1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9273 of 2011 The Secretary Sri Thirikudaraja Primary School Tenkasi, Tirunelveli District. ... Petitioner Vs 1.The State of Tamil Nadu Rep. By its Secretary, Department of School Education, Fort St. George, Chennai 600 009. 2.The Director of Elementary Education, College Road, Chennai – 600 006. 3.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District 4.The Additional Assistant Elementary Educational Officer, Tenkasi 627 811 Tirunelveli District. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the second respondent Director of Elementary Education vide O.Mu.No.3564/G1/2011 dated 10.05.2011, quash the same and further direct the second respondent to forward forthwith the petitioner's proposal for relaxation to the first respondent State Government dated 30.04.2008 (resubmitted on 20.08.2010) and further directing the first respondent to consider and pass appropriate orders on the same within a reasonable time. For petitioner ...Mr.Isaac Mohanlal For respondent ...Mr.S.Chandrasekar, Government Advocate O R D E R Challenge in this writ petition is to an order, dated 10.05.2011, rejecting the request of the Secretary, Sri Thirikudaraja Primary School, the petitioner herein, seeking for relaxation of teaching experience for five years, required for appointment to the post of Headmaster in the primary school. According to the petitioner, the qualification to the post of Headmaster in Primary School is five years teaching experience, in the post of Secondary Grade Teacher. 2. According to the petitioner school, the Headmaster of the School retired on 31.05.2002. Though the school made all efforts to select and appoint a suitable candidate, there was no suitable https://hcservices.ecourts.gov.in/hcservices/ 2 person. Even the candidates sponsored by the District Employment Officer were not found suitable and therefore, the School committee decided to appoint one Mrs.C.Richard Rose as the Headmaster and accordingly passed a resolution on 30.04.2008 and appointed her as Headmistress. Subsequently, when proposals were sent for grant-in-aid and relaxation of the pre-requisite, of five years of teaching experience, was sought for, the same were returned by the District Elementary Educational Officer on 06.06.2008, stating that the proposals could not be considered, as the petitioner has not satisfied the required teaching experience. The request for relaxation of five years teaching experience has been rejected by the Director of Elementary Education, Chennai, by an order dated 10.05.2011, which is impugned in this writ petition. 3. Assailing the correctness of the order and inviting the attention of this Court to Section 20(3) of the Tamil Nadu Recognised Private Schools (Regulation) Act 1973 (hereinafter referred to as 'the Act'), learned counsel for the petitioner submitted that when the Government is the competent authority by general or special order, whether prospectively or retrospectively, exempt any person or class of persons from possessing the qualifications prescribed under section 19 of the Act, relating to age and experience for appointment as Teacher or other employee in any private school, subject to such conditions, if any, as may be specified in such order, the Director of Elementary Education, Chennai, the second respondent herein, has no jurisdiction to reject the request for relaxation and therefore, there is a jurisdictional error committed by the Director of Elementary Education, Chennai, the second respondent herein. 4. Learned counsel for the petitioner further submitted that the appointment of the petitioner as Headmistress of Primary school was necessitated as there were no willing, eligible candidates in the District of Tirunelveli for appointment to the said post. In such circumstances, the Director of Elementary Education, Chennai, ought to have considered the peculiar circumstances of the case that the school committee was constrained to take a decision to appoint, the above said person as Headmistress of the school. 5. Considering the relief sought for, Mr.S.Chandrasekar, learned Government Advocate was put on notice and heard. He submitted that relaxation cannot be claimed as a matter of right and that the Director of Elementary Education, Chennai, the second respondent herein, is competent to decide as to whether relaxation could be granted or not. He, therefore, stated that there is no jurisdictional error. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Section 19 of the Act states that the qualifications, conditions of service, etc., of teachers and other persons employed in private schools, the Government may make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of the teachers and other persons employed in any private school. https://hcservices.ecourts.gov.in/hcservices/ 3 8. According to the petitioner, the qualification prescribed for the post of Headmaster in the primary school, is Diploma in Teacher Education with five years teaching experience, as Secondary Grade Teacher. Admittedly, the petitioner does not posses the teaching experience and therefore, has not satisfied the requirement. 9. Annexure-III of Rule 19 of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974, states that in respect of pre-primary, primary and middle schools in non-panchayat union areas, the secretary of the school shall submit a monthly statement containing the details of teachers and other persons, their pay and allowances, etc., for the month, to the Deputy Inspector of Schools. The Deputy Inspector of Schools, after scrutiny of the statement, shall submit the same to the District Educational officer concerned with his recommendations. The District Educational Officer shall release the teaching grant bills to the Secretary of the school marking a copy of his sanction orders to the Treasury and who shall disburse the pay and allowances to the teachers and other persons employed in a private school on the 1st of every month or any date authorised by the Director of School Education. Before releasing the teaching grant or staff grant, the District Educational Officer shall verify and satisfy himself as to whether the appointments made by the school committee are in accordance with the rules and the government orders in force. 