The Director of Elementary Education, The Chief Educational Officer, The District Educational Officer and The Assistant Educational Officer vs St. Alphonse Middle School

P.R. Shivakumar, J.—The respondents 1 to 4 in W.P. No. 705/95 have preferred this writ appeal challenging the order of the learned

Single Judge dated 31.07.2001. The writ petitioner and the fifth respondent in the above said writ petition are the first and second respondents

respectively in this writ appeal. The first respondent/writ petitioner, St. Alphonse Middle School, Uthamapuram, Cumbam, Madurai District

preferred the above said writ petition challenging the order of the Chief Educational Officer, Madurai District (second appellant herein) dated

19.11.86 made in his proceedings Na.Ka. No. 14909/A4/82 and that of the Director of Elementary Education, Nungambakkam, Madras(first

appellant herein) dated 28.07.1994 passed in his proceedings Na. Ka. No. 46874/E.Education.J1/92 by which order the first appellant herein

dismissed the appeal preferred by the first respondent/writ petitioner and thereby confirming the order of the second appellant dated 19.11.86.

The W.P. No. 705/95 came to be disposed of by the learned Single Judge of this Court on 31.07.01 quashing the above said impugned orders

of the first and second appellants and directing payment of arrears of salary to the second respondent herein as Graduate Trained Headmaster of

the first respondent school within 6 months from the date of receipt of copy of that order. Aggrieved by the said order of the learned Single Judge,

the State (appellants 1 to 4) have preferred this writ appeal on various grounds set out in the memorandum of appeal.

The facts leading to the filing of the writ petition and the consequential writ appeal are summarised as follows:

St. Alphonse Middle School, Uthamapuram, Cumbam (Taluk), Madurai District is a recognised and fully Aided Minority Christian Institution

established long back in the year 1917 itself. By the third appellant herein, by virtue of the policy of the Government, some of the Higher

Elementary Schools were selected for the sanction of Graduate Trained Headmaster posts from 06.06.61. Though the first respondent school was

not one among the five schools selected for sanction of the post of Graduate trained Headmaster, in the very same year, the post sanctioned to one

M.V.Higher Elementary School, Cumbam, Madurai District was cancelled and the said post, according to the first respondent/writ petitioner, was

transferred to the first respondent school. For about 2 years the School did have two successive Graduate trained Headmaster namely R.Ganesan

from 27.7.61 to 15.3.62 and A.Hirudayaraj from 05.06.62 to 31.5.63 and from 01.06.63 till 13.05.80 the said post of Graduate Trained

Headmaster was left vacant. However by virtue of the Government Memorandum No. 73057/L1/76-3, Education dated 28.12.76, the District

Educational Officer, Periakulam/third appellant herein, in his proceedings Na.Ka. No. 9160.E/79 dated 13.05.80 granted permission for the

revival of the Graduate Trained Headmaster post which had been left unfilled from 01.06.63. In the said proceedings itself the third appellant has

permitted creation of one more Section in the VI standard and thereby increasing the number of Sections in VI standard from 3 to 4.

In the meanwhile, the Tamil Nadu Government in G.O.Ms. No. 1027 Education Department dated 24.5.76 directed that no fresh post of

Graduate Trained Headmaster, Tamil Pandits and Physical Training Instructors should be created suo motu by any aided Elementary School or

local body from 24.05.76. However, it was stated therein that if any post had already been created before 24.05.76, the same could be continued

and that in case the same were not filled up or were filled by the lower category persons due to non-availability of qualified graduate teachers, the

said post could be reviewed even after 24.5.76 and such revival would be allowed irrespective of any length of period during which the post

remained unutilized provided following conditions are satisfied.

a) Graduate Headmaster: strength of more than 400 students in Standard 1 to 8 (as per erratum Memo No. 7305741/76 Edn.Dated 1.3.1977.

b) Such revival could be done in the case of aided higher elementary school by the concerned management after obtaining prior permission from

the concerned District Educational Officer.

By virtue of the said Government order the second respondent, herein was appointed by the first respondent as a Graduate Trained Headmaster

and a letter was addressed on 25.5.79 to the third appellant herein, for approval of the appointment and revival of the post of the Graduate

Trained Headmaster for the first respondent school. The third appellant, District Educational Officer, Periyakulam by his proceedings Na.Ka. No.

9160/E/79 dated 13.5.80 permitted the revival of the said post. In the said letter itself the increase in the number of Sections of the Standard VI

has also been sanctioned raising the number of Sections from 3 to 4. Thereafter, for more than 6 years the second respondent herein continued as

a Graduate Trained Headmaster in the first respondent School not only drawing the salary for the said post but also drawing annual increments and

paying necessary contributions to Provident Fund etc., During the said period he completed the probation and his service was regularised. While

so, the second appellant herein, the Chief Educational Officer, Madurai District by his proceedings dated 19.11.86 in Na.Ka. No. 149090/A4/82

set aside the order of the third respondent granting revival of the Graduate Trained Headmaster post. The said letter of the second appellant was

questioned by the first respondent herein by filing an appeal before the first appellant and the same was ultimately dismissed by the first appellant

by his proceedings Na.Ka.46874/Tho.Ka.J1 dated 28.7.94. In the said letter, rejecting the appeal, the first appellant has directed the removal of

the second respondent from the post of Headmaster and for the recovery of the salary paid to the second respondent herein from the grants in aid

made to the first respondent Institution. The said letter of the first appellant was challenged in W.P. No. 705/95. The learned Single Judge, after

hearing both sides, allowed the writ petition with the following observation:

