Partly allowed

The Secretary v. the State of Tamilnadu

Madras HC12 Feb 2013WP/30774/2012

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions filed by a school Secretary. One sought permission to fill a vacant post, the other challenged an order for direct salary payment. The Court allowed the second petition, citing natural justice violations, while disposing of the first by directing the Education Officer to fix the vacancy based on existing staff strength orders.

What did the court decide?

Set aside the order dated 27.11.2012 for direct payment of salaries and directed the Respondent to consider the proposal for filling the vacant post.

The Secretary Vs the State of Tamilnadu — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2013 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.30774 and 32049 of 2012 & M.P.Nos.1 of 2012

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The Secretary Sri G.R.M.Girls Higher Secondary School Thiruvarur Thiruvarur District 610 001

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.. Petitioner in both Writ Petitions

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Vs.

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The State of Tamil Nadu Rep.by its Secretary Department of School Education Fort St.George, Chennai-9.

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The Director of School Education College Road Chennai 6

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The Chief Educational Officer Durgalaya Road Thiruvarur Thiruvarur District 610 001

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The District Educational Officer South Main Street Thiruvarur Thiruvarur District 610 001

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.. Respondents in W.P.No.30774/2012

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The State of Tamil Nadu Rep.by its Secretary Department of School Education Fort St.George, Chennai-9.

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The Director of School Education College Road Chennai 6

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The Joint Director of School Education Higher Secondary College Road, Chennai 6

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https://hcservices.ecourts.gov.in/hcservices/

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The Chief Educational Officer Durgalaya Road Thiruvarur Thiruvarur District 610 001

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The District Educational Officer South Main Street Thiruvarur Thiruvarur District 610 001

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V.S.Parthiban

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.. Respondents in W.P.No.32049/2012

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Prayer in W.P.No.30774 of 2012: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the Chief Educational Officer, Thiruvarur, 3rd respondent herein to consider and pass orders forthwith on the proposal of the petitioner school dated 12.6.2012 and together with its reminders dated 25.9.2012 and 17.10.2012 seeking permission to fill up the post of Sewing Mistress which fell vacant on 1.6.2012 in the petitioner School.

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Prayer in W.P.No.32049 of 2012: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to impugned proceedings issued by the 5th respondent District Educational Officer Vide Na.Ka.No.7358/AA3/12 dated 27.11.2012 ordering direct payment of salary to staff of the petitioner school,and quash the same.

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For Petitioner in both Writ Petitions :: Mr.P.Godson Swaminath

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For Respondents in both Writ Petitions :: Mr.R.Govindasamy, A.G.P. Except R6 in

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WP.No.32049/2012

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COMMON ORDER

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These two Writ Petitions are filed by the Secretary of Sri G.R.M.Girls Higher Secondary School, Tiruvarur. These two Writ Petitions came to be posted on being specially ordered by the Hon'ble Acting Chief Justice vide order dated 8.2.2013.

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The first Writ Petition, namely W.P.No.30774 of 2012 was filed for a direction to the Chief Educational Officer, Thiruvarur to consider and pass orders on the proposal of the petitioner school dated 12.6.2012, together with its reminders dated 25.9.2012 and 17.10.2012 seeking permission to fill up the post of Sewing Mistress

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https://hcservices.ecourts.gov.in/hcservices/

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which fell vacant on 1.6.2012 in the petitioner School. In the Writ Petition, Notice of Motion was ordered on 20.11.2012.

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Pending that Writ Petition, it transpires the District Educational Officer, Thiruvarur by order dated 27.11.2012 ordered for direct payment of salaries to the staff and Teachers in the said School making several allegations against the management. Challenging the same, the Writ Petition No.32049 of 2012 came to be filed. That Writ Petition was admitted on 30.11.2012. Pending the Writ Petition, interim stay was granted on the direct payment system for a period of four weeks. Subsequently, the interim order was extended.

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In the first Writ Petition, the District Educational Officer, Thiruarur filed a counter affidavit dated 11.1.2013. In the second Writ Petition, the same Officer has filed a counter affidavit dated 12.12.2012. Insofar as the first Writ Petition is concerned, the stand of the management was that Sewing Mistress by name R.Suryakala reached the age of superannuation on 30.6.2011 and was reemployed till the end of the academic year, namely 31.5.2012 and she was relieved from the post. The post of Sewing Mistress is vacant from 1.6.2012.

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Thereafter, the management sent a representation seeking to fill up the said post. The Chief Educational Officer, Thiruvarur by his proceedings dated 30.10.2010 fixed the staff strength of the said School for the year 2010-2011 and the post of Sewing Mistress is shown as available both for the years 2009-2010 and 2010-2011. Notwithstanding the proposal and reminders sent by to them, the respondents have not passed any orders giving permission to fill up the post of Sewing Mistress. It is under the said circumstances, the Writ Petition No.30774 of 2012 came to be filed.

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In the counter affidavit, in paragraphs 6 and 7, the District Educational Officer, Thiruvarur had observed as follows:

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"6......With reference to the 3rd respondent's proceedings R.C.No.7876/B2/2011 dated 27.10.12, it is a compulsory document viz., the staff fixation order for the year 20112012 for seeking permission to fill up a vacancy. But even before such an order is issued, the petitioner has sent such a proposal without the above mentioned vital document. Hence, the petitioner is at fault by mentioning a document which he has not enclosed in his proposal and which he ought to have enclosed....

