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N.K. Saraswathi and Lily Isaiah Vs. the Chief Educational Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1974)2MLJ14
AppellantN.K. Saraswathi and Lily Isaiah
RespondentThe Chief Educational Officer and ors.
Cases ReferredK. Nagaratnammal v. S. Ibrahim Saheb and Anr. I.L.R.
Excerpt:
- .....that are likely to arise in the post of headmistresses, a panel would be constituted by a panel committee consisting of the president of the district board and the inspectors of schools. after the abolition of the district boards in the place of the president, it was the chief educational officer, who was functioning and therefore the panel committee consisted of the chief educational officer and the inspectors of schools. admittedly the petitioner (appellant herein) entered the service of the district board on 4th august, 1962, while the third respondent entered the service of the district board on 1st july, 1964. for the year 1965-66, four vacancies of headmistresses arose and the panel committee duly selected one timmathi sitalakshmi and three others. for the year 1966-67,.....
Judgment:

M.M. Ismail, J.

1. W. A. No. 347 of 1972.-- The writ appeal is directed against the order of Ramaprasada Rao, J., dated 3rd April, 1972 in W.P. No. 85 of 1972. The petitioner therein is the appellant herein. The facts are not in controversy. The appellant herein and the third respondent belong to the District Board Educational Service as Assistants in schools. According to the practice followed with reference to the rules that have been framed by the Government pursuant to Sections 70 and 199 (2) (a) of the Madras District Boards Act, 1920 for each year, on the basis of the vacancies that are likely to arise in the post of Headmistresses, a panel would be constituted by a Panel Committee consisting of the President of the District Board and the Inspectors of Schools. After the abolition of the District Boards in the place of the President, it was the Chief Educational Officer, who was functioning and therefore the Panel Committee consisted of the Chief Educational Officer and the Inspectors of Schools. Admittedly the petitioner (appellant herein) entered the service of the District Board on 4th August, 1962, while the third respondent entered the service of the District Board on 1st July, 1964. For the year 1965-66, four vacancies of Headmistresses arose and the Panel Committee duly selected one Timmathi Sitalakshmi and three others. For the year 1966-67, there was no selection by the Panel Committee. For the year 1967-68, the Panel Committee, though it was obliged to select two, selected only one. For the year 1962-63 there was no selection and for the year 1969-70, two persons one Thirumathi Vedavalli and the appellant herein were selected to constitute the Panel by the Panel Committee on 17th March, 1970. Against the proceedings of the Panel Committee, the third respondent herein preferred an appeal to the Director of School Education, Madras, contending that she ought to have been included in the Panel for the year 1965-66 itself and notwithstanding this even for the year 1969-70, her name was not included in the Panel. The Director of School Education, by his order dated 21st October, 1971, held that the third respondent should have been included in the Panel for the year 1965-66 itself and that justice has been denied to her by not including her name even for the year 1969-70. Consequently he gave a direction to the Chief Educational Officer to revise the Panel and include the name of the third respondent, Tirumathi Lily Isaiah, in the Panel for 1969-70 and give her rank No. 1. He also directed the Chief Educational Officer to give a posting to the third respondent immediately and intimate the same to him. Pursuant to this order of the Director of School Education, the Panel Committee on 29th October, 1971 revised the original Panel and included the name of the third respondent herein and assigned her the first rank. The result of that was that the third respondent was appointed as a Headmistress and the appellant herein who was by that time appointed as Headmistress was reverted as an Assistant. Aggrieved by these proceedings, the appellant herein filed W. P. No. 85 of 1972 on the file of this Court and prayed for the issue of a writ of certiorari to quash the order dated 21st October, 1971 of the Director of School Education and the consequent proceedings of the Panel Committee, represented by the Chief Educational Officer, Coimbatore, dated 29th October, 1971. This Writ Petition came up for hearing before Ramaprasada Rao, J. Before the learned Judge, on behalf of the appellant two arguments were principally advanced in support of the writ petition. The first was that the Director of School Education violated the principles of natural justice, when he passed the order dated 21st October, 1971 without giving any opportunity whatever to the appellant herein, who was really aggrieved by his order as well as the consequential order dated 29th October, 1971 of the Panel Committee. The second argument was that the rules did not provide for any appeal to the Director of School Education against the orders of the Panel Committee and consequently the Director of School Education had no jurisdiction whatever to interfere with the Panel constituted by the Panel Committee. The learned Judge accepted the first argument advanced on behalf of the appellant and held that the order of the Director of School Education dated 21st October, 1971 was vitiated in as much as the same was passed in violation of the principles of natural justice. As far as the second argument was concerned, the learned Judge negative the same. In the view of the learned Judge, the fact that the rules did not provide for any appeal did not take away the power or authority of the administrative Head of the Department to consider the correctness of the orders passed by the Panel Committee and consequently the Director of School Education was entitled to entertain the appeal preferred by the third respondent herein and interfere with the Panel prepared by the Panel Committee on the representation of the third respondent. Even though the learned Judge rejected the contention of the appellant on the second point, in view of his conclusion on the first point, he allowed the writ petition and quashed the impugned orders. The learned Judge however pointed out towards the end of his judgment:

