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Article 309 in The Constitution Of India 1949
V. Krishnaveni vs Director Of Elementary Education on 14 June, 2002

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Madras High Court
The Joint Director Of School ... vs K.Rajalakshmi on 23 October, 2008

In the High Court of Judicature at Madras

Dated: 23.10.2008

Coram:

The Honourable Mr.Justice S.J.Mukhopadhaya

and

The Honourable Mr.Justice V.Dhanapalan

Writ Appeal No.740 of 2006

& M.P.No.1 of 2006

1. The Joint Director of School Education,

(Higher Secondary)

College Road, Nungambakkam, Chennai.

2. The Chief Educational Officer, Namakkal District.

3. The District Educational Officer, Namakkal District. .. Appellants

vs.

1. K.Rajalakshmi

2. Sankar Higher Secondary School,

Sankari West, Namakkal District. .. Respondents

Writ Appeal against the order dated 22.2.2006 passed by the single Judge of this Court, in Writ Petition No.29256 of 2005.

For appellants : Mr.G.Masilamani, Advocate General,

assisted by Mr.S.Rajasekar, Addl.G.P

For respondent-1 : Mr.M.Santhananarayanan

For respondent-2 : No appearance

Judgment

(The Judgment of the Court was delivered by S.J.Mukhopadhaya,J)

This Writ Appeal has been preferred by the Joint Director of School Education (Higher Secondary), Chennai [first appellant], the Chief Educational Officer, Namakkal District (second appellant) and the District Educational Officer, Namakkal District (third appellant), against the order dated 22.2.2006 passed by the learned single Judge in writ petition No. 29256 of 2005, in and by which, the learned single Judge, while treating first respondent-writ petitioner (K.Rajalakshmi) as a qualified Teacher of the second respondent-Sankar Higher Secondary School, Sankari West, Namakkal District, also set aside the order dated 9.2.2005 passed by the first appellant-Joint Director of School Education and further directed the first appellant-Joint Director of School Education, to promote the first respondent-writ petitioner as a Post-Graduate Assistant for Commerce in the existing post, within six weeks from the date of receipt of a copy of the order.

2. The main plea taken by the appellants-state is that the post of Vocational Instructor is not the feeder category (post) for promotion to the post of P.G. Assistant [Teacher] and the first respondent-writ petitioner, who was a Vocational Instructor, being not eligible, her case was rightly rejected by the authorities of the appellants-State.

3. It appears that the first respondent-writ petitioner was appointed on 1.7.1987 in the second respondent-Sankar Higher Secondary School, Sarkari West, Namakkal District], which is a Government aided Private School, as a Part-time Vocational Instructor in the fixed monthly pay of Rs.700/-, which was approved by the Chief Education Officer, Salem, by order dated 8.8.1987.

4. According to the first respondent-writ petitioner, after creation of 1387 posts of Vocational Instructors in the regular time scale of pay of Rs.1400-2600 for various Government and Aided Private Schools, the first respondent-writ petitioner was made a Full Time Vocational Instructor, vide proceedings in Rc.No.31463/D3/94, dated 4.1.1996 passed by the Chief Education Officer, Salem.

5. It is the further case of the first respondent-writ petitioner that the post of P.G. Teacher for Commerce in the second respondent-school, fell vacant on 13.9.1999, because of death of a teacher, when the second respondent-School made a request to the second and third appellants herein, to allow the second respondent-School authorities to fill up the vacancies from amongst the existing Full Time Vocational Teachers, by way of promotion, the second and third appellants rejected the said request of the second respondent-School, stating that the Vocational Instructors cannot be promoted as a regular Teacher without regularising their services.

6. At that stage, the first respondent-writ petitioner filed Writ Petition No.33887 of 2003, wherein this court, by order dated 2.9.2004, directed the writ petitioner-K.Rajalakshmi, to file a detailed representation to the first appellant herein, with a further direction to the first appellant herein to decide the said representation after hearing the writ petitioner, in accordance with law. Thereafter, the first appellant-Joint Director of School Education (Higher Secondary Education), vide proceedings in K.DiS.No.58418/WII/W6/2004, dated on 9.2.2005 (signed on 22.2.2005), while rejecting the claim of the writ petitioner for promotion, observed that she is however eligible to be appointed in the post of P.G. Assistant as a fresh appointee, English Translation of which is shown hereunder : " ......

On perusal it is learnt that Tmt.K.Rajalakshmi, the vocational Instructor is the senior most among the qualified teachers and the Secretary of the school agreed to surrender the post of vocational Instructor if she is promoted. In aided school there is no condition that the services of he teachers should be regularized for purpose of promotion and the Appellant {Tmt.K.Rajalakshmi} is considered as probationer from 23.09.96, since she has been brought to regular service as per G.O.Ms.No.834 dated 23.9.94. But the abovementioned teacher has not got the feeder category for the commerce Post Graduate Assistant. Since, there is no qualified teacher in the feeder category for the post of commerce Post Graduate Assistant in Sankar Higher Secondary School, and as per Rule 15(4)(ii) of Tamilnadu Recognized Private Schools {Regulation} Rules 1974, Tmt.K.Rajalakshmi is only a qualified teacher for the post of commerce Post Graduate Assistant, it is considered that she is eligible for appointment. Such appointment cannot be considered as promotion. She cannot get the benefit of promotion. Therefore Tmt.K.Rajalakshmi is eligible to be appointed in the post of commerce P.G.Assistant considering that is a new appointment."

