Director of School Education, Madras and others vs V. Gnanaraj and anothers

Nainar Sundaram, J.—This writ appeal is directed against the order of the learned single Judge, dated 20-4-1990 in W.P. No. 6796 of

1988 and the order of clarification, dated 25th June, 1990 passed in W.M. P. No. 10748 of 1990 in that writ petition. We will presently refer to

the import and impact of the orders of the learned single Judge. Before that, we must refer to the array of parties so that we could deal with the

controversy in this writ appeal conveniently and appropriately. The first respondent in the writ appeal is the petitioner in the writ petition.

Respondents 2 and 3 in the writ appeal are respondents 1 and 5 in the writ petition. Respondents 2 to 4 in the writ petition are the appellants in the

writ appeal. We are referring to the parties as per their array in the writ petition. The petitioner was in the services of the first respondent as a

Physical Director. The qualification prescribed for the said post was a pass in Master of Physical Education, the abbreviation being M.P. Ed. The

petitioner lacked it. But there were Government Order granting time to personnel like the petitioner to acquire that qualification. On 2-5-1988 the

Government extended the time for acquiring the qualification up to 31-5-1988. On 12-5-1988 the second respondent issued instructions to

replace unqualified physical Directors. On 30-5-1988 the third respondent granted permission to the first respondent to terminate the services of

the petitioner, who had not been qualified himself. On 31-5-1988 the first respondent, by the order impugned in the writ petition, terminated the

services of the petitioner. The petitioner came to this Court impugning the order of termination passed by the first respondent. While the writ

petition was pending, G.O. Ms. No. 1514, Education (HS.2) Department, dated 23-9-1988 with regard to the period within which the

qualification has to be acquired, the concerned rule was amended in the following manner :

In the said special Rules, in Rule 11, for the expressions ""31st May 1988"" the expressions ""31st May 1990 shall be substituted.

In August, 1989, the petitioner had acquired the qualification of M.P. Ed. On 27-9-1988 the second respondent issued proceedings of clarification

and the relevant portion as found in paragraph 2 thereof is as follows :

The Government order should be communicated immediately to the management of all Aided Higher Secondary Schools and extent authorities of

all local body Higher Secondary Schools as the extension of time given to the Government Higher Secondary School teachers in service on 28-4-

19981 will apply to the staff handling higher secondary classes on 28-4-1981 in non-government Higher Secondary Schools also.

A perusal of the above extract shows that the benefit of extension was available to teaching staff who were in service on 28-4-1981. The petitioner

was one such staff. On 4-10-1988 the third respondent while communicating the proceedings of the second respondent dated 27-9-1988,

directed strict adherence to the said proceedings.

The learned single Judge, who dealt with the writ petition, found that after the petitioner''s service was terminated, the 5th respondent, he being

qualified, has been given the post, which the petitioner occupied. The learned single Judge could not find fault with the impugned order of

termination, dated 31-5-1988 passed by the first respondent because that was done in tune with the rules, which prevailed then. But the learned

single Judge look note of the fact that on 23-9-1988 by G.O. Ms. No. 1514, there has been an amendment to the rule, substituting the expression

31-5-1990"" for the expression ""31-5-1988"" occurring in the concerned rule and also taking note of the statement made by the learned Additional

Government Pleader appearing for respondents 2 to 4 that the proceedings relating to the extension of the period for acquiring the qualification are

applicable to the petitioner also, deemed fit to give the appropriate direction for absorption of the petitioner in any one of the Government Aided

Schools from the coming academic year. It must he pointed out that though in the earlier portion of paragraph 9 of the order, the learned single

