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Judgment
V.S. Sirpurkar, J,
The present appeal is directed against the order of the learned single Judge dismissing the writ petition of the appellant. In that writ petition the
appellant had challenged the order dated 18.8.1993 which was passed by the fourth respondent hereinafter called the Management relieving her
from the post of Tamil Teacher in their school. The facts some times are more fanciful than the fiction. This case is a classic example of that. The
facts are as follows:
The petitioner is M.A. in Tamil and is also having qualification of Bachelor of Education. The fourth respondent was upgraded from middle school
to High School on the basis of the proceedings dated 29.8.1984 but with effect from 1.10.1984. Therefore, one post of Tamil Pandit was
sanctioned for the school. On 20.1.1985 the petitioner was appointed as Tamil Pandit in the fourth respondent school and continued to work
without any interruption till the impugned order dt.18.8.1993 was passed. It must be noted here mat the post of Headmistress had fallen vacant in
the fourth respondent school during the year 1985 itself and one Mrs. M. Kanakabai, who was earlier working in the post of Tamil Pandit was
promoted as Headmistress with effect from 13.1.1986. It is an admitted position that approval was not granted both for Kanakabai to the post of
Headmistress and the petitioner''s post as Tamil Pandit. Perhaps, the petitioners post became vacant because of the promotion granted to the said
Kanakabai to the post of Headmistress. Thus there was a necessary link between these two posts one of Kanakabai as Headmistress and the
petitioner Retna Bai as a Tamil Pandit. It seems that the Management all the while prayed to the department for approval of both the posts. Since
Kanakabai did not have five years experience, approval was not being accorded. Resultantly even the petitioner''s post did not get the approval. It
is an admitted case of the parties that the said approval came to be given only on 19.1.1990, but with the condition that Kanakabai will draw only
the Tamil Pundit''s pay between 1985 and 1991 and not that of the Headmistress and the petitioner would stand approved in the post of Tamil
Pandit from 1985 since the date when she was appointed as Tamil Pandit. Therefore it is an accepted position that on 19.1.1990 Kanakabai stood
approved as Headmistress with aforementioned Management while the petitioner stood approved in the post of Tamil Pandit with effect from
1985.
However, there is a small snag. Even of this approval was granted 19.1.1990, in fact, Kanakabai was terminated by the school on 8.4.1989
itself in pursuance of a departmental enquiry. There were number of charges leveled against her some of them were in the nature of criminal
offence. It was alleged that she had given false certificates and in the process had misappropriated some money also as the case may be, and had
earned some money illegality perhaps at the cost of the school. It is hard to tell, and it has not been explained to us by the Government Pleader as
to how the approval came to be granted to Kanakabai in the post of Headmistress when even before that date she already stood terminated. Be
that as it may, even today the government is not resiling from the position that at least from 19.1.1990 Kanakabai was approved as Headmistress
and resultantly, the petitioner was also approved in the post of Tamil Pandit with effect from 1985.
Be that as it may, it seems that Kanakabai challenged by way of an appeal the order of termination. That appeal seems to have been allowed
and there seems to have been a direction for reinstatement of Kanakabai in the post of Headmistress. During the arguments, learned counsel for
the appellant produced a copy of the letter No.97471/02/92-3 Edn. dt 22.6.1993. This order seems to have been passed by one V.