It is open to the Panel Committee of the District to consider the relative claims of the petitioner and the third respondent as also the other members who were inducted in the Panel for the year 1969-70 and prepare the Panel in accordance with law after hearing the parties before them and those who are likely to be affected thereunder.

As against this order of Ramaprasada Rao, J., the third respondent herein preferred W.A. No. 144 of 1972 and that writ appeal was dismissed at the stage of admission by a Bench of this Court, to which one of us was a party. It is thereafter the present appeal has been preferred by the petitioner in the writ petition.

2. After the writ petition was allowed by this Court, the Panel Committee passed a fresh order on 24th July, 1972. The order reads as follows:

This office proceedings Rc. No. 51-SI/70, dated 29th October, 1971 reconstitution the Panel for 1969-70 with the following names is hereby cancelled.

A list nilB list 1. Tmt. Lily Isaiah2. Tmt. S. Vedavalli3. Tmt. N. K. Saraswathi2. The original Panel drawn on 17th March, 170 for 1969-70 with the following names stand (s).

(1) Tmt. S. Vedavalli (2) Tmt. N. K. Saraswathi.

It is to quash this order, W.P. No. 2066 of 1972 has been preferred by the third respondent in this appeal, W.A. No. 347 of 1972.

3. Mr. K. Alagiriswami, learned Counsel for the appellant, contends that in so far as the matter is covered and regulated by statutory rules and in so far as those rules do not provide for any appeal against orders of the Panel Committee, the Director of School Education could not claim to exercise any administrative power with reference to such matters and consequently the appeal preferred by the third respondent to the Director of School Education was incompetent and the order passed by the Director of School Education was totally without jurisdiction. In support of this contention, the learned Counsel relied on a decision of a Full Bench of this Court in K. Nagaratnammal v. S. Ibrahim Saheb and Anr. I.L.R. (1955) Mad. : AIR1955Mad305 . In that judgment, the Full Bench of this Court has held:

Where a statute takes over and occupies a field previously not regulated by legislation, the rights and powers conferred and the obligations imposed by the statute must be worked out within the statutory framework. If a statute confers a particular right and prescribes a particular mode for its enforcement, enforcement of the right must be sought in that mode. If it is to be enforced by a suit, then a suit must be filed; if it is to be vindicated by an appeal, then an appeal must be preferred to the specified authority. If no appeal is provided for but only a right of revision, then that remedy must be sought in aid. Conversely, if no appeal or revision is provided for, then the order of the original authority cannot be interfered with and that order would be the first and final Order.

