BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27/09/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.4667 of 2009
and
M.P.(MD)NO.1 OF 2009
B.S.Shini Angel .. Petitioner
Vs.
1.The Chief Educational Officer,
Nagercoil,
Kanyakumari District.
2.The District Educational Officer,
Kuzhithurai,
at Marthandam,
Kanyakumari District-629 165
3.The Corporate Management Schools,
Kanyakumari Diocese, C.S.I.,
Nageroil,
Kanyakumari District,
rep. By the Corporate Manager,
C.S.I. Kanyakumari Diocese,
Diocesan Office,
Nagercoil,
Kanyakumari District-629 001.
4.RTM L.M.S. Higher Secondary School,
Venkanji,
Kollemcode P.O.
Kanyakumari District
represented by its Correspondent
5.The Headmaster,
RTM L.M.S. Higher Secondary School,
Venkanji, Kollemcode P.O.,
Kanyakumari District.
6.The Bishop,
Church of South India,
Kanyakumari Diocese,
C.S.I. Diocesan Office,
71-A, Dennis Street,
Nagercoil, Kanyakumari District-629 001. .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct respondents 1 and 2 to approve the petitioner's appointment as Junior Grade B.Ed Teacher (Malayalam) in the fourth respondent School with effect from the forenoon of 23.7.2008.
!For Petitioner ... Mr.K.N.Thampi
^For Respondents ... Mr.R.Janakiramulu for RR1 and 2 Mr.K.Sreekumaran Nair for RR3 to 6
- - - -
:ORDER
The petitioner has filed the present writ petition seeking for a direction to first and second respondents, I.e. The Chief Educational Officer, Nagercoil, Kanyakumari District and the District Educational Officer, Kuzhithurai at Marthandam to approve her appointment as a Junior Grade B.Ed Teacher (Malayalam) in the fourth respondent school with effect from 23.07.2008.
2.When the matter came up on 12.06.2009, this court while ordering notice granted an interim injunction for a particular period and that was only for a period of 18 days. Thereafter, the matter was adjourned from time to time and the interim order also came to be extended till such time. The dates and duration of extension of interim orders granted are as below:-
30.06.2009 M.Sathyanarayanan, J. two weeks
14.07.2009 -do- four weeks
08.08.2009 R.S.Ramanathan, J. two weeks
11.09.2009 R.S.Ramanathan, J. four weeks
09.10.2009 -do- four weeks
06.11.2009 K.N.Basha, J. four weeks
04.12.2009 -do- six weeks
17.02.2010 V.Dhanapalan, J. two weeks
05.03.2010 P.Jyothimani, J. Six days
11.03.2010 -do- Six days
07.04.2010 -do- Two weeks
21.04.2010 -do- Eight weeks
17.06.2010 R.S.Ramanathan, J. Until further orders 01.07.2010 -do- Four weeks
29.07.2010 -do- Four weeks
26.08.2010 -do- Two weeks
3.On notice from this court, the sixth respondent, Bishop, Church of South India, filed a counter affidavit on his behalf as well as on behalf of respondents 3 to 5. A typed set of documents supporting the averments made in the counter affidavit was also filed. The petitioner has filed a reply affidavit, dated 25.08.2009 and additional typed set of papers.
4.In the counter affidavit filed by the sixth respondent, it was claimed that the fourth respondent school is a minority school protected under Article 30 of the Constitution of India. As per the bye-law of the CSI Diocese, Kanyakumari, under paragraph 39.3, an appointment has to be made based on the decision of the educational board as communicated by the Corporate Manager. Paragraph 39.3 of the Constitution of the CSI Kanyakumari Diocese reads as follows:
"39.3.Management of Schools
The Education Board of the Kanyakumari Diocese as Education Agency shall be represented by the Bishop. The Corporate Manager shall be in general supervision over all schools in the Diocese and he shall communicate decisions of the Board regarding appointments, transfers, retirements and punishments, etc., to the Correspondents of the schools concerned. All orders regarding appointments, transfers, retirements, punishments, etc., will be separately issued by the Correspondents of the schools concerned based on the decision of the Education Board as communicated by the Corporate Manager. Neither the Corporate Manager nor the Correspondents shall make any appointment or transfer independent of the decision of the Board of School Education."
