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Mr. Ramakrishna Mudali vs The Official Assignee Of Madras, ... on 9 February, 1922
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Mr. E.C. Kent vs Mrs. E.E.L. Kent on 27 March, 1925
Veerappa Pillai vs Raman & Raman Ltd. And Others on 17 March, 1952
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Madras High Court
The Tamil Evangelical Lutheran ... vs The Director Of School Education ... on 21 April, 2005

The Tamil Evangelical Lutheran Church Rep. By Its

Secretary, The Tamil Evangelical Lutheran Church Educational Board, Rep. By Its Chairman And The Elm Fabricious Higher Secondary School, Rep. By Its Correspondent vs The Director Of School Education (Hss), The District Educational Officer, Mr. J. Benjamin Premkumar And S. Inbaraj on 21/4/2005

JUDGMENT

Markandey Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned single Judge dated 16.9.2003.

2. We have perused the impugned judgment and the record, and have heard the arguments of the learned counsel for the parties.

3. The prayer in the writ petition was for a mandamus directing the respondents in the writ petition to allow the writ petitioner to function as Office Assistant in the respondent school (ELM Fabricious Higher Secondary School, Chennai), and to regularize his service from the date of his initial appointment with all backwages and service benefits.

4. The fifth respondent in the writ petition is an aided Higher Secondary school. The third and the fourth respondents The Tamil Evangelical Lutheran Church, (hereinafter referred to as 'TELC') and its Education Board manage the fifth respondent school, as well as several other schools in various districts in Tamil Nadu. The petitioner was appointed as Office Assistant in the fifth respondent school with effect from 29.7.1994.

5. It is alleged in paragraph-2 of the affidavit filed in support of the writ petition that the second respondent in the writ petition, the District Educational Officer, North Madras, Egmore, Chennai approved the writ petitioner's appointment by order dated 2.11.95 with effect from 01.06.1995. It is alleged that there was a dispute between the management, and one G. Dhanraj, Secretary of Tamil Evangelical Lutheran Church who filed writ petitions (W.P. Nos. 2380 to 2384 of 1995) before this Court for restraining respondents 1 and 2 from approving any appointment made by the then Correspondent of the school, as well as the Chairman of the TELC Educational Board. This Court granted interim injunction against the Educational Department restraining them from approving any appointment made by the then Correspondent. It is alleged that since the Educational Authority did not know about this interim order, they approved the appointment of teachers, as well as the petitioner herein. However, subsequently after knowing about the interim order of this Court, they cancelled the approval order by order dated 15.2.1996.

6. In paragraph-3 of the petitioner's affidavit it is alleged that there was a compromise between the rival groups and the management, and writ petitions (W.P. Nos. 2380 to 2384 of 1995) were withdrawn by the then Secretary of TELC. While dismissing the writ petitions as withdrawn, a learned single Judge of this Court passed the following order on 17.9.97: - " It is therefore clear that the petitioner management have invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India as a stop gap arrangement for settling their dispute and thus abused the process of this Court. Consequently, valuable rights and interest of innocent teachers working in the schools under the petitioner management were affected and they were into irreparable loss and hardship. Hence, while granting the permission to withdraw these writ petitions, I pass the following order: -

(i) Since these writ petitions are relating to the approval of the respective teachers, a direction is issued to the competent Educational Authority to go into the claims of respective teachers and pass appropriate orders within four weeks on their merits and seniority irrespective of the compromise said to have entered among the rival groups of the management and report the matter to this Court.