Judge clearly indicated that the petitioner should be absorbed by the Government in any one of the Government Aided Schools, yet towards the

end of that paragraph, it has been stated that the petitioner should be absorbed in any of the Government schools. That is obviously a mistake that

has crept into the order and it should only mean absorption into any one of the Government Aided Schools. Even otherwise, Miss Anna Mathew,

learned counsel for the petitioner, made it clear that her client''s interest will be secured and he will he satisfied if he is given the appointment in any

one of the Government Aided Schools, and not necessarily in a Government School. The learned single Judge issued a writ of Mandamus, without

setting aside the impugned order of termination of the services of the petitioner passed by the first respondent by directing the absorption of the

petitioner in any one of the Government Aided Schools from the coming academic year. For the purpose of implementation, the learned single

Judge was put on notice about two vacancies in two schools in Tirunelveli area and this has obliged the learned single Judge to direct that it is open

to the Government to consider the absorption of the petitioner in any one of the schools. W.M.P. No. 10748 of 1990 was taken out by the

petitioner to clarify the order by substituting for the word ''Tirunelveli'', the word Tuticorin''. That has been done by the learned single Judge by the

order of clarification in W.M.P. No. 10748 of 1990.

In this writ appeal, Mr. K. Raviraja Pandian, learned Additional Government Pleader, appearing for respondents 2 to 4, would submit that the

learned single Judge has gone beyond the scope of the controversy in the writ petition and when he found that the impugned order of termination of

the services of the petitioner passed by the first respondent, was in accordance with the rules prevailing then, the learned single Judge ought to have

left the matter at that, and should not have further ventured to give the direction by way of a writ of mandamus to the Government to absorb the

petitioner in any one of the Government Aided Schools. This Court, while exercising writ powers, is not scuttled down to the exact prayer

projected in the writ petition. This Court can always take note of subsequent events for the purpose of giving complete, effective and appropriate

reliefs to the parties. The facts exposed and the points involved and resolved, can certainly guide the Court to give the appropriate reliefs to the

parties. The jurisdiction of this Court under Art. 226 is invoked only in furtherance of justice. Hence, we are not in a position to appreciate and

accept the above line of thinking put forth by the Additional Government Pleader appearing for respondents 2 to 4.

Then the question is as to whether there is a warrant for the learned single Judge issuing the direction as he did the petitioner was in service on

28-4-1981. G.O. Ms. No. 1514, dated 23-9-1988 had extended the time up to 31-5-1990 for personnel like the petitioner to qualify themselves

for the post of a Physical Director. The learned Additional Government Pleader who represented the cause of the respondents 2 to 4 before the

learned single Judge, did not mince matters and he had made a fair statement that these proceedings shall govern and will be applicable to the case

of the petitioner also. The earlier extension for qualifying lapsed with the end of 31-5-1988, If only the Government, when it chose to further

extend the time, had acted before the lapse of the earlier period of extension, no one could have had any grievance. Obviously time had been

consumed for deliberations, and about four months later, G.O. Ms. No. 1514 dated 23-9-1988 came up extending the time limit up to 31-5-

1990. Visibly the Government has omitted to provide for contingencies like the one the petitioner faced on account of delay in extending the time

limit. The petitioner has qualified himself for the post by acquiring M.P. Ed., in August, 1989 and that is within the extension, lapsing only by 31-5-

1990. No explanation, much less, acceptable explanation is forthcoming as to why provisions for teaching staff like the petitioner was omitted to be

made. If by fortuitous circumstances, the petitioner had stuck on to the post on the date of G.O.Ms. No. 1514, namely 23-9-1988, no problem

would have cropped up. The Government obviously had acted in a lethargic manner in granting extension, much to the prejudice of the teaching

staff like the petitioner. If they had an intention to extend the time, they should have acted with alacrity before the lapse of the earlier extension. Or

else they should have made provision for the teaching staff like the petitioner, who were to be ousted and were in fact ousted in the interregnum.

Otherwise their action has got to be frowned upon as tainted with arbitrariness and caprice. That would bring in and in fact has brought in

unhealthy and harmful discrimination. Viewed in the above light, this Court can certainly act and pass orders remedying and rectifying the inequity

and unfair treatment meted out to the petitioner. Under these circumstances there is nothing wrong in the learned single Judge giving the directions

as he did.

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 petitioner 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.

Appeal dismissed.