10. From the above statutory provision, it is clear that even the District Educational Officer, within whose jurisdiction, the school is situated, is competent to approve the appointments made by the school committee, if such appointment is in confirmity with the statutory rules and the Government orders and to verify as to whether the teacher or nonteaching staff, appointed on the recommendation of the school committee, satisfy the educational qualification, experience and other criteria prescribed for the post. He can also verify whether the roster has been followed. 11. Section 20 of the Act, states that “(1) no person, who does not possess qualification prescribed under 19 shall, on or after the date of the commencement of this Act, be appointed as teacher or other employee in any private school. (2) nothing contained in this section or any rule made thereunder shall apply to any person who, on or before the date of commencement of this Act, is employed as teacher or other employee in any private school. (3) notwithstanding anything contained in sub- section (1), the Government may, by general or special order, whether prospectively or retrospectively, exempt any person or class of persons from possessing the https://hcservices.ecourts.gov.in/hcservices/ 4 qualifications prescribed under Section 19 relating to age and experience for appointment as teacher or other employee in any private school, subject to such conditions, if any, as may be specified in such order. “ 12. No doubt, as per the sub Section 3 of Section 20 of the Act, the Government is empowered to issue a general or special order. But that will not prevent the Director of Elementary Education, Chennai, from considering, any request for relaxation on merits and he is not a mere forwarding agent mechanically send every application seeking for relaxation to the Government. When the District Educational Officer, is competent to ascertain, as to whether the appointment of teaching or non teaching staff in a recognised private school, is in accordance with statutory rules or the government orders issued from time to time, and also to reject a request for approval, it cannot be contended that the head of the department, namely, the Director of Elementary Education, Chennai, is powerless to decide a request for relaxation. 13. Even perusal of the supporting affidavit would show that the petitioner, conferring jurisdiction on the Director of Elementary Education, Chennai, the second respondent herein, has stated in ground No.(f) that the Director ought to have considered the peculiar circumstances under which the school committee has decided to appoint the said C.Richard Rose as Headmaster of the school. Even as per the averments of the Director of Elementary Education, Chennai, has the power or authority to consider the peculiar circumstances, as claimed by the petitioner, then he is equally empowered to consider whether the request for relaxation has to be forwarded to the Government for passing appropriate orders. 14. Perusal of the proceedings in Government letter in No.6051/B1/2011-1 dated 25.03.2011, addressed to the Director of Elementary Education, Chennai, the second respondent herein, shows that when a similar request for relaxation of five years experience, was made in respect of one Mr.Gurumoorthy, the Secretary to the Government, School Education Department, Chennai, the first respondent herein, has issued instructions that granting relaxation in such matters have to be made, only in exceptional circumstances and accordingly, has issued instructions, to the Director of Elementary Education, Chennai, to consider the proposals, wherever a claim for relaxation is made. Pursuant to the abovesaid instructions of the Government contained in the letter dated 25.03.2011, the Director of Elementary Education, Chennai, in his proceedings in Mu.Mu.No.39815/H4/2010, dated 01.04.2011, has issued instructions to all the District Elementary Educational Officers, to follow the guidelines contained in the Government letter. The contention, that the Director of Elementary Education, Chennai, the second respondent herein, has no power or authority to consider the proposal for relaxation or to reject, the same cannot be accepted, for the reason, https://hcservices.ecourts.gov.in/hcservices/ 5 that in the abovesaid letter the government have made it clear only in exceptional circumstances, the proposals have to be considered. In such circumstances, it is not open to the petitioner to contend that every request made for relaxation should be mechanically forwarded to the Government. The word 'consider' means to take appropriate decision on the facts and circumstances of a case with reference to statutory provisions. Relaxation of recruitment cannot be sought for as a matter of right. 15. In P.Natarajan v. 1.N.Palanisamy, Teacher, Aided Middle School, Vadakkaranur, 2.Government of Tamil Nadu rep. by Secretary Education Department, Fort St. George, Madras -9, 3.The Director of School Education, (Elementary) College Road, Madras-6, 4.Sheik Kabur Sahib, Correspondent, Aided Middle School, Vadakkaranur, reported in 1996 WLR 434, a Division Bench of this Court, has held that relaxation of teaching experience, cannot be claimed as a matter of right. 16. In view of the decision cited supra and on the facts and circumstances of this case, this Court is of the view that there is no manifest illegality on the part of the second respondent in rejecting the request of the petitioner School, the writ petition fails, accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar To 1.The Secrectary, State of Tamil Nadu Department of School Education, Fort St. George, Chennai 600 009 2.The Director of Elementary Education, College Road, Chennai – 600 006. 3.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District 4.The Additional Assistant Elementary Educational Officer, Tenkasi 627 811 Tirunelveli District. +1cc to Mr.Isaac Mohanlal, Advocate, Sr.No.28322 +one cc to Special Government Pleader, Sr.no.28266 Writ Petition No.9273 of 2011 and M.P.Nos.1 and 2 of 2011 rr/SMA/14.9.2011/7C/5P 18.08.2011 https://hcservices.ecourts.gov.in/hcservices/