(ii) The petitioner shall pay a sum of Rs.1,000/- (Rupees one thousand only) to each contesting respondents (viz. Mr. A. Moses Thambi Pillai in W.P.2380 to 2384 of 1995, Ms. Alice Jayarani in W.P.No.23 30/95, Mrs. Jeevarathinam in W.P.No.2381/95, Mr. Kingstone in W.P.No.23 81/95, Mr. Samuel Theoplius in W.P.No.2381/95, Mr. V. Devadoss in W.P. No.2381/95, Ms. G. Kalavathisavithri in W.P.No.2381/9, Mr. S. Inbaraj in W.P.No.2381/95, Mrs. Lathavedakumari in W.P.No.2382 of 1995, Ms. Pita in W.P.No.2383/95, Mr. A. Ravi in W.P.No.2383/95, Ms. Vennila in W.P.No.238 4/95 and Ms. Margarat Thayagam in W.P.No.2384/95)

In the result the writ petitions are dismissed with costs as ordered above in each writ petition. Consequently WMP Nos. 3750 to 3754 of 1995 in W.P.Nos.2380 to 2384 of 1995 are also dismissed."

Consequent to the aforesaid order, the Educational Authority by order dated 28.10.1997 approved all the appointments which had been cancelled on 15.2.1996. Against the judgment of the learned single Judge in W.P.Nos.2380 to 2384 of 1995 dated 17.9.97, the TELC filed Writ Appeal No.1357 of 1997 challenging the conditions imposed by the learned single Judge while dismissing the writ petitions on 17.9.97 as withdrawn. The Division Bench allowed the writ appeal and set aside the aforesaid conditions in the order of the learned single Judge dated 15.1 2.97, which reads as follows: - " The only grievance made by the learned counsel for the appellant is that when the writ petition has been dismissed as withdrawn, the learned single Judge could not have issued the directions to the following effect: -

" Since these writ petitions are relating to the approval of the respective teachers, a direction is issued to the competent Educational Authority to go into the claims of the respective teachers and pass appropriate orders within four weeks on their merits and seniority irrespective of the compromise said to have been entered among the rival groups of the management and report the matter to this Court"

2. Learned counsel for the respondents contends that number of writ petitions were disposed of by a common order and only in one of the cases the directions issued which is now challenged. At this stage learned counsel for the respondents states that appeals have been preferred against all the judgments in which directions have been issued. Be that as it, there is no gain saying that the plaintiff has got absolute right to withdraw the writ petition. Once the writ petition is withdrawn it is only in case the Court takes a suo motu action on the information before it, no directions can be issued and it is the absolute right of the petitioner to withdraw the writ petition. No condition can be imposed unless the petitioner seeks any permission to to file a fresh writ petition or any other conditional withdrawal. Thus the direction issued cannot be sustained. The same is quashed.

3. The respondents 4 to 10, if they have got any independent right for any relief they will be at liberty to pursue the same in accordance with law. The observation made above would be take note of while disposing of the claim of respondents 4 to 10 in any proceedings in any other Court in accordance with law. The writ appeal is disposed of in the above terms. No costs. Consequently, C.M.P.No. 15097 of 1997 is dismissed."

7. It is alleged in paragraph-4 of the petitioner's affidavit that the Correspondent of the fifth respondent school stopped the writ petitioner from working from 01.06.1997, though without passing any termination order. Thereafter on 15.6.1998 the writ petitioner was again appointed as Office Assistant and a letter was sent to the District Educational Officer for approval of the appointment. The writ petitioner was allowed to work till 02.07.2001.

8. In the meantime, the 6th respondent in the writ petition namely G. Benjamin Premkumar filed writ petition No.12526 of 2000 in this Court for a mandamus directing the respondents to reinstate him as Office Assistant in the fifth respondent school and also give him service benefits from 15.12.1997.

9. A counter affidavit has been filed by the 6th respondent Benjamin Premkumar. In paragraph 4 of the counter affidavit it is stated that there were several disputes between the two factions relating to the composition of the Church Council of TELC. One faction was headed by G. Dhanraj and another by Moses Thambipillai. G. Dhanraj filed writ petition No.2381 of 1995 in this Court challenging the appointments made by the said Thambipillai. In the said writ petition an interim order was passed restraining the authorities from approving the appointments of teachers made by either of the groups. Despite the interim order, Moses Thambipillai approached the second respondent for approving the appointment and the appointments were approved. Aggrieved by the same, Dhanraj preferred a contempt application and as soon as the notice was issued, the second respondent cancelled the appointment of 6 teachers.