Sankarasubbaiyan, I.A.S., Secretary to Government, Education Department and it seems to have been addressed to the Director of School
Education, Madras-6. It makes a reference to G.O.Ms.No.1020 dated 2.11.1992, wherein, the Government had directed the Director of School
Education to instruct the Management to reinstate Tmt. Kanakabai as Headmistress. It is, therefore, clear that by order dated 2.11.1992
Kanakabai was directed to be reinstated in the post of Headmistress, but the Management acted though and did not allow her to join duty as
Headmistress. It seems that Kanakabai, therefore, sent a petition to the Government in the nature of a representation pointing these facts to the
Government and prayed that she should at least be reinstated with backwages as Headmistress or to give her posting in another school in similar
rank by transferring the post from the management. This communication dated 22.6.1993 mentions that the Government after ""careful"" examination
have decided to transfer one post of Tamil Pandit B.T. Assistant from the respondent school to another school along with Tmt. M. Kanakabai. An
immediate action was directed to be taken to transfer the point of Tamil Pandit B.T. Assistant from the High School to some other school along
with Tmt. M. Kanagabai. It seems, as a result of this communication dated 22.6.1993, the impugned order came to be passed and the school took
a view that since Kanakabai was transferred with the post of Tamil Pandit, the only person whose head could role was the petitioner, as she was
appointed as the Tamil Pandit. Consequently the school took the view that since the post of Tamil Pandit ceased to exist in the respondent school,
which post was take away by Kanakabai along with her, thanks to the Government orders which were so "" thoughtfully"" passed the petitioner must
lose her job as Tamil Pandit though the petitioner admittedly worked from 1985 to 1993 and also admittedly had nothing to do with the saga of
termination and reinstatement of Kanakabai and was a total foreigner to the controversy. The petitioner, therefore, came out with the petition
before the learned single Judge.
Learned Single Judge took a view that since the Government was well armed with Rule 17(3) (iii) to withdraw a post and since the government
had withdrawn the post of Tamil Pandit from the school and allotted it to some other school and since Kanakabai was transferred along with the
post, the termination of the petitioner was just a natural result, as no post existed in the school for her to serve on. It seems that after Kanakabai
was transferred along with the post, she was accommodated in some other school called K. Arumuga Nadar Girls Higher Secondary School,
Madras -21. This judgment of the learned single Judge is assailed in the present appeal.
Learned counsel appearing on behalf of the appellant/petitioner points out that this is a typical story where in the feud between the Headmistress
and the Management, the petitioner was made a scape goat. She points out that admittedly the petitioner''s post as Tamil Pandit was a sanctioned
post which was later on approved and she had put in nine years of service. She, therefore, points out that if the Management refused to reinstate
Kanakabai in pursuance of the order passed in the appeal filed by Kanakabai, ordinarily the management should have been punished or
Kanakabai should have been adjusted some where in the post of Headmistress, because even Kanakabai was approved as a Headmistress by the
government on 19.1.1990. However, the Government has very strangely acted in first demoting Kanakabai as a Tamil Pandit from the post of
Headmistress and then transferring Kanakabai along with the post to some other school. Learned Counsel points out the language of Rule 17(3)(iii)
of the Private Schools Act and Rules and points out that there are some factual errors in the judgment which has affected the whole result. Learned
Counsel points out that Rule 17 (3)(iii) specifically provides that where the management refuses to reinstate the concerned employee, it was open
to the Government to withdraw the recognition, apart from resumption of ""that"" post. The rule is some what like this:
Rule 17 (3)(iii): Where the appellate authority has decided against the imposition of the penalty of dismissal or removal from service or placement
under suspension of a teacher or other person employed in a Private School by the Management of that school, the Management of every Private
School, not being a minority school, shall implement the order of the Appellate Authority and reinstate the teachers or other persons with all back
wages for the period of dismissal or suspension or removal, within one month from the date of the order of the Appellate Authority failing which
apart from resumption of the post, recognition shall be withdrawn"" (Italics Supplied)
Learned Counsel points out that if the management refused to reinstate Kanakabai, who was an approved Headmistress, then the post of
Headmistress alone could have been withdrawn by the Government, but on a strange logic, the Government had withdrawn the post of Tamil
Pandit, on, which the innocent person like the petitioner was serving and in the process Kanakabai was transferred along with that very post which
was withdrawn by the Government, thereby leaving the petitioner high and dry.