5.Under paragraph 39.1, the Board of School Education comprised of the following authorities:
39.The Board of School Education
39.1 Membership
A.The Bishop - Ex-officio Chairman.
B.The Corporate Manager appointed by the
Executive Committee - Ex-officio Secretary.
C.The Correspondents of the Diocesan High and Higher Secondary Schools.
D.The Headmasters and Headmistresses
of the Diocesan Higher Secondary Schools.
E.Five persons elected by the Diocesan
Council of whom one shall be a woman.
6.Therefore, it is contended that in the absence of the Bishop, he may appoint a Commission. Paragraph 62.4 (H)reads as follows: "H.The Bishop may appoint a commissary either under a general commission to act for him during his absence from the Diocese or duirng his incapacity to discharge his duties as Bishop or under a special commission to perform on his behalf some particular duty named in the commission. The Bishop cannot authorize his commissary to exercise his suspensory power over decisions and resolutions of the Diocesan Council nor can he [unless the commissary be himself a Bishop] delegate to him his functions with respect to ordination and confirmation. The appointment of a general commissary must be approved by the Executive Committee."
7.It is stated by the Bishop that as he was away from India, he appointed one Rev.K.M.Devaraj as the Commissary on 4.7.2008 to perform certain specific duties. A copy of the said order was also produced in the typed set filed by the sixth respondent, wherein it was indicated that he will be away from 9.7.2008 to 14.08.2008 and he was asked to perform ministerial functions and day-to-day routine administration in the Diocesan office. It was specifically indicated that he should not chair any Board or committee which are to be Chaired by the Bishop. When the sixth respondent came to know that in his absence, certain appointments have been made which were illegal and without authority, he sent a letter, dated 13.8.2008 to the second respondent DEO. The said letter reads as follows:
"I wish to inform you that the Corporate Manager of the Kanyakumari Diocese, C.S.I. has issued appointment order to Mrs.B.S.Shini Angel as Junior Grade B.Ed. Teacher (Malayalam) at RTM L.M.S. H.S.S., Venkanji without the resolution and authorisation of the Appointments Committee and the Board of School Education Kanyakumari Diocese. I have already taken exemption and stayed the so called appointments vide my letter dated 11.8.2008, a copy of the same is enclosed herewith for your perusal. Therefore, I request you to keep the approval of the said posts pending."
8.He also got a letter from the fifth respondent Headmaster that the Headmaster never sought for any secondary grade teacher for Malayalam section and also for teaching science. Though the counsel for the petitioner contended that it was a got up document, the sixth respondent also produced a copy of minutes of Board of School Education, dated 11.7.2009. With reference to the appointment made by the appointment committee, dated 15.7.2008, the Board resolved as follows:
"The minutes of the so-called Appointment Committee dated 15.7.2008 is studied elaborately and the board unanimously passed a resolution as "This Board unanimously rejected the minutes of the previous so called appointment committee dated 15.7.2008 as illegal and unconstitutional since the same is convened in contravention of the C.S.I. K.K.Diocese Constitution and against the policy decision already taken."
9.In the light of these developments, the sixth respondent Bishop in his counter affidavit, dated 10.7.2009 stated that the Commissary has no power to appoint any one. The then Corporate Manager and the Correspondent T.Nelson colluded and gave an illegal order of appointment violating the provisions of the CSI Constitution. Therefore, there was reconstitution of the Corporate Manager as well as the Correspondent of the School.