10. In paragraph-5 of the counter affidavit, it is alleged that in the proceedings before the Civil Court, a compromise was entered into between the two factions and elections to the Church Council were held in May 1997. In that election, the group headed by G. Dhanraj was elected to the Church Council. The deponent Benjamin Premkumar has alleged that he was reappointed to the fifth respondent school by the validly constituted Church Council as Office Assistant with effect from 3 1.5.97, and since then he has been functioning as Office Assistant. Alongwith Benjamin Premkumar five other teachers had also been appointed and the second respondent granted approval to the same by order dated 12.6.98. The appointment of Benjamin Premkumar was approved with effect from 15.12.97.

11. In paragraph-6 of the counter affidavit it is alleged that in the last week of May 1998 the elections to the Church Council took place at Trichy. In the election Moses Thambi Pillai and seven others had been elected as Church Council Members and Moses Thambi Pillai was elected as the Secretary of the Church Council, Chairman, Education Board and Correspondent, E.L.M. Fabricious Higher Secondary School, Purusawalkam, Chennai.

12. It is alleged in paragraph 7 of the counter affidavit that Mr. A. Sathya Dass was transferred as Headmaster of the fifth respondent school. It is alleged that he did not permit the deponent (Benjamin Premkumar) and four others whose appointments were duly approved on 12.6.9 8 from discharging their duties. It is alleged that Benjamin Premkumar and others met Moses Thambipillai, but to no avail. Hence he had to file Writ Petition No.12526 of 2000 in this Court.

13. In paragraph-8 of the counter affidavit it is alleged by the sixth respondent that since the appointments of Benjamin Premkumar and others had been duly approved by the authorities, the school management had no power to restrain them from functioning as teachers.

14. One Mrs. Suseela Prema Rathina Bai filed writ petitions challenging the action of the respondents in interfering with their functioning as teachers. The learned single Judge by common order dated 10.12.99 in W.P.Nos.9853 of 1998, 5448 and 6108 of 1999 held that the appointments made on 31.5.97 were by a validly constituted management and that the approval dated 12.6.1998 was valid and binding upon the management. Pursuant to the said order, the four teachers, who had been appointed alongwith Benjamin Premkumar, and whose appointments were approved on 12.6.98, were permitted to rejoin duty. Writ Appeal Nos.109 to 111 of 2000 were filed by the Management, but were subsequently withdrawn on 29.11.2001. Benjamin Premkumar also filed W.P.No.12256 of 2 000 stating that he was also entitled to reinstatement as Office Assistant in the fifth respondent school. However since the order of approval dated 12.6.98 had to be given effect to, in view of the judgment of this Court dated 10.12.99, the School Management permitted Benjamin Premkumar to rejoin duty with effect from 2.7.2001, and hence he withdrew his writ petition, as it had become infructuous.

15. In paragraph-9 of the counter affidavit it is alleged that the second respondent by order dated 12.6.2002 had allowed the deponent to rejoin duty as Office Assistant in the fifth respondent school with effect from 2.7.2001 in the vacancy caused by V. Ayyappan. Hence, the petitioner was not entitled to be regularized in the vacancy caused by V. Ayyappan since the deponent's appointment on the said post had been approved by the competent authority, and there was no other vacancy.