Learned Government Pleader, however, supports the judgment on the ground that Rule 17(3)(iii) the post could always be withdrawn and the
Government was well justified in withdrawing the post of Tamil Pandit. It must be made clear that the Government Pleader could show no other
provision in the Private Schools Act and Rules which permitted withdrawal and transfer of the post and also the transfer of an incumbent of the
post with the post to some other school. The whole reliance of the Government Pleader is on Rule 17(3)(iii). Learned Government Pleader submits
that if the management failed to honour the orders of reinstatement of Kanakabai in the post of the Headmistress, then, the Government was well
justified in withdrawing the post of Tamil Pandit from that school and in the process the only person to be terminated was the petitioner as she was
left with no post of Tamil Pandit in the school.
The Management is also represented by counsel and the counsel says that as a matter of fact, the Management had shown its bona fides by
writing to the Government consistently from 1993 that be post of Tamil Pandit was bound to be created in the school and the petitioner was liable
to be reinstated in that post. It was candidly admitted by the learned counsel appearing for the Management that the decision by which Kanakabai
was directed to be reinstated in the post of Headmistress was suffered by the Management and was not challenged. Instead the Management
condescended to the transfer of Kanakabai to some other school along with the post of Tamil Pandit.
On the backdrop of this rival contentions, it will be better first to take appropriate look at Rule 17(3)(iii) of the Private Schools Act and Rules.
A plain and simple reading of the rule suggests that where the appellate authority directs reinstatement by setting aside the penalty ordered by the
Management of a Private school, such order shall be bound to be complied with by the Management. The rule also further goes to suggest that in
such case, it will be the duty of the Management to pay all the backwages for the period of dismissal or suspension or removal as the case may be.
The rule further provides that where the Management does not comply with the order within one month, as suggested in the rule, the recognition of
the school shall be withdrawn and/or the post itself could be resumed by the government. It is obvious from the language of the rule which is plain
and unambiguous that the word ''post'' has to be read in the context of the language of the rule. The Government may be able to resume that post
but that post shall necessarily be the one, the incumbent of which has been ordered to be reinstated by the appellate authority. It cannot be any
other post, on which, the incumbent is not directed to be reinstated, otherwise devastating results will follow, as they have followed in this case.
We will take an example now. Suppose a person has been directed to be reinstated in the post of Headmistress, the government on account of the
failure of the Management to comply with that order, would be able to only resume the post of Headmistress, because, that is the post in question.
It cannot be left to the free will of the Government to resume any post. That is the only way the rule can be read. If this interpretation so applicable,
then it was necessary that in this case the only post which could be resumed is the post of Headmistress because it was admitted position that on
the date when Kanakabai was terminated, Kanakabai was an approved Headmistress, which post was also a sanctioned post. By way of
punishment to the Management, the government could have withdrawn the recognition. Very strangely enough the Government did notwithdraw
the recognition and instead perhaps a compromise formally was arrived at by the Government and the Management that Kanakabai should be
adjusted not as Headmistress in some other school but in the post of Tamil Pandit which post she has not held at all in the fourth respondent school
and in her movement the petitioner should stand to lose the job as well. In effect the Government should have instead of resuming the post of
Headmistress resumed the post of Tamil Pandit regarding which there was no dispute and regarding which there was no suspension, termination or
removal or dismissal. The Management also condescended to this and the only person to suffer was the present petitioner. This could not have
been possible by any logic and we fail to understand how such a course was undertaken.
Learned Single Judge has in Paragraph 7 expressed that there was no doubt that the fourth respondent ought to have complied with the
directions issued by the appellate authority with regard to the reinstatement of M. Kanakabai inasmuch as she had succeeded in her appeal.
However, relying only on Rule 17(3)(iii) learned Judge observes as follows:
In this case, inasmuch as the appellate authority has directed the fourth respondent to reinstate Tmt. M. Kanakabai as B.T. Assistant or Tamil
Pandit and the fourth respondent having not implemented the same, the authorities by exercising the above power, transferred the post of Tamil
Pandit to the other needy school, namely, K. Arumuga Nadar Girl''s Higher Secondary school, Madras-21 and posted M. Kanakabai in that
post...