10.With reference to the requirement for appointment of a secondary grade teacher for the Malayalam section, the Bishop in paragraph 10 of the counter affidavit averred as follows:
"10....there is no vacancy for Malayalam,Science Teacher. The Headmaster of the school did not make any demand to the Management that Malayalam, Science Teacher should be appointed. As a matter of fact, a Tamil Teacher has to be appointed urgently as we do not have sufficient strength of Malayalam students. As I was away in the U.K. the then Corporate Manager and Correspondent did everything hurriedly and exerted undue pressure on the Headmaster to create evidence that the appointment was made and recommendation was made to the Government authorities for approval. Everything was done in undue haste. When the illegal order was brought to my notice I wrote a letter to the District Educational Officer, Kuzhithurai, dated 13.8.2008 that the order of appointment was made without resolution and authorization of the appointments committee and the Board of School Education of Kanyakumari Diocese. I also informed that I had already stayed the order of appointment vide my letter dated 11.8.2008."
11.He also stated that no approval can be granted at the instance of the petitioner, who is allegedly holding an illegal appointment order by persons who were not authorised. In paragraph 16 of the counter, it was averred as follows: "16....If appointments are made without the knowledge of Educational Agencies and Bishop and if such appointments are not discouraged or put an end to, the administration of the various Educational Institutions by CSI Diocese will become impossible. Therefore, this kind of illegal activities on the part of some officials have to be controlled and curtailed at the initial stage. The order of illegal appointment was stayed by me when I came to know about it. Now the petitioner is signing attendance register everyday on the strength of order of this honourable Court. The petitioner is fully aware that the order of appointment was given to her without prior decision of Board of School Education."
12.Therefore, in the light of these averments, he sought for dismissal of the writ petition.
13.The short question that arises for consideration is whether the petitioner is entitled for the relief claimed by her?
14.In the present case, the relief claimed by the petitioner is directed against respondents 1 and 2, who are the official respondents. A school teacher, who was appointed by the private school management, cannot maintain a writ petition seeking for approval by the authorities of her appointment. The relationship of employer and employee is between her and the private school management. She cannot dehors the management seek for an approval of her appointment by the Government which is the grant in aid authority. If at all, it is for the private management which can seek for any approval for such posts from the Government. A copy of the appointment order, dated 23.07.2008 produced by her found in page 59 of the typed set, signed by the Correspondent of R.T.M.L.M.S. Higher Secondary School, Venkanji, Kollemcode reads as follows: "Smt.B.S.Shini Angels Raja Bhavan Mathar is appointed Junior Grade B.Ed. teacher under this management on a pay of Rs.5500/- plus Rs.- D.A. Per mensum in the scale of Rs.5500-175-9000 and is posted as Probationary in this School from 23.07.2008 F.N. In the vacancy of Tmt.V.Beatress Sheeba who has been promoted as per order No.C.M.90A/2008 dt.23.07.08, Corporate Manager. This appointment is subject to termination on either side on justifiable grounds at one month notice with the previous approval of the Department and without notice in the event of misconduct on the part of the teacher or if retrenchment becomes necessary on account of reduction in the strength of the class."
15.Therefore, if any approval is sought, it can be done only by the educational agency, i.e. the Bishop and the Manager of the School.
16.In this context, it is necessary to refer to the judgment of the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others reported in 1989 (2) SCC 691. The Supreme Court has held the employer is responsible to pay salary and other benefits to their staff without waiting for the grant. In paragraph 10 of the judgment, the Supreme Court observed as follows: "10....We heard counsel for the State. He disputes the appellants' claim. In fact, he challenges the claim on a number of grounds. He says that the State is under no obligation to pay the appellants as against the sum due to the respondents. We do not think that we need rule today on this controversy. It is indeed wholly outside the scope of these appeals. We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention." (Emphasis added) Inasmuch as the educational agency did not seek for approval of her post, the prayer in the nature of writ of mandamus cannot be issued as claimed by the petitioner.
