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2006 DIGILAW 2439 (MAD)

Bharath Primary School v. A. Pauldurai & Others

2006-09-15

A.P.SHAH, K.CHANDRU

body2006
Judgment :- (PRAYER: Appeal under Clause 15 of the Letters Patent against the order of the learned single Judge, dated 19.4.2004 in W.P.No.14834 of 2000.) K. Chandru, J. The appellant is a primary School governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (for short, 'School Rules'). In this writ appeal, they have challenged the order of the learned single Judge dated 19.4.2004 made in W.P.No.14834 of 2000 wherein and by which, they were directed to pay the salary of the first respondent for the period between 23.9.1998 and 07.6.2000, during which time the writ petitioner had acted as Head Master of the appellant School. 2. The first respondent herein was appointed as Head Master of the appellant School consequent to the retirement of one M.Sundaraj, who was the then Head Master. As it was regular vacancy, the appellant School committee considered the name of the first respondent and by a resolution dated 23.9.1998, he was appointed as Head Master. When proposals were sent to the second respondent Department for the purpose of approval, the second respondent passed an order dated 07.6.2000 rejecting the request of the appellant and refused to approve the appointment of the first respondent as Head Master on the ground that the School Rules were infracted in the matter of his appointment. It was stated in the order of the second respondent that the first respondent did not have the minimum five years experience as Secondary Grade Teacher as required and the post cannot be filled up by direct recruitment since already three other experienced Secondary Grade Teachers were available and their claims should have been considered in terms of Rule 15(4) of the School Rules. It was also stated that the person, who appointed him as Head Master, did not have the authority to do so and accordingly, rejected the same. Aggrieved at the said order, the first respondent approached this Court by way of the writ petition being W.P.No.14834 of 2000 and sought for setting aside the order of the second respondent and also for a direction to approve his appointment. 3. The learned single Judge, who heard the matter on 19.4.2004, after hearing the learned counsel for the parties and the learned Government Advocate representing the Department, dismissed the writ petition. 3. The learned single Judge, who heard the matter on 19.4.2004, after hearing the learned counsel for the parties and the learned Government Advocate representing the Department, dismissed the writ petition. The learned Judge found that in terms of Rule 15(4) of the School Rules, promotion will have to be made from among the qualified teachers in that school and if no qualified and suitable candidate is available, then by appointment of other persons employed in that school and thereafter, appointment of Teachers from any other school and if only these three methods fail, the management can recruit Teachers through direct recruitment. The learned Judge also held that for that purpose, the School committee should get prior approval from the District Educational Officer, who is the second respondent herein. The learned Judge further held that inasmuch as the first respondent had worked in the school from 23.9.1998 to 07.6.2000 and the work was extracted from him, the appellant Management had a moral responsibility to pay the salary to him. Accordingly, he also gave a direction to the appellant Management to pay the amount to the first respondent. It must be seen that during the writ proceedings, the appellant Management supported the case of the first respondent. Aggrieved by the order of the learned Judge directing the appellant Management to pay the salary to the first respondent for the period for which they have extracted work from him, the present appeal has been filed. 4. We have heard the arguments of Mr.A.K. Kumarasamy, the learned counsel appearing for the appellant and Mr.Sekar, the learned Special Government Pleader (Education), representing the second respondent Department and have also perused the records. 5. The learned counsel appearing for the appellant Management submitted that inasmuch as they have been directed to pay the salary, which is not contemplated under the School Rules, since this Court found that the writ petitioner / first respondent is not having any qualification, they cannot be mulcted with any liability by this Court. 6. 5. The learned counsel appearing for the appellant Management submitted that inasmuch as they have been directed to pay the salary, which is not contemplated under the School Rules, since this Court found that the writ petitioner / first respondent is not having any qualification, they cannot be mulcted with any liability by this Court. 6. When asked by this Court as to how the appellant Management is justified by extracting work from a poor Teacher, having appointed him without regard to the rules and regulations and having supported their stand at the time of hearing of the writ petition, they should come forward with the present writ appeal, the learned counsel sought to place reliance upon the judgment of the Division Bench of this Court reported in 2005 (1) CTC 8 (THE SECRETARY, SALIAR MAHAJANA HIGHER SECONDARY SCHOOLS vs. G.SUBBURAJ) wherein the Division Bench, having set aside the order of the learned single Judge in similar circumstances in the matter of payment of salary, gave the finding at paragraph 5 of the judgment, which reads as follows: "Admittedly, during the period when the first respondent was working i.e. from 11.8.1997 to October 2004, he has been paid a consolidated salary of Rs.1050 p.m. (later enhanced to Rs.1250 p.m.) from the donations received by the Management. The learned single Judge has directed that the first respondent should be paid salary of a regular teacher for the period for which he had worked i.e. from 11.8.1997. We are of the opinion that this direction of the learned single Judge for payment of salary as a regular teacher for the period for which the first respondent worked, cannot be sustained. Admittedly, the first respondent was not a legally appointed teacher. He had been appointed illegally in violation of Rule 15(4) of the Rules. Hence we cannot see how he can be granted salary of a regular teacher." 7. It can be seen from the facts of that case that the claim of the teacher having failed to get approval, when direction for salary as payable for a regular teacher was sought for, that was rejected. In fact, in that case, the teacher was being paid consolidated salary of Rs.1050/- p.m. from and out of the donation collected by the Management. In fact, in that case, the teacher was being paid consolidated salary of Rs.1050/- p.m. from and out of the donation collected by the Management. Therefore, it was held that having failed in the attempt to get the post approved, the teacher cannot seek the salary of a regular teacher. 8. However, our attention was brought to the decision of the Supreme Court reported in (1989) 2 SCC 691 [ANDI MUKTA SADGURU SHREE MUKTAJEE VANDAS SWAMI SUVARNA JAYANTI MAHOTSAV SMARAK TRUST AND OTHERS vs. V.R.RUDANI AND OTHERS] wherein the question with reference to the liability of the Management to pay salary for a teacher appointed by them, was answered by the Supreme Court and the relevant portion of the order found in paragraph 10 of the judgment is extracted below: "We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention." 9. We do not know as to how the earlier judgment of the Division Bench cited by the learned counsel for the appellant is helpful to him. On the contrary, as authoritatively pointed out by the Supreme Court, when there is a contract between the management and the teacher, the liability to pay the salary completely vests on them. If the stand of the Management is accepted, then the poor teacher, who worked as a Head Master for the period between 23.9.1998 and 07.6.2000, will have to go without any salary notwithstanding the fact that his appointment was not approved by the Department. 10. Article 23 of the Constitution of India prohibits forced labour. It is not as if the Management took a contra stand before the learned Judge with reference to the appointment of the first respondent. On the contrary, they have supported the appointment throughout and only when they were mulcted with financial liability, they have come forward to file the present appeal. Therefore, the stand of the Management cannot be approved. 11. In the light of the above, the writ appeal fails and the same stands dismissed. However, there will be no order as to costs.