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2017 DIGILAW 2499 (MAD)

M. Shivkumar v. Director of School Education

2017-08-08

G.JAYACHANDRAN, HULUVADI G.RAMESH

body2017
JUDGMENT : G. Jayachandran, J. The appellant herein a M.Sc., B.Ed., graduate, was appointed as High School Teacher in the Management Post temporarily, on a consolidated pay of Rs.8,000/- (Rupees Eight thousand only) by the third respondent Minority Educational Institution on 29.05.2012. When the vacancy arose in the sanctioned post, the appellant was appointed in the regular post on 27.05.2013, subject to approval of the second respondent/District Educational Officer which is a requisite, under law, for any appointment in a Private School run by the Minority Institution. 2. As per the law prevailing at that point of time, the second respondent did not approve the appointment of the appellant in a regular vacancy, since, the appellant did not qualify himself in Teacher Eligibility Test. The same was communicated by the second respondent to the third respondent on 02.09.2013. On receipt of the said order, the third respondent Management has in turn, communicated the same to the appellant through letter dated 16.04.2014. Since, the appointment of the appellant on regular basis not approved, the Management has decided to appoint him on temporary consolidated basis through PTA (Parent Teachers Association). Accordingly, the appellant has continued as Teacher in the third respondent School. However, the said appointment was temporary with condition that he may be relieved from service with one month notice on either side. While so, his service was terminated vide notice dated 01.12.2014, informing him that due to administrative reasons, the School Committee has decided to terminate his service from 31.12.2014. 3. On receipt of the termination notice, the appellant has filed a writ petition in W.P.No.33061 of 2014, seeking to quash the termination order dated 01.12.2014, passed by the third respondent. 4. In the affidavit filed by the appellant herein in support of his writ petition, he has not whispered about his appointment to regular post by the Management but disproved by the second respondent for want of Teacher Eligibility Test qualification. 5. The learned Single Judge after considering the facts put forth by the appellant and the third respondent Management has observed as follows:- “5. It is not in dispute that the petitioner was appointed at first, temporarily and accommodated in the regular post, as per his application, dated 20.05.2013. Subsequently, his approval was rejected on the ground of non-completion of TET and consequently, he has been terminated by the authority concerned, when he was working as probationer. 6. It is not in dispute that the petitioner was appointed at first, temporarily and accommodated in the regular post, as per his application, dated 20.05.2013. Subsequently, his approval was rejected on the ground of non-completion of TET and consequently, he has been terminated by the authority concerned, when he was working as probationer. 6. It is common knowledge that a probationer will not have any right of enquiry, before any order is passed by the authority concerned. 7. Further, the National Council for Teacher Education (NCTE) has laid down a guideline that, one of the essential qualifications for a person to be eligible for appointment as a teacher, in any of the schools, referred to in clause (n) of Section 2 of the RTE Act (Minority Institutions) is that, he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE. Admittedly, the petitioner, who is a probationer, has not acquired such qualification, at the time of passing the impugned order by the third respondent. Further more, the third respondent has terminated the services of the petitioner, vide impugned order, on administrative reasons, which this Court cannot interfere with.” 6. Aggrieved by the dismissal of the Writ Petition, the present Writ Appeal has been filed by the appellant pleading different set of grounds disjoint to the plea raised in the writ petition. 7. It is now contended by the appellant that the third respondent Management being a Minority Institution, as per the law laid down by the Hon'ble Supreme Court in Pramati Educational and Cultural Trust Vs Union of India, 2012 (6) SCC 106 Article 21A of the Constitution of India - the Right of Children to Free and Compulsory Education Act, 2009 (In short “the 2009 Act”) will not apply. Consequently, his termination without enquiry and prior approval from the second respondent is bad in law. 8. The learned counsel for the third respondent/Management would submit that, the initial appointment of the appellant on 29.05.2012 on consolidated pay in the Management post was revived after the second respondent declined to approve the appellants' appointment in the regular post. The said order dated 02.09.2013 has put the appellant back to the status of temporary employment with consolidated pay. The learned counsel for the third respondent/Management would submit that, the initial appointment of the appellant on 29.05.2012 on consolidated pay in the Management post was revived after the second respondent declined to approve the appellants' appointment in the regular post. The said order dated 02.09.2013 has put the appellant back to the status of temporary employment with consolidated pay. After the second respondent declined to approve the appellant in the sanctioned post, the Management has recruited a Teacher Eligibility Test qualified candidate and the same was communicated to the respondents for approval. Under these circumstances, the temporary service of the appellant is no more required for the management. Though the minority institutions are exempted from RTE Act 2009, it does not mean that the minority institution should not go for TET qualified teachers to their institution for imparting quality education through well qualified teachers. 9. The learned counsel for the appellant contended that, the appellant was appointed permanently in a regular aided post on 27.05.2013, with 2 years probation period, which deemed to be confirmed on completion of 2 years. Since, the termination order dated 01.12.2014 was stayed by this Court in M.P.No.1 of 2014 in W.P.No.33061 of 2014, the appellant has completed 2 years service on 26.05.2015. So, it is contended that his probation period deemed to have been confirmed as per the appointment order. Further, it is contended that the rejection of approval by the second respondent was solely for the reason that he did not qualified in Teachers Eligibility Test, whereas the Hon'ble Supreme Court in Pramati Educational and Cultural Trust Vs Union of India (cited supra) has exempted Minority Institutions from the purview of the Act 2009, thus, the reason for rejecting his appointment is no more valid. Both the above said contentions are frivolous and vexatious. 10. In fact, the appointment of the appellant in the aided post was not approved by the second respondent and same has been communicated as early as on 02.09.2013. The appellant has been again appointed in the temporary post on 16.04.2014, which, he has accepted and was serving till the issuance of termination notice. It is by the strength of the interim order passed by this Court, he continued in service till the date of dismissal of the writ petition. The appellant has been again appointed in the temporary post on 16.04.2014, which, he has accepted and was serving till the issuance of termination notice. It is by the strength of the interim order passed by this Court, he continued in service till the date of dismissal of the writ petition. It goes without saying that any interim order passed in the Miscellaneous Petition, is subject to the outcome of the main Writ Petition. 11. Therefore, it is a misleading representation that the appellant was appointed permanently on 27.05.2013, and his probation completed on 26.05.2015 by deeming clause. The appellant has conveniently suppressed the fact that the said appointment was subject to approval by the second respondent and the second respondent declined to approve his appointment as early as on 02.09.2013. Suppressing the fact, the appellant has obtained stay of the termination order and now, taking advantage of the fruits of his suppression seeks deemed status of permanent employment. The Judgment of the Hon'ble Supreme Court in Pramati Educational and Cultural Trust Vs Union of India (cited supra) determined on 06.05.2014, is of no avail for the appellant for two reasons, firstly, he has not challenged the order of the second respondent dated 02.09.2013, declining to approve his appointment in the sanctioned post. Contrarily, he has accepted it and, taken up the temporary post on 16.04.2014. Secondly, the Judgment of the Hon'ble Supreme Court, exempting Minority Institutions from the Act 2009, was delivered on 06.05.2014. This Judgment has only prospective effect. The order passed by the second respondent on 02.09.2013 is much prior to the Judgment. Therefore, it cannot be impugned belatedly. More so, when subsequently, a candidate qualified with Teachers Eligibility Test is appointed, Court cannot compel a Minority Institution to take on its roll, a staff whose service has become superfluous. 12. For the above said reasons, this Court finds no merit in this appeal. Hence, the Writ Appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.