17.However, Mr.K.N.Thambi, learned counsel for the petitioner contended that pursuant to the appointment order, she had joined service and she has been allotted attendance for taking classes for 7th and 9th standard as per the timetable produced. Notes of lesson containing 54 pages was also found in the typed set of papers running from page 62 to 116. The petitioner had produced a copy of the letter sent by the Correspondent of the School, i.e. fourth respondent, dated 18.9.2008 informing the second respondent DEO, Kuzhithurai that for the middle school section in Malayalam medium, three secondary grade Malayalam teachers were appointed. One Beatrix Sheeba, Malayalam Secondary Grade Teacher, got promoted on 16.7.2008. In that vacancy caused due to her promotion, the petitioner was appointed by the management with effect from 23.7.2008 as per the order passed by the Manager of the Corporate School on 23.7.2008. Under the Corporate management, no other school is having Malayalam medium in the middle school section for 6th, 7th and 8th standards and only in the 4th respondent school, three teachers are eligible to be appointed. Hence there is no surplus in the school. The report on change of staff was also enclosed along with the letter.
18.It is seen from the records that on the basis of the inspection made, the staff strength as on 1.8.2008 was assessed. For 6th standard, there are only 12 students in the Malayalam section. For 7th standard, there are 18 students and for 8th standard, there are 16 students. In the High School, for 9th standard, there are 24 students and for 10th standard, there are 28 students. Totally, in the middle school as well as High School, there were 98 students. In respect of classes 6 to 10 in the Tamil Medium, there were 328 students. The total sanctioned strength of secondary grade teachers are 6 and the graduate teachers are also 6. It was found that on the basis of students' strength, the teachers permitted for previous academic year (2007-2008) was 20. For the year 2008-2009, it was 17. It was declared that there are three surplus teachers in the school.
19.The second respondent (DEO) by a communication, dated 18.11.2008, gave a correction order (after a representation was given), stating that the sanctioned strength of the secondary grade teacher was only 6 and there was one surplus teacher. The school Headmaster (R5) on his own wrote a communication dated 18.2.2009 to the Secretary, Board of Public Examination, Kerala to inform the genuineness of SSLC certificate which is a requirement for approving any post. In response to the communication, on 20.02.2009, the University of Kerala sent a letter to the Headmaster stating that the pre Degree certificate cum mark list was genuine. It is on the strength of these materials, the petitioner is seeking for approval of her appointment.
20.The contention raised by the learned counsel for the petitioner was that having appointed her for the post of secondary grade teacher, the respondent cannot wriggle out their commitment. Further, inasmuch as the petitioner was given appointment, promissory estoppel will apply. For this purpose, he relied on a judgment of the Supreme Court in Sanatan Gauda v. Berhampur University reported in (1990) 3 SCC 23 = AIR 1990 SC 1075. It is not clear as to how the application of promissory estoppel as found in that case will be of any assistance to the petitioner. The case before the Supreme Court was that a candidate was admitted to three year Law degree course. But only after he wrote his final examination and at the time of declaration of his results, his alleged inability to enter the course was found out. Therefore, the Supreme Court held that because of negligence of the Principal and the University authorities, the student cannot be punished. In the present case, as seen from the appointment order, even if it is accepted to be a valid one, it is the petitioner who is seeking for the grant of approval that too after her appointment was cancelled by the educational agency and the department itself had accepted that there was surplus post in secondary grade teachers grade.
21.The learned counsel for the petitioner further relied on the judgment of the Supreme Court in Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. reported in (1983) 3 SCC 379 = AIR 1983 SC 848 and referred to the following passage found in paragraph 10 of the said judgment, which is as follows:
10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.
In the present case, there was no promise by the competent authority of the school and the petitioner's appointment was made illegally by an incompetent person. Hence this decision has no application here.