7. Against the aforesaid order of the first appellant-Joint Director of School Education, dated 9.2.2005, the first respondent-writ petitioner, preferred an appeal, which having been sustained by the appellate authority-Director of School Education, Chennai, vide proceedings dated 10.8.2005, the writ petition in question, i.e. Writ Petition No.29256 of 2005 was preferred.

8. Learned Advocate General, assisted by learned Additional Government Pleader, appearing for the appellants-State, while referring to Rule 15(4) of the Tamil Nadu Recognised Private Schools {Regulation} Rules, 1974, also submitted that since the post of Vocational Instructor is not a feeder category, the case of the first respondent-writ petitioner would not have been considered for promotion to the post of P.G. Assistant {Teacher}.

9. On the other hand, according to learned counsel appearing for the first respondent-writ petitioner, the Vocational Instructors are also Teachers and thereby, they are also eligible for promotion to the higher post of P.G. Assistant {Teacher}. Learned counsel appearing for the first respondent-writ petitioner relied on a decision of this Court in the case of P.Krishnaveni vs. The Director of School Education {Higher Secondary} and 3 others in Writ Petition No.4785 of 2008, which was filed for a direction to the respondents therein to appoint the petitioner-P.Krishnaveni as a P.G. Assistant in Economics by promotion in the existing vacancy of the School (fourth respondent therein), with effect from 31.05.2007 and learned single Judge of this Court disposed of Writ Petition No.4785 of 2008 on 31.3.2008, relevant portion of which is extracted hereunder:- "3. The Learned Counsel for the petitioner submitted that as per Rule 15(4) of the Tamil Nadu Private School (Government aided) Regulation Act, 1974 promotions are to be made in aided schools, firstly from among the qualified candidates working in the school and if no teacher working in that school is found suitable then only direct recruitment could be resorted to. Nowhere in the Tamil Nadu Private School (Government aided) Regulation Act, the feeder category for the post of Post Graduate Assistant is prescribed. Admittedly, the petitioner is working as a Teacher namely Vocational Instructor from 01.06.1989. According to the petitioner she is qualified for being promoted as Post Graduate Assistant Economics.

4. In the light of the statutory provisions namely Rule 15(4) of the Tamil Nadu Private School (Government aided) Regulation Rules, 1974 which is the only rule applicable for promotion to various posts in private aided schools, the petitioners claim is bound to be considered, before the fourth respondent is seeking permission to fill up the post by direct recruitment. On the basis of the above statutory provisions the impugned order is set aside with a direction to the fourth respondent to consider the claim of the petitioner seeking promotion as Post Graduate Assistant Economics and after considering her claim, if the petitioner is found not suitable then only the direct recruitment procedures could be contemplated.

5. Hence, the writ petition is partly allowed, with the above direction. No costs. Consequently, connected Miscellaneous Petition is closed."

Learned counsel appearing for the first respondent-writ petitioner relied on the Rules, which came into effect from 23.9.1994, which were framed by the Government in exercise of the powers conferred under proviso to Article 309 of the Constitution of India, as evident from G.O.Ms.No.6, School Education (VE) Department, dated 4.1.2000. The General and Special Rules applicable to the holders of permanent posts in Tamil Nadu School Education Subordinate Service, shall apply to the holders of the temporary posts of Vocational Instructors sanctioned from time to time in the Higher Secondary Schools for Home Science, for Commerce and Business, Agriculture, Engineering and Technology, Health and Photography and Music, subject to the modification specified in the Rules specified in the said G.O.Ms.No.6, dated 4.1.2000. Learned counsel appearing for the first respondent-writ petitioner also submitted that as per the abovesaid G.O.Ms.No.6, dated 4.1.2000, the Vocational Instructors are also guided by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, and thereby, they are also entitled for consideration of their case for promotion to the post of a Teacher.

10. Learned Advocate General, assisted by learned Additional Government Pleader, appearing for the appellants-State, submitted that 1,387 posts of Vocational Instructors were created in Higher Secondary Schools, vide G.O.Ms.No.834, dated 23.9.1994 issued from the Education, Science and Technology (HS.II) Department. According to the learned Advocate General, those posts were created for the Government Schools or where the posts are sanctioned by the State government and those who are holding the posts in the Schools aided by the State Government, they are only entitled to receive the regular scale of pay. So far as the Rules framed under proviso to Article 309 of the constitution of India, vide G.O.Ms.No.6, School Education (VE) Department, dated 4.1.2000, are concerned, it is submitted by the learned Advocate General that the said Rules have been framed for temporary posts of Vocational Instructors sanctioned from time to time under the State Government. It is further submitted by the learned Advocate General that though the said Rules framed by the Government, as seen from the said G.O.Ms.No.6, dated 4.1.2000, are not directly applicable, the guidelines laid down under the same are followed for the posts of Vocational Instructors in Private Aided Government Schools also, where the said post of Vocational Instructors are also sanctioned by the State Government.