16. On the facts of the case, we are of the opinion that this writ appeal deserves to be allowed. The learned single Judge by his judgment dated 16.9.2003 directed respondents 3 and 4 in the writ petition, who are appellants 1 and 2 in this appeal, to continue the services of the writ petitioner either in the present school or any other school if there is any vacancy in any approved post. The learned single Judge also directed that necessary recommendation shall be made by the management to the Government for approval, and the Government should accord approval within a period of six weeks from the date of receipt of such request from the management. If there is no such approved vacancy, the petitioner must be continued either in the present school or in any other school at the discretion of the management, but the salary must be paid by the management till the appointment is approved by the Government against any approved vacancy. In our opinion, these directions by the learned single Judge in the impugned judgment were wholly unjustified, invalid, and cannot be sustained, as they practically amount to usurpation by this Court of the functions of the authorities.

17. It has been held by the learned single Judge in paragraph-5 of his judgment that the cancellation of the approval of the petitioner's appointment alongwith five others by the District Educational Officer by order dated 15.2.1996 had not been challenged and fresh appointment order was issued to the petitioner on 15.6.1998. The order dated 1 5.2.1996 of the District Educational Officer, Madras North, Chennai to the Correspondent, E.L.M. Fabricious Higher Secondary School, Purusawalkam, Chennai states: -

" R.C.No.1292 A3/96 Dated: 15.2.96 Sir, Sub: Appointments of (1). Mr. Kingstone, P.G.Asst., (2). Mr. Samuel Theophilus, P.E.T (3) Mr. S. Inbaraj, Office Assistant,(4) Mrs. C. Kalavathi Savithiri, Tamil Pandit, (5) Mrs. M. Jeevarathinam, P.G. Asst. (6) Mr. V. Devadoss, Craft Inspector of E.L.M.Fabricious Higher Secondary School, Madras - 7 - Cancellation orders issued - regarding.

Ref: This office Mu.Mu.Nos.6625/95, 6623/95, 9971/95, 6624/95, A3/9 5 dt.2.11.95, 2499/94 dt.3.4.95 and 2502/94 dt.28.8.95. 2. WMP Nos.3750 to 3754 of 1995 in W.P.Nos.2380 to 2384/95 respectively, High Court, Madras 3. Contempt Application No.32 of 96 in the High Court of Judicature, Madras.

In the reference 1st cited the following four appointments were approved by the District Educational Officer, North Madras on 2.11.95 and the remaining 2 appointments were approved on 3.4.95 and 28.3.95 respectively, without knowing the Court order dated 17.2.95, W.M.P.Nos.3 750 to 3754 of 95 in W.P.Nos.2380 to 2384/95 cited in reference 2, restraining the District Educational Officer, North Madras from approving the 6 appointments.

1.Mr. M. Kingstone, P.G. Asst., 2. Mr. Samuel Theophilus, P.E.T 3. Mr. S. Inbaraj, Office Assistant 4. Mrs. C. Kalavathy Savithiri, Tamil Pandit, 5. Mr. M. Jeevarathinam, P.G. Asst. 6. Mr. V. Devadoss, Craft Instructor

Since the above Court orders received on 15.2.96, the above 6 appointments already approved by the District Educational Officer on 2.11.95 , 3.4.95 and 28.3.95 are hereby cancelled. The teaching grant issued so far on their behalf should be recovered immediately.

T.BALASUBRAMANIAN, District Educational Officer, Madras North."

18. A perusal of the said order dated 15.2.96 shows that the appointment of the petitioners and five others were cancelled, because they were made in ignorance of the High Court's order restraining the District Educational Officer from approving six appointments. In the meanwhile, respondent No.6 in the writ petition, namely, Benjamin Premkumar had been appointed as Office Assistant by the Church Council with effect from 31.5.97 and he had been functioning as Office Assistant since then. His appointment was approved by order dated 12.6.98. The writ petitioner S. Inbaraj has not challenged the appointment or approval of respondent no.6 Benjamin Premkumar. Without challenging the appointment or approval of the sixth respondent we cannot see how the writ petitioner S.Inbaraj can claim himself to be appointed as Office Assistant since there is no other vacancy other than that which is presently occupied by Benjamin Premkumar.