22.According to the counsel for the petitioner the counter affidavit has been filed by a person who had no personal knowledge and his counter affidavit cannot be accepted. In this context, the learned counsel also relied upon the judgment of the Supreme Court in R.P. Kapur v. Pratap Singh Kairon reported in (1961) 2 SCR 143 = AIR 1961 SC 1117. He referred to the following passage found in paragraph 18 of the said judgment which is as follows:
18. ..... This is not a case where the refutation should have been left to Secretaries and other officers, who could only speak from the records and were not in a position to say why the Chief Minister passed certain orders. The petitioners are obviously suffering from a sense of grievance that they have not had a fair deal. We have held that there is no legal justification for that grievance; but in executive as well as judicial administration, justice must not only be done but it must appear that justice is being done. An affidavit from the Chief Minister would have cleared much of the doubt which in the absence of such an affidavit arose in this case."
23.But, in the present case, the Bishop is an over all head of the Diocese and also the head of the educational board. He can swear to an affidavit both from his personal knowledge as well as from the materials available from the official records. Therefore, it cannot be said that an incompetent person had sworn in an affidavit in this case.
24.As already held by this court, no approval can be asked for by the teacher appointed in a private school as she has no statutory right to demand such relief. If she has been validly appointed by the private school management and if she had worked pursuant to such appointment, she can claim salary from the private management and cannot demand salary from the Government from the grant in aid funds.
25.In the present case, even the communications produced by the petitioner shows that there was surplus requirement for a Malayalam Teacher and no prior approval for filling up the post was obtained. Even a minority educational institution, under Rule 15(1) of the Tamil Nadu Private Schools (Regulation) Rules, 1974, must obtain prior approval from the competent authority to fill up a post. There are two types of approval. First, it is the approval for filling up the post and the second is to get approval for the person who was appointed with reference to his qualification, mode of appointment etc. It is only for the second stage, a minority school management can have free play in joints. The first requirement is mandatory for all types of schools.
26.Though the learned counsel for the petitioner contended that the school is entitled for three secondary grade teachers for Malayalam medium, the Bishop who is the head of the agency himself had stated that there is no requirement for a Malayalam teacher due to lack of student patronage. Even in respect of a minority school, prior approval for the post before it is filled up has to be made as recently held by the Supreme Court in Kolawana Gram Vikas Kendra v. State of Gujarat reported in (2010) 1 SCC 133. In paragraphs 7 to 9, the Supreme Court observed as follows:
"7.In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly, whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter affidavit.
8.Para 3 of the said affidavit reads as under:
"Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed." From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also.
9.In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. ......" (Emphasis added)
Hence the contention that the petitioner was appointed against a pre-existing vacancy caused due to promotion of another teacher must fail.
27.In the backdrop of these facts, this court is convinced that the petitioner was not validly appointed. The Bishop had appointed a special Commissary as he was away and that Commissary cannot exceed his brief and act beyond his authorisation. The allegations and insinuation made against the Bishop are unwarranted and they were not substantiated with credible material. The petitioner had not established any enforceable right on her side.
28.Under these circumstances, the writ petition filed by the petitioner seeking for a direction to respondents to approve her appointment is misconceived. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
1.The Chief Educational Officer,
Nagercoil, Kanyakumari District.
2.The District Educational Officer,
Kuzhithurai,
at Marthandam,
Kanyakumari District-629 165
3.The Corporate Management Schools,
Kanyakumari Diocese, C.S.I.,
Nageroil, Kanyakumari District,
The Corporate Manager,
C.S.I. Kanyakumari Diocese,
Diocesan Office,
Nagercoil,
Kanyakumari District-629 001.
4.The Correspondent
RTM L.M.S. Higher Secondary School,
Venkanji, Kollemcode P.O.
Kanyakumari District.
5.The Headmaster,
RTM L.M.S. Higher Secondary School,
Venkanji, Kollemcode P.O.,
Kanyakumari District.
6.The Bishop,
Church of South India,
Kanyakumari Diocese,
C.S.I. Diocesan Office,
71-A, Dennis Street,
Nagercoil,