R.M. Usha vs The Director of Elementary Education and Others

N. Paul Vasanthakumar, J.—In W.P. No. 6263 of 2006, Petitioner seeks to forbear the Secretary of the Selva Vinayagar Middle School, Kothaman-galam/4th Respondent from preventing the Petitioner from discharging her duties as Headmistress of that School.

In W.P. No. 7985 of 2006, the Secretary of the Selva Vinayagar Middle School, Kothamangalam seeks to quash the order passed by the 2nd Respondent in his proceedings Na. Ka. No. 2970/A2/2. dated 5.6.2006 and to direct the Respondents 1 to 3 to sanction the grant due to the School.

For easy understanding, the parties in these writ petitions would be referred to according to their rank in W.P. No. 6263 of 2006.

The brief facts as stated in the affidavit in support of W.P. No. 6263 of 2006 are as follows.

(a) Petitioner was appointed as Headmistress on 17.2.1999 in the 4th Respondent school in the permanent post. The 4th Respondent school is a recognised, fully aided private school. Prior to the Petitioner''s appointment as Headmistress, she worked as B.T. Assistant in the TVS High School for 11 years.

(b) According to the Petitioner, due to some misunderstanding, the 4th Respondent School directed the Petitioner to go on migration to the 5th Respondent school. To avoid friction, Petitioner also accepted the offer of migration and requested the 4th and 5th Respondents to take necessary steps in this regard. Pursuant to the same, the 5th Respondent passed a resolution on 24.8.2004 and the 4th Respondent passed resolution on 13.9.2004 in this regard.

(c) The 4th Respondent sent the proposal to the 2nd Respondent on 4.10.2004. The first Respondent by his proceeding dated 20.2.2006 rejected the proposal of migration. However, by subsequent proceeding dated 25.4.2006, migration was ordered with certain conditions to the 5th Respondent school. The 5th Respondent School was not agreeable for the conditions and rejected the proposal of migration and sent a reply to the 2nd Respondent on 15.5.2006 and the copies of the said letter was also marked to the Petitioner as well as to the 4th Respondent School.

(d) However, the 4th Respondent sent a letter to the 3rd Respondent and stated that with effect from 1.6.2006 the Petitioner was relieved from duty. Having come to know the said fact on 2.6.2006. Petitioner gave a letter to the 4th Respondent School and stated that the Petitioner cannot be relieved and she is continuing as Headmistress of the School. Petitioner also sent representations to the 2nd Respondent through 3rd Respondent on 3.6.2006 and stated that the Petitioner should be permitted to continue in the 4th Respondent School.

(e) By proceeding dated 5.6.2006, the 2nd Respondent directed the 4th Respondent School to allow the Petitioner to continue in the post of Headmistress. However, the 4th Respondent failed to comply with the said order and therefore Petitioner made a representation to the 4th Respondent School and requested to allow her to work on 13.6.2006. Since the said request was not adhered to. Petitioner sent further representation to the 2nd Respondent on 16.6.2006. The 2nd Respondent, by his proceeding dated 22.6.2006 directed the 4th Respondent to permit the Petitioner to work, which was replied by the 4th Respondent on 23.6.2006 stating that the Petitioner was already relieved and she will not be permitted to work. Therefore the Petitioner has filed W.P. No. 6263 of 2006.

The 4th Respondent in W.P. No. 6263 of 2006, viz., the Secretary of the Selva Vinayagar Middle School, Kothamangalam, filed W.P. No. 7985 of 2006, challenging the order of the second Respondent dated 5.6.2006 giving direction to the School management to permit the Petitioner in W.P. No. 6263 of 2006 to work as Headmistress in view of the cancellation of the migration order. In the affidavit in support of the writ petition it is stated as follows.

(a) The 4th Respondent School management proceeded against the Petitioner (Headmistress) for certain irregularities, conducted enquiry by appointing a retired District Judge, who found that the charges are all proved and based on the enquiry Committee, the School Committee resolved to dismiss the Headmistress from service by resolution dated 10.7.2004.

(b) On 6.9.2004, the Headmistress voluntarily gave an application to the management and requested that she be relieved and be permitted to migrate as she is willing to go to the 5th Respondent School on migration as the said School is closer to her residence. The Headmistress also requested the Management to take necessary steps to have her services transferred to the 5th Respondent School. The School Committee consented for migration on humanitarian grounds and submitted proposal for migration on 4.10.2004. The 5th Respondent also resolved to take the 4th Respondent on migration as Headmistress of the School.