We are afraid the correct factual position was not brought to the notice of the learned single Judge and it is perhaps because of that the learned
single Judge has taken the view that he has chosen to take. It was represented before the learned single Judge as if the appellate authority had
directed the reinstatement of M. Kanakabai in the post of B.T. Assistant or Tamil Pandit. This is not the fact and the learned Government Pleader
also admitted before us that the reinstatement was ordered in the post of Headmistress and not in the post of B.T. Assistant or Tamil Pandit. Now
this one wrong representation of the fact changes the whole colour because if the interpretation is what we have given and if factually the appellate
authority reinstated Kanakabai in the post of Tamil Pandit B.T. Assistant as the case may be, and not as Headmistress. Learned Single Judge was
right in erring because in that the government would have been able to resume the post of the Tamil Pandit B.T. Assistant, but it was not pointed
out before the learned single Judge that the reinstatement was ordered not in the post of tamil Pandit but as Headmistress. Therefore, the
Government was wholly unjustified in resuming the post of Tamil Pandit and not the post of Headmistress. It has also been observed by the learned
single Judge that the order of the appellate authority reinstating Kanakabai was not challenged by the fourth respondent. Learned Judge has very
strangely found fault with the petitioner that she has not challenged the said order though a copy was marked to her. Now according to us, it was
not at all necessary for the petitioner to challenge that order, for the simple reason that order makes a specific reference to the reinstatement of
Kanakabai as Headmistress and not in the post of Tamil Pandit. Therefore, there was nothing that the petitioner was required to do, more
particularly, challenge the order passed by the appellate authority was later on challenged by the Management by way of further revision and by
order dated 2.11.1992 that revision petition was dismissed by the Government. We have already made reference to the said order dated
2.11.1992 when it was referred to in the order dt 22.6.1993, to which also we have made a reference earlier in this Judgment. In our opinion,
therefore, the post of Tamil Pandit could not have been withdrawn or resumed as the case may be by the Government and along with the
incumbent on that post, namely M. Kanakabai, the post could not have been transferred. Incidentally, it is also clear that M. Kanakabai was not
holding the post of Tamil Pandit at all. Therefore, by which logic she came to be transferred along with the post which she was not holding at all is
totally imunderstable. This position was obviously not brought to the notice of the learned single Judge and instead an impression was created
before the learned single judge that M. Kanakabai was holding the post of B.T. Assistant or Tamil Pandit and she was directed to be reinstated in
that post. This has created the whole confusion. We are, therefore, unable to agree with the learned single Judge, who has held that the
Government was justified in resuming and transferring the post of Tamil Pandit along with M. Kanakabai. Since we do not agree with the learned
single Judge, we would choose to allow the writ petition.
By way of desperate argument learned Government Pleader pointed out that the Government in the best interest of the institution did not
choose to resume the post of Headmistress but choose to resume the post of Tamil Pandit. According to the learned Government Pleader every
school, must have the post of Headmistress and the withdrawal of that post would have made chaos in the aforementioned fourth respondent
school. We are unable to agree with the learned Government Pleader. It was liable to be seen that Kanakabai was never holding the post of tamil
Pandit. She was holding the post of Headmistress and her appointment was also approved, though in a very strange manner on 19.1.1990. Under
the circumstances, we are completely at large to see as to how firstly the post of Tamil Pandit was decided to be resumed and how Kanakabai
was linked with the post and was transferred with that post to some other school. All this is totally ununderstable and sings of some serious trial
administration. We hope that the Government takes notice of this and takes proper action against the concerned authorities who are responsible
for this exercise.
In the result the appeal is allowed and in the process Writ Petition No.13734 of 1994 is also allowed. Under the circumstances we grant costs
of Rs.2000 against the respondents jointly and severally. Connected C.M.P. is closed.
The Government shall not proceed to comply with this order in its entirety by calculating the backwages etc. of the petitioner and providing her
with employment, if not in the same school, in any other school in the post of Tamil Pandit.