An argument similar to the one which found favour with Ramaprasada Rao, J., namely, an administrative superior in the exercise of his power of superintendence can scrutinise the orders passed by a subordinate authority was advanced before the Full Bench. The argument as referred to by the Full Bench itself is in the following terms:

All the administrative and executive acts of any authority under the Government are subject to the overall control of the Government; the power of the Government to interfere and revise the orders of those subordinate authorities is derived from the power of the Government to govern. Where the power exercised by the authorities subordinate to the Government may be described as judicial Or quasi-judicial process, Government may not have power to intervene. But where it is not of such a nature but is purely administrative in character, the Government have power to interfere.

The Full Bench rejected this argument also. The Full Bench pointed out:

The contention is opposed to what seems to us to be a sound rule, that where the statute has made provision in respect of particular matters, it is to the statute that we must look for the determination of the rights of individuals and not to the vague and indefinite background of the overall powers of the Government.

In this particular case, as we have pointed out already, the proceedings were said to be taken by the panel committee pursuant to the rules framed by the Government under Sections 70 and 199 (2) (a) of the Madras District Boards Act, 1920. Admittedly those rules do not provide for any appeal against the orders of the panel committee to the Director of School Education. Consequently, the only question that arises for considerations is, whether, notwithstanding the absence of any provision for appeal, the Director of School Education has any power to entertain an appeal against the orders of the panel committee. The decision of the Full Bench to which we have drawn attention already is a complete answer to this question. According to the judgment of the Full Bench, once the matter is governed and regulated by statutory provisions or the rules made thereunder, there is no scope for the exercise of any power of administrative superintendence outside the provisions of the Act or the rules. Once the rules do not provide for an appeal or revision, the original order is intended to be final and cannot be interfered with by the so-called exercise of powers of administrative superintendence and in the words of the Full Bench, such order would be the first and final order. In view of this Full Bench judgment, Mr. K. K. Venugopal, learned Counsel for the third respondent, could not sustain the conclusion of the learned Judge in this behalf.

4. On the other hand, Mr. K. K. Venugopal sought to attempt a fresh argument. According to him, the District Boards came to an end on 2nd October, 1961 and the District Board schools were taken over and managed by the Collector till 1963 and thereafter they became regular Government schools and consequently the rules referred to above, namely, the rules framed under the Madras District Boards Act, 1920, have no application and therefore we must proceed on the basis that there are no rules at all governing the matter in question. We are unable to accept this argument for the simple reason that the entire proceedings before the learned Judge as Well as the case of the parties even in W.P. No. 2066 of 1972 have been rested only on the rules framed by the Government under the statutory provisions of the Madras District Boards Act, 1920, referred to already. Consequently, we are unable to entertain this argument for the first time and we hold that the learned Judge erred in coming to the conclusion that the Director of School Education in the exercise of general powers of superintendence could entertain an appeal at the instance of the third respondent against the order of the panel committee constituting the panel for the year 1969-70.

5. The result is, the writ appeal is allowed and the orders impugned in W.P. No. 85 of 1972 will stand quashed in toto on the ground that the former order was without jurisdiction and the latter one based upon the former one also will have no validity.

6. Writ Petition No. 2066 of 1972.-- As far as this writ petition is concerned, we have already extracted the order sought to be quashed. The result of the order of the learned Judge in W.P. No. 85 of 1972 as well as the order in the above writ appeal will be that the order dated 21st October, 1971 of the Director of School Education and the order dated 29th October, 1971 of the panel committee cease to exist. If so, the original order dated 17th March, 1970 of the panel committee constituting a panel consisting of Tirumathi Vedavalli and the appellant in W.A. No. 347 of 1972 will stand. In the impugned order, the panel committee has just preserved this position. We have extracted the impugned order already. That order cancels the order passed by the panel committee on 29th October, 1971, consequent upon the order of the Director of School Education dated 21st October, 107r, and restores its original order dated 17th March, 1970 constituting a panel for 1969-70 comprising of Tirumathi S. Vedavalli and the appellant in W.A. No. 347 of 1972. Though this order was really superfluous, because that was the result of the orders of this Court quashing the order of the Director of School Education dated 21st October, 1971 and the consequential order of the panel committee dated 29 th October, 1971, on the ground of superfluity, it is not necessary to