(c) Based on the consent given by the 5th Respondent School Committee on 23.8.2004, the first Respondent by his proceedings dated 25.4.2006 passed an order for migration, pursuant to which the second Respondent on 11.5.2006 ordered migration of the 4th Respondent to the 5th Respondent School based on which the School Committee passed an order on 30.5.2006 and relieved the Headmistress from service with effect from 1.6.2006 and charges were handed over to the newly appointed person.

(d) Proposals were also submitted to the second Respondent for approval of the new appointment made. It is also stated that on 5.6.2006 the second Respondent by his order cancelled the migration order dated 11.5.2006 without giving any valid reason and without giving opportunity of hearing to the Petitioner. The 4th Respondent School Management filed an appeal before the first Respondent on 4.7.2006. No order having been passed by the first Respondent and since the Petitioner/Headmistress filed W.P. No. 6263 of 2006, the School management was compelled to challenge the order of the second Respondent dated 5.6.2006 in this writ petition.

The 4th Respondent in W.P. No. 6263 of 2006/School management filed counter affidavit and stated that based on the application given by the Petitioner for voluntary migration, the School Committee passed resolution, which was accepted and acted upon pursuant to the orders passed by the first and second Respondent and the Petitioner was relieved from 1.6.2006 and after relieving the Petitioner and appointing another person in Petitioner''s place, the second Respondent passed an order on 5.6.2006 which is unable to be complied with. In the counter affidavit it is also stated that charges against the Petitioner are proved and the 4th Respondent School Committee took decision on humanitarian grounds, pursuant to the request of the Petitioner for migration and now the Petitioner cannot be taken back in the 4th Respondent School. Therefore the 4th Respondent prayed for dismissal of the petition.

The 5th Respondent in both the petitions filed counter affidavit and stated that based on the request made by the Petitioner, the School Committee passed a resolution for migrating the Petitioner to the 5th Respondent School. The first Respondent by proceeding dated 20.2.2006 rejected the said proposal. As the Headmistress post became vacant in the 5th Respondent School, the management resolved to appoint one D. Wilson as Headmaster by way of promotion by its resolution dated 3.5.2006 and the second Respondent also gave permission to fill up the post by order dated 31.5.2006. Accordingly the said D. Wilson was promoted and appointed as Headmaster with effect from 1.6.2006 and proposals were also submitted to the 2nd Respondent for approval of the said promotion on 2.6.2006. It is also stated that on 6.5.2006 ie., after the appointment of the said D. Wilson by resolution dated 3.5.2006, proceedings of the first Respondent dated 25.4.2006 was received, which imposed certain conditions, viz.,

(1) The qualified Teachers in the School should not have raised any demand;

(2) The exemption granted in favour of the Petitioner should be accepted by this Respondent;

(3) The writ Petitioner should agree to remain in the same status till she completes five years; and

(4) The provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rule 15(4)(ii) of the Rules, 1974 should be followed.

In view of the said conditions, the 5th Respondent management submitted its unwillingness on 15.5.2006 to the 2nd Respondent and also intimated that the said D. Wilson was appointed by the School Committee resolution dated 3.5.2006. It is also stated in the counter that the said Wilson took charge on 1.6.2006 and proposal for approval is pending and therefore no direction could be issued against this Respondent at this stage.

The Petitioner (Headmistress) filed reply affidavit wherein in paragraph 2 it is stated as follows,

2.I humbly submit that I filed an additional affidavit dated 26.9.2006 in the above writ petition contending that I may be given the post of Middle School Head Master in any of the Government School in Sakkottai Union or any other Union, which comes under the control of the 2nd Respondent. In the event of giving posting order as Middle School Headmaster to me by the 2nd Respondent in any of the Government School in Sakkottai Union or any other Union, I am willing to forego the backwages for the period from 02.06.2006 to 30.09.2006 and I may be given the continuity of service and seniority.

Therefore it is prayed that this Hon''ble Court may be pleased to accept this affidavit and pass suitable order and thus render justice.

In W.P. No. 7985 of 2006 filed by the School Management, the 4th Respondent, who is the Petitioner in the other writ petition (Headmistress) filed counter affidavit and denied the averments and stated that relieving of the Petitioner irom 31.5.2006 is on mala fide intention and the same is contrary to the migration order. The 5th Respondent having expressed their unwillingness not to comply with the condition, it is the duty of the 4th Respondent School management to permit the Petitioner to work and therefore the the Petitioner prayed for dismissal of W.P. No. 7985 of 2006.

10.1 have considered the rival submissions made by the learned Counsel for the respective Petitioners and also the respective Respondents.