Even though the learned Government Advocate would contend that the fifth respondent was not appointed in a sanctioned post and therefore the

approval itself is irregular, in my considered opinion. Once the appointment of the fifth respondent was approved and his salary was already paid, it

may not be permissible in law to once again test the approval of appointment of the fifth respondent as B.T.Headmaster particularly when the

Government had taken a policy decision to appoint only a B.T. Headmaster in the Middle School and where there was no counter claim for the

post of Headmaster of the petitioner school.

The learned Government Advocate appearing for the appellants in this appeal contended that the learned Single Judge was not right in making

such observation for the simple reason that there cannot be any estoppel against the statute or the rules and regulations made thereunder. The other

contention of the learned Government Advocate is that the learned single Judge failed to note that the first respondent''s/writ petitioner''s contention

that the post of Graduate Trained Headmaster sanctioned to another School in 1961 was cancelled and transferred to the first respondent/writ

petitioner school has not been supported by any document and hence the appointment of the second respondent herein should be held as one

against a post which had not been sanctioned at all. After going through the records we are unable to accept such contention of the learned

Government Advocate. From the Chronological events signed by the District Educational Officer, Theni, it is obvious that the first respondent

school has had two successive Graduate Trained Headmaster from 27.07.61 to 31.05.63. The strength of teaching staff for assessment of teaching

grant as found in the said document will give clear indication that a Graduate Trained teacher, Tamil pandit and Physical Training Instructor were

included in the total number of 24 posts of teaching staff. The other facts enabling the Middle School to have a Graduate Trained Headmaster have

also not been taken into account by the first and second appellants while passing the impugned orders, the learned Government advocate

contented. One such condition pointed out by the learned Counsel for the appellants that the School should have not less than 400 students at all

relevant times which was the condition for having the Graduate Trained Headmaster post. But in fact, it is not in dispute that that the student

strength of the first respondent school never fall below 400 during the relevant period. It is also not in dispute that during the years 1967-68 and

1971-1972 two additional posts of Secondary grade teachers were sanctioned taking into account the increase in the student strength. That apart,

the first and second appellants while passing their impugned orders have lost sight of a very vital factor which goes to the root of the dispute itself.

By the time the order reviving the post of Graduate Trained Headmaster by the third appellant herein, the Government had taken a policy decision

and issued G.O. Ms. No. 1297 Education Department dated 21.7.79 upgrading all the post of Headmasters in Middle Schools to that of the

Graduate Trained Headmasters. Paragraph 2 of the Said Government Order reads as follows:

3(b)(i) When permanent vacancies arise in future in posts of headmasters of Middle Schools(due to death retirement, resignation etc.) such

vacancies shall be filled up by the senior most among persons working as secondary Grade teacher or in other cadres of trained teachers but

qualified for B.E./Pandit in the particulars management (i/e/Govt. all Govt. Schools; Local Bodies-Schools under each Local Body-Aide Schools-

Each Aided School or each cluster of Aided Schools under a single management) and such person shall be allowed B.Ed. Scale from the date of

appointment.

The said Government Order will be the answer to the contentions raised by the learned Additional Government Pleader. When the Government

itself has taken a policy decision that all the post of Headmasters in the Middle Schools should be manned by either Graduate Trained

Teachers(persons holding B.Ed. Degree) or Tamil pandits Grade I, there is no question of falling back on the earlier procedure of sanctioning the

said post to limited number Schools alone which has become redundant by the passing of the above said Government Order. It is nobody''s case

that the post of Headmaster in the first respondent school was not vacant or that a Secondary Grade Teacher had been appointed and was

functioning as Headmaster on the date of appointment of the second respondent as Headmaster in the first respondent School. Only in the event of

a Secondary Grade Teacher functioning as Headmaster in the Middle School, the appointment of a Graduate Trained person as Headmaster will

have to be postponed till the said post falls vacant due to death, retirement, transfer etc., The post of Headmaster in the first respondent Middle

School remained vacant on the date of appointment of the second respondent and there was no other person staking claim to the post on the

ground that he was functioning as such, at the time of appointment of the second respondent. Therefore, the appointment of the second respondent

as Headmaster in the first respondent Middle School and the consequent letter of the third appellant approving and reviving the post of Graduate

Trained Headmaster is completely in line with the spirit of the above cited Government Order and the policy of the Government expressed therein.

Perhaps due to the fact that no reference has been made in the judgment to the above said Government Order while observing that the

Government had taken a policy decision to appoint Graduate Trained Teachers as Headmasters in Middle Schools, the appellants have ventured

to file this writ appeal.

In our considered view, in view of the above said policy decision enunciated in the Government Order cited above, the learned Single Judge has

rightly allowed the writ petition and the same does not warrant any interference in this appeal. In the result the writ appeal fails and accordingly it is

dismissed. No costs.