https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.150, dated 2.7.2007, granting benefits to 22 similarly placed teachers, the claim of the petitioner herein has to be considered on the same analogy. All the teachers, who are beneficiaries of G.O.Ms.No.150, dated 2.7.2007 have been appointed after the order of the learned single Judge dated 19.5.1998 dismissing the writ petitions. The benefit was given to the 22 teachers after careful consideration of the problem and that is pursuant to the observation of the Division Bench in W.A.Nos.991 to 998 of 1998 batch which has been extracted earlier. The petitioner alone cannot be singled out. It is apparent that even the respondent department was not sure if the petitioner's name was in the list of 22 teachers. It is on Court's direction that the non- inclusion of the petitioner's name came to light. If the petitioner's claim was also considered by the respondent department, then itself the petitioner would have had the benefit that the 22 teachers got in the terms of G.O.No.150 dated 2.7.2007. It is to be noted that such relief was granted earlier in G.O.Ms.No.203 Education, Science and Technology Department dated 19.3.1996 ratifying the appointment of teachers in the vacancy of Secondary Grade Teachers upto 10.7.1995. 11. The appointment of the writ petitioner/teacher was on 11.11.1998 in a regular vacancy and he continued in employment till 2004. His appointment was terminated in view of the order dated 29.6.2001 passed by the Division Bench. The only impediment in giving the benefit to the petitioner is that he has not undergone the child psychology training during his tenure as teacher between 1998 and 2004. The teachers, who have appointed during this period viz., 22 teachers between 19-5-1998 to 29.6.2001 had been given the benefit under G.O.Ms.No.150, dated 2.7.2007 and have been sent for training in child psychology. This petitioner is no different from that of the 22 teachers as stated above. The statement of the respondent department to consider petitioner's case during re-deployment has to be taken note of as the petitioner is qualified and eligible. He was appointed to a regular vacancy and the school needed him and he was working for quiet a long time. This is not a case of superfluous appointment but a bona fide appointment and need based. 12. Article 21A of the Constitution of India provides the Right to Education and is as follows:- "21A. Right to education:- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." https://hcservices.ecourts.gov.in/hcservices/ The right flowing from Article 21A of the Constitution of India (i.e.) Right to Education will apply to appointment of the required number of teachers based on the students strength and needs which is assessed by the school. The petitioner's appointment cannot be faulted and it is not stated so. The benefit under G.O.No.150, dated 2.7.2007 will, therefore, apply to this petitioner also. Since the writ petitioner was employed from 1.11.1998 till 2004 on a regular vacancy the benefit given to others viz., 22 teachers as per G.O.Ms.No.150, dated 2.7.2007, will enure to the writ petitioner as well. 13. In such circumstances, in view of the G.O.Ms.No.150, dated 2.7.2007, which extends the benefit to 22 teachers subject to compliance of G.O.Ms.No.155 dated 3.10.2002, the present petitioner in this case shall be re-employed in the 4th respondent school and if there is no vacancy in the 4th respondent school, he will be redeployed to any one of the schools in which there is a regular vacancy in terms of G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997. On such re-employment or re- deployment, the petitioner will be entitled to undergo child psychology training in terms of G.O.Ms.No.155, dated 3.10.2002 or any other relevant Government Order or direction. 14. The learned counsel for the petitioner on instructions states that the petitioner will not claim the back wages from the date of his termination till the date of re-appointment. The same is recorded. 15. In the result, the Writ Petition is ordered as follows:- (i) The third respondent is directed to approve the appointment of the petitioner as secondary grade teacher in the 4th respondent school in the regular post. (ii) On such appointment, if the petitioner is found surplus, the petitioner will be re-deployed in terms of G.O.Ms.525 School Education (D1) Department dated 29.12.1997 in any one of the aided school under the jurisdiction of the third respondent where the vacancy is available. (iii) On such appointment as above, the writ petitioner will be sent for the child psychology training in terms of G.O.No.155, dated 3.10.2002 or any other relevant Government Order applicable forthwith. (iv) The petitioner will not be entitled to salary or other benefits for the period not in service. https://hcservices.ecourts.gov.in/hcservices/ (v) The second respondent is directed to pass suitable orders within a period of four weeks from the date of receipt of a copy of this order. (vi) There will be no order as to costs. (vii) Consequently, connected miscellaneous petition is closed. ra/ts Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Secretary, Education Department, Fort St. George, Chennai.9. 2. The Director of School Education, College Road, Chennai.6. 3. The District Educational Officer, Tiruvarur. 4. The Correspondent, George High School, Vishnupuram, Gudavasal Taluk, Tiruvarur District. 1 cc to Mr.M.Muthappan, Advocate, SR.61988 1 cc to Mr.K.Viswanath, Advocate, SR.62145 1 cc to Government Pleader, SR.62058 nsm (co) dv/11.12. Order in W.P.No.22786 of 2004 https://hcservices.ecourts.gov.in/hcservices/