The point in issue is whether relieving of the Petitioner on 31.5.2006 based on the migration order passed by the first Respondent, communicated by the second Respondent is valid or not.

The learned Senior counsel appearing for the 4th Respondent in W.P. No. 6263 of 2006/School management submits that after relieving the Petitioner (Headmistress), the School management appointed another person as Headmaster and the said person is continuing in the post and in spite of taking action against the writ Petitioner, based on the voluntary migration sought for by the writ Petitioner, 4th Respondent gave its willingness for migration to the 5th Respondent School and now the 4th Respondent cannot be compelled to take back the Petitioner, particularly when the charges framed against the Petitioner are proved. The learned Senior Counsel also argued that by permitting the Petitioner to work, the rights of the person who has been newly appointed from 1.6.2006 will be affected and therefore the Petitioner may be directed to be absorbed in a Government/Panchayat Union/ Municipal School, wherever there is vacancy.

The learned Counsel for the 5th Respondent School Management submitted that the conditional migration having been issued, which was not accepted by the 5th Respondent Management and the same having been communicated to the Respondents 1 and 2 in time, the 5th Respondent promoted another teacher viz..D. Wilson to work from 1.6.2006 and he is serving as Headmaster of the School and approval of his appointment is also pending and hence no direction could be issued to the 5th Respondent management.

The learned Counsel for the Petitioner based on the contents of the additional affidavit filed on 26.9.2006 submits that the Petitioner is willing to be posted in any one of the Government/Panchayat Union/Municipal Schools and she is prepared to forego the backwages from 2.6.2006 till the date of absorption if the same is made within a reasonable time.

The fact remains that because of the consent given by the 4th Respondent and 5th Respondent for migrating the Petitioner the first Respondent passed an order of migration with condition. The conditions imposed were not acceptable to the 5th Respondent School and the same was communicated to the Respondents 1 and 2. Pursuant to the migration order, 4th Respondent relieved the Petitioner from 31.5.2006 and appointed another person as Headmaster in the vacancy. The order of migration was cancelled only on 5.6.2006 by the first Respondent. Before the said order of cancellation 4th Respondent relieved the Petitioner, which cannot be treated as illegal. It is in obedience to the migration order. Similarly the 5th Respondent also cannot be blamed as it is not agreeable for the conditions imposed in the migration order. Therefore neither the Petitioner, nor the 4th Respondent nor the 5th Respondent is at fault. The situation now faced by the Petitioner is only due to the action of the Respondents 1 and 2.

Similar issue arose before this Court in the Division Bench judgment reported in 1991 Writ L.R. 94 : 1991-1-L.W. 15 S.N. Suppl. (The Director of School Education, Madras and Ors. v. V. Gnanaraj and others). Taking note of the similar circumstances, the Government ordered to relieve the unqualified person before extending the time, pursuant to which the management relieved the person and appointed another person. The subsequent extension of time granted enabled the ousted teacher to rejoin duty. However, the management refused to permit the ousted teacher to rejoin duty as it had already appointed another teacher. The Division Bench upholding the finding given by the learned single Judge that it is open to the Government to consider absorption of the Petitioner in anyone of the Schools, in para 5 held as follows,

The first Respondent school could not be technically held to be responsible for this state of affairs. Equally so, it will not be proper to oust the fifth Respondent, who is a qualified hand and who has come into the post in the place of the Petitioner. The best way to work out the remedies for the Petitioner, without offending Respondents 1 and 5 is only by giving directions to the Government as the learned single Judge did. It is not pleaded and it could not be pleaded that the directions given by the learned single Judge are unworkable. On the other hand, we find there is no challenge with reference to the statement put forth on behalf of the Petitioners before the learned single Judge that there are vacancies in other schools. Under these circumstances, this writ appeal fails and the same is dismissed. No costs.

Following the said judgment and taking into consideration the facts and circumstances of the case, I am of the view that the matter in issue in these cases could be resolved by giving directions to the Respondents 1 and 2 to absorb the Petitioner in anyone of the Government/ Panchayat Union/ Municipal Schools in Sivaganga District on or before 30.11.2006. Petitioner shall not claim any backwages from 2.6.2006 till her joining in the new school. However, she is entitled to get continuity of service and other benefits for the said period.

W.P. No. 6263 of 2006 is ordered as above. No costs. Connected miscellaneous petitions are closed.

In view of the orders passed in W.P. No. 6263 of 2006, W.P. No. 7985 of 2006 stands allowed. No costs. Connected miscellaneous petition is closed.