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Judgment
V.S. Sirpurkar, J.—W.P. 7512 of 1993: This writ petition is filed by an unfortunate teacher, who has been unceremoniously dismissed by
the School Correspondent, fourth Respondent herein. The school claims to be a ""minority institution"" being that of linguistic minority group of
Malayalam speaking people. Short facts which would have to be appreciated are as follows:
Petitioner was appointed in the concerned school as ""Double Part-time Vocational Instructor"", with effect from 1.4.1990. By G.O. Ms. No.
712 (Education) dated 28.5.1990, such persons who were working as Part-time Vocational Instructors were regularised. In pursuance of '' that
Government Order, the Chief Educational Officer, Nagercoil passed an order in Na. Ka. No. 3143/HSB/4/91 dated 18.2.1991 and in pursuance
of that order, a further order came to be passed by the fourth Respondent on 14.3.1991 for the regular appointment of the Petitioner. Paragraph 3
of this order suggests though Thiru S. Chinnappoo is appointed as full time instructor, his appointment would be regularised as per rules to be
framed by the Government for the above post. His appointment would be decided only on the basis of the above regularisation. By order dated
21.3.1991, the Chief Educational Officer, Nagercoil, approved the appointment of the Petitioner, which was made on 1.4.1990. It was for the first
time, however, on 7.12.1992, that the Correspondent sought explanation from the teacher that he was found smoking in the Teachers'' room sitting
adjacent to the window. It seems that the teacher gave a reply on 14.12.1992 that the charges were wholly untrue and that he was working to the
full satisfaction. It seems thereafter the teacher was on medical leave and after finishing his medical leave on 1.2.1993, when he approached the
Head Master of the school for joining the duty, he was told that without the permission of the Correspondent of the school, he could not be
allowed to sign the attendance register. Ultimately, an order came to be passed on 23.2.1993 whereby, the Petitioner was removed from the
service. This time, the reason given was that the Petitioner was suffering from Tuberculosis. It was also stated in the order that he was working
against the interests of the Management. The Petitioner, thereafter, pointed out that even the Medical Board has declared him fit to join the duty by
communication dated 24.2.1993. It seems that even the District Education Officer had directed the school Correspondent by his communication
Na. Ka. No. 1959 1/93, dated 1.3.1993, that the appointment of the Petitioner as Full Time Vocational Instructor from 1.4.1990 was approved
by the District Educational Officer, Nagercoil and the post was specially sanctioned for the said teacher. It was also pointed out in the letter that
the Petitioner had submitted the medical report. However, it was seen that the Petitioner was removed from service by the Correspondent by
order dated 24.2.1993, with effect from 1.2.1993. The Correspondent was, therefore, directed to permit the Petitioner to join duty. All this fell on
the deaf-ears of the fourth Respondent Correspondent. The Petitioner then filed an appeal before the Director of School Education. But that
appeal was not entertained probably because the institution was a ""minority institution"". It is because of that ultimately the Petitioner is driven before
this Court by way of this writ petition.
The learned senior counsel, Mr. K. Chandru, appearing for the Petitioner brought to my notice that firstly there was absolutely no enquiry made
against the Petitioner and secondly, his services were terminated on patently incorrect and false pretexts. It is pointed out that the Petitioner was
working in the school right from 1990 and he was working as a Full-time Vocational Instructor. It is also further pointed out that his appointment
was approved and under such circumstances, he could not have simply been thrown out of employment by an arbitrary order. It is also pointed
that even the education authorities of the Government had taken a stance that the exercise of removal was patently incorrect.
As against this, the learned senior counsel, Mr. Chinnasamy, appearing for the fourth Respondent school, contended that the appointment of the
Petitioner was purely of a temporary nature and actually when the termination order was passed, the Petitioner was not a confirmed employee. The
learned Counsel further says that it was not necessary for the Management to hold any enquiry as the appointment was of a temporary nature.
It is to be seen whether the removal of the Petitioner was justified at all.
The very look of the orders passed by the Correspondent raises the doubt about the correctness and the fairness of the orders passed. In one
communication, the Correspondent says that the Petitioner was found smoking in the Teacher''s room as if smoking in the school was such a grave
offence so as to cost the service to the Petitioner. This is apart from the fact that even the fact of his smoking in the school has not been proved in
any enquiry. Perhaps, finding this reason to be too flimsy, the Correspondent goes on then to allege that the Petitioner was a Tuberculosis patient
without referring him to the Medical Board. However, it is on record that the Petitioner was cleared by the Medical Board and was declared to be
fit to resume his normal duties and continue as a teacher in the school as his ailment was not a infective nature. Therefore, even that reason does
not appear to be of any consequence. It is only generally said in the termination order that his behaviour was not proper. Therefore, it is obvious
that the termination order is by way of a ""punishment''. It is trite law that such an order could not be passed unless there was an enquiry made and
the charges against the delinquent were proved only after giving him the opportunity of being heard. Nothing of the sort seems to have been done.
On the other hand, it is clear that the Correspondent then went on to appoint someone else. The Department naturally refused to accord
sanction to the new appointment and the school, in W.P. No. 14848 of 1996, has come up before this Court seeking the Writ against the
Education Authorities directing them to accord approval to the post. All this only goes to show that the Correspondent had only one idea in the
mind that is, anyhow to remove the Petitioner and to put in some other person in his place. The facts do speak for themselves. But, we are not on
that. We are testing the correctness or otherwise of the action of the Correspondent in removing the Petitioner.