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7...... The petitioner in a hasty manner had sent the proposal without the staff fixation order of the year 2011-

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https://hcservices.ecourts.gov.in/hcservices/

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It is wrong to blame the respondents while the mistake lies on the petitioner."

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To controvert the said averment, Mr.P.Godson Swaminath, learned counsel appearing for the petitioner School management brought to the notice of this Court that for the academic year 20112012, the Chief Educational Officer, Thiruvarur has already fixed the staff strength in respect of High School, wherein the post of Sewing Mistress is made available as one post vacant. Therefore, the only objection raised by the District Educational Officer no longer survives. Therefore, the respondents are directed to consider the request of the petitioner management in the light of the staff strength fixed by the Chief Educational Officer, Thiruvarur vide order dated 27.10.2012 and pass orders within a period of three weeks from the date of receipt of a copy of this order and communicate the result to the management. Hence, Writ Petition No.30774 of 2012 is disposed of with the above observation.

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In W.P.No.32049 of 2012, resorting to direct payment of salaries, the respondents have stated in the counter affidavit that the management is in the habit of disobeying the orders of the Department as well as the order passed by this Court. Because of their carelessness, a School Teacher was unable to get her terminal benefits. However, it is unnecessary to go into the said details, since the main objection of the management was not on the question of lack of power but on the question of giving opportunity to the management before passing the order of direct payment.

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It is stated by them in paragraph No.19 that no notice and no opportunity of hearing was given to them before passing the impugned order. In paragraph No.19.E, they have stated that the tearing hurry in which the respondents ordering of direct payment without issuing notice to the petitioner shows the mala fide act on their part and therefore the order is invalid.

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In response to the allegations, the District Educational Officer in paragraph Nos.10, 15 and 17 of the counter affidavit had observed as follows:

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"10....Only in such circumstances, it is just and necessary to exercise power under Rule 19 and Annexure 111 (under Rule 2) Tamil Nadu Private School Regulation Rule 1974 to grant the salary directly to the staff. There is no necessary to give opportunity before passing such orders. Moreover, the petitioner should have made appeal to the Appellate authority and avail the remedy...

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https://hcservices.ecourts.gov.in/hcservices/

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15.... In such a serious situation immediate action is warranted for which no notice is necessary. ..

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17.... It is submitted that there is no civil consequences in the school because of the orders of the 5^th respondent."

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It is not clear as to how the District Educational Officer can take such a stand in the teeth of the judgment of this Court in The Management of Papanasam Labour Welfare Association Higher Secondary School, Vikramasingapuram Vs. The Chief Educational Officer, Tirunelveli reported in 1998 (III) CTC 753. This Court after analysing the power of the authority in ordering direct payment in terms of Rule 19 and Annexure III to Private Schools (Regulation) Rules, 1974 held that by ordering direct payment, the management is incapacitated to pay salary and such an order causes stigma on the management and the right of the management would be seriously affected and it has got civil consequences. Therefore, the principles of natural justice is applicable to such cases. The existence of such wide power is subject to inherent limitations and fairness in action is essential for exercise of such power and the power contemplates hearing before action is taken. If the Government passes orders without affording opportunity to explain circumstances, such order is invalid. In paragraphs 15 and 27 it was observed as follows:

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"15. When the Government says that it will pay the salary to the Teachers directly, that means that the Managementis now incapacitated to pay the salary or that there are special circumstances, which have made the Management. Naturally, the right of the employer in managing the School is seriously affected by such an action on the part of the Government. It has got civil consequences. Therefore, the principle of natural justice will have to be applied in such cases."

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"27. The argument that the petitioner was also aware of these complaints is not an answer for violating the principles of fairness. The Management is not expected to know that such and such instance is going to take place in future. The complaint must also be brought to the notice of the Management, and explanation must be taken and then only the Order ought to have been passed. The attitude of the third respondent seems to be vindictive and not in fairness. It is violative of the fundamental principles of natural justice. The third respondent has usurped the powers of the Management. Even the impleading respondents have not given that much details as given in the counter of the Department. That shows how the third respondent was taking a partisan attitude in his action. Even though the

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https://hcservices.ecourts.gov.in/hcservices/

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entire file was placed before me, I do not think that is going to improve the matter, once I hold that the action of the third respondent was act in good faith."

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It is unfortunate that the Educational Officer is who is bound by such orders, passed the impugned order without following the dictum laid down by this Court. They filed counter affidavit without adhering the law laid down by this Court. Such contention on their part is not expected. Hence, the Writ Petition No.32049 of 2012 is allowed on the ground that the petitioner management was not heard before passing the impugned order dated 27.11.2012 and the impugned order dated 27.11.2012 stands set aside. However, it is open to the official respondents to initiate process, if necessary, after complying with the principles of natural justice, as set out above. No costs. The connected Miscellaneous Petitions are closed.

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Sd/
Assistant Registrar
/True Copy/
Sub Assistant Registrar
ajr
To
1.The Secretary to Government
Government of Tamil Nadu
Department of School Education
Fort St.George, Chennai-9.
2. The Director of School Education
College Road
Chennai 6
3. The Chief Educational Officer
Durgalaya Road
Thiruvarur
Thiruvarur District 610 001
4. The District Educational Officer
South Main Street
Thiruvarur
Thiruvarur District 610 001