11. We have heard the learned counsel appearing for the parties and noticed their rival contentions.

12. It will be evident that the Tamil Nadu Recognised Private Schools {Regulation} Rules, 1974 {for short, the Rules} were framed by the Government, in exercise of the powers conferred by section 56 of the Tamil Nadu Recognised Private Schools {Regulation} Act , 1973 [Tamil Nadu Act 29 of 1974] and the said Rules came into force on 1.12.1974 [vide G.O.Ms.No.1966, Education Department, dated 29.11.1974]. At that time, the post of Vocational Instructor was not in existence. The Teacher has been defined under Rule 2{c} of the Rules to include only the post of Headmaster. The post of Teacher does not include any other teaching posts, such as Demonstrator, Vocational Instructor, Lecturer, Professor, etc.

13. Admittedly, the post of Part Time Vocational Instructor was created for the first time, on 14.9.1978 and provided with regular scale of pay, on 23.9.1994 {vide G.O.Ms.No.834, Education, Science and Technology (HS.II) Department} and therefore, it cannot be presumed that the post of Teacher as defined under Rule 2{c} of the Rules, includes the post of Vocational Instructor also, which post was created subsequently.

14. While Rule 15 the Rules stipulates "Qualifications, Conditions of service of Teachers and other persons", Clause{4} to Rule 15 stipulates the manner in which the promotion and appointments be made, including the methods of appointments to various categories of Teachers, as quoted hereunder:

15. Qualifications, conditions of service of teachers and other persons:-

....

{4} {i} Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.

{ii} Appointments to the various categories of teachers shall be made by the following methods:-

(i) Promotion from among the qualified teachers in that school.

(ii) If no qualified and suitable candidate is available by method (i) above,--

(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers;

(b) Appointment of teachers from any other school;

(c) Direct recruitment.

In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers Training Institutions setting out the reason for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule. ..... "

15. From a bare reading of Rule 15(4)(ii) of the Rules, it would be evident that the promotion to various categories of Teachers, shall be made from among the qualified Teachers in that School, if available. That means, the promotion shall be made from those who are actually working against the post of Teacher as defined under Rule 2(c) of the Rules and not to any other post, such as Vocational Instructor. For other persons employed in that School and otherwise qualified to hold the post of Teachers, there is a specific provision made under Rule 15(4)(ii)(ii)(a),(b) & (c) of the Rules as quoted above. If no qualified and suitable candidate is available by the method stipulated under Rule 15(4)(i) (supra) for promotion to the category of Teachers, it is always open for the School authorities to appoint such other person{s} employed in that School, including the post of Vocational Instructor" to the higher teaching post, provided they are fully qualified to hold the post of "Teachers".

16. From the order dated 31.3.2008 passed in writ Petition No.4785 of 2008, it would be evident that the Court presumed that the Vocational Instructor is a "Teacher" and thereby this Court gave certain directions. On a similar presumption, the learned single Judge in the Writ Petition in question, i.e. Writ Petition No.29256 of 2005 appears to have passed the impugned order dated 22.2.2006.

17. As we are of the opinion that the post of Teacher as defined under Rule 2{c} of the Rules, does not include the post of Vocational Instructor, which post has been created only in 1978 [vide G.O.Ms.No.1719, issued from the Education Department, dated 14.9.1978] and no other amendment to that effect having been made in the Rules, 1974, we hold that the first respondent-writ petitioner, who is a Vocational Instructor, is not eligible for promotion to the post of a P. G. Assistant, though in the absence of an eligible Teacher, the first respondent-writ petitioner and others may be qualified and eligible for fresh appointment to the post of P. G. Assistant under Rule 15(4)(ii)(ii)(a) of the Rules, if they are otherwise eligible.

18. In view of our findings as recorded above, we set aside the impugned order dated 22.2.2006 passed by he learned single Judge in writ petition No.29256 of 2005.

We give liberty to the second respondent-Sankar Higher Secondary School, to fill up the post of P.G. Assistant in accordance with law and in the absence of eligible and qualified Teacher{s} for promotion, it will be open for the appellants-State and the second respondent-Sankar Higher Secondary School, to fill up the post of Teacher-P.G. Assistant by appointment from other eligible and qualified persons under Rule 15(4)(ii)(ii)(a) of the Rules.

19. The writ Appeal stands allowed with the aforesaid observations/directions.

No costs. M.P.No.1 of 2006 is closed.

cs

To

1. The Joint Director of School Education,

(Higher Secondary)

College Road, Nungambakkam, Chennai.

2. The Chief Educational Officer, Namakkal District.

3. The District Educational Officer, Namakkal District.

4. Sankar Higher Secondary School,

Sankari West,

Namakkal District