Mr. Chinnasamy, learned senior counsel for the fourth Respondent relied on the judgment of a learned single Judge of this Court, reported in
19901 MLJ 284 (D. Ethiraj v. State of Tamil Nadu) as also the Division Bench judgment reported in 1991 WLR 501 (Paulraj v. District
Educational Officer and Ors.) to oppose the claim of the Petitioner. In Ethiraj case, cited supra M. Srinivasan, J. (as His Lordship then was) has
discussed the question on the applicability of Rule 15 to the minority institutions. In this judgment, His Lordship was required to decide a question
as to whether an appeal filed by a teacher working in the minority institution under Rule 15(4A) of the Tamil Nadu Recognised Private Schools
(Regulation) Rules, hereinafter referred to as ""the Rules"", was maintainable. The learned Judge has restricted himself only to that question, which
will be clear from the observations made in paragraph 7, which are to the following effect:
The larger question which was argued at length was that the provisions of Section 19 of the Act and Rule 15 of the Rules are validly applicable to
Minority Institutions and the view taken by the second Respondent is erroneous. I do not think it necessary to decide that question in view of the
clear language of Rule 15 of the Rules. Hence, I propose to confine my discussion to the maintainability of the appeal preferred by the Petitioner to
the second Respondent within the shorter compass dependent on the express terms of the rule.
(emphasis supplied).
The learned Judge has thereafter proceeded to refer to the celebrated judgment of the Division Bench in N. Sampathu Vs. The Chief Educational
Officer, Vellore and Others, and has actually held that the learned Judge was bound by that judgment. However, the learned Judge proceeded to
hold that where an appointment of a teacher was not made by the School Committee as contemplated under Rule 15, the said teacher could not
file an appeal contemplated under Rule 15(4A) of the rules. In fact, the judgment, on which the learned senior counsel relies, is totally inapplicable
to the facts of this case. In that view, the judgment cannot be said to be of any help to the fourth Respondent.
On the other hand, the learned senior counsel for the Petitioner says that the judgment in Sampathu case, cited supra, as well as the judgment in
M. Dinakaran v. Director of School Education 1993 (3) LLN 343, to which I was a party, cover the issue. This is besides the fact that in the
pleadings it is nowhere pleaded that the appointment of the Petitioner was not made by the School Committee.
There cannot be any justification for the unceremonious removal of the Petitioner from service without giving him any opportunity and without
holding any enquiry against him. The order of removal from service has to be set aside and the fourth Respondent will have to be directed to
reinstate the Petitioner with all backwages and other attendant benefits. W.P. No. 7512 of 1993 is allowed in the above terms. No costs.
W.P. No. 14848 of 1996: As has already been made clear earlier, this writ petition is by the Correspondent of the School wherein the
Correspondent has sought a Writ of Mandamus, directing the Educational Authorities to accord approval to the appointment of one P. Jabashakila
as the Double Part-time Vocational Instructor in a ""sanctioned post"" in the Petitioner-school within a reasonable time as may be fixed by the court.
The Correspondent has himself stated in his writ petition that the Petitioner in the earlier writ petition, viz. S. Chinnappoo was working as
Double Part-time Vocational Instructor was appointed temporarily in the regular post with effect from 1.4.1990 and his appointment was
approved and salary was also released on the regular basis. Thereafter, it is stated that. Thiru S. Chinnappoo was later terminated from service
with effect 1.2.1993. He then suggests in the petition that in that vacancy another fresh incumbent Selvi P. Jebashakila was appointed with effect
from 8.7.1993. It is then pleaded that the authorities could not have made applicable G.O. Ms. No. 991, Education dated 16.7.1990 because of
which the Chief Educational Officer had returned the papers. It was pleaded that the said Government Order could not have been made applicable
to minority institutions like the Petitioner. A reference is also made to the appeal dated 31.10.1994 to Director of School Education against the
order refusing approval and points out that no orders'' thereupon were passed. It was in these circumstances that the writ petition was filed. It is
needless to mention that this writ petition has no merits whatsoever. It is obvious that Jebashakila was appointed admittedly in the place of
Chinnappoo, who is now ordered to be reinstated in the earlier writ petition (W.P. No. 7512 of 1993). In that view, there will be no question of
giving any approval of the new appointment of Jebashakila made by the Correspondent of the school. The stand taken by the Educational
authorities in not approving her appointment on account of incorrect termination of Chinnappoo is absolutely correct.
As if this is not sufficient, this writ petition was filed on 22.9.1996 whereas the earlier writ petition (W.P. No. 7512 of 1993) was filed by
Chinnappoo way back in the year 1993 and was ""admitted"" on 20-4-1993. There is a clear proof that the Correspondent of the school was
served by registered post with acknowledgment due on 17-5-1993. thus, on the. date when W.P. No. 14848 of 1996 was filed, the Petitioner
was aware of the pendency of the writ petition filed by Chinnappoo to which this Correspondent was a party Respondent. Yet the writ petition is
totally silent of that writ petition. This clearly amounts to suppression of material fact. The Petitioner herein was bound to disclose to this Court that
the writ petition filed by the teacher was not only admitted but he was himself a party-Respondent to that writ petition. Under such circumstances,
this writ petition has to be dismissed for that reason alone ; apart from that it has absolutely no merits. Hence, W.P. No. 14848 of 1996 is
dismissed. In the circumstances the Petitioner correspondent shall pay the costs of Rs. 2,000/- .