19. Since Benjamin Premkumar had been appointed on 31.5.97 we are at a loss to understand how the writ petitioner could have been appointed on 15.6.98 when there is no other vancancy of Office Assistant in the school. The appointment of Benjamin Premkumar was with effect from 31.5.97 which was prior to the appointment of the writ petitioner, although there was only one post vacant.

20. It may be mentioned that in Writ Petition Nos. 9853/98, 5448 & 61 08/99 decided by this Court on 10.12.1999 the petitioners therein were appointed as Teachers in the respondent school by order dated 31.5.97 and the appointment was approved by the Government by order dated 12.6.98. They claimed that the management had no right to stop them from doing their duty. They further claimed that a mandamus be issued against the respondent directing them to permit the petitioners to function as teachers. The said claim was opposed by the Management and the school on various grounds. This Court allowed the writ petition and held that the approval order dated 12.6.98 was valid and appointments of the writ petitioners on 31.5.97 and subsequent approval by the Government on 12.6.98 were valid, and the petitioners have a clear right to continue to work as teachers.

21. Although Benjamin Premkumar was not a party in the above writ petitions, but the facts of that case are identical to the facts of the case on hand. The date of appointment of Benjamin Premkumar and consequent approval by the Government are the same as that of the petitioners in the above writ petitions, and hence the reasoning in the aforesaid decision applies to the case of Benjamin Premkumar also. In fact the authorities implicitly accepted this as they re-appointed Benjamin Premkumar, who then withdrew his petition as infructuous.

22. Since the appointment of Benjamin Premkumar had not been challenged, and since there is no other vacancy for the post of Office Assistant, we cannot see how the learned single Judge could have given a direction in the impugned judgment that the writ petitioner should be allowed to continue to function as Office Assistant, particularly when there is no vacancy.

23. We also fail to understand as to how the learned single Judge could have directed the Government to grant approval to the writ petitioner's appointment. Whether to grant approval or not is for the authorities concerned to decide and this Court cannot arrogate to itself the powers of the authorities. The Court must maintain restraint in such matters. In N.A. Thangavelu v. The State Transport Appellate Tribunal, Chennai,(2005) 1 M.L.J 430 this Court held that the Court cannot take over the functions of the executive.

24. In G. Veerappa Pillai v. Raman and Raman Limited, , the Supreme Court observed that the High Court

cannot direct the Regional Transport Authority to grant permits, as the discretion to grant permits or not was entirely with the Regional Transport Authority. A similar view was taken in Union of India v. S. B.Vohra, and State of U.P. v. Section Officer

Brotherhood, .

25. In P.U. Joshi v. Accountant General, the Supreme Court observed: - " We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation, abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertaining to the field of policy are within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State."

26. Thus, it is well settled that the High Court cannot direct creation of posts. Creation of posts is an Executive function, and it is not proper for the High Court to give the direction, such as the one given by the learned single Judge.

27. We are of the opinion that the learned single Judge should not have directed the Government to accord approval to the writ petitioner's appointment. It is entirely in the discretion of the Government to grant approval or not, though of course on relevant considerations. Moreover, if there is no vacancy, there is no question of granting approval, as approval can only be granted in respect of a vacant post.

28. In our opinion, the learned single Judge was not justified in directing, even though there is no approved vacancy, that the petitioner must be continued in service. We fail to understand how such a direction could be given in writ jurisdiction. With due respect to the learned single Judge, judicial restraint has not been shown in the impugned judgment. The judiciary must not encroach into the domain of the legislature or executive, as a Division Bench of this Court in Rama. Muthuramalingam v. Dy. Superintendent of Police, has emphasized, but that is precisely what the

learned single Judge has done. Hence his judgment cannot be sustained.

29. For the reasons given above, this writ appeal is allowed. The impugned judgment of the learned single Judge is set aside. No costs. Consequently, W.A.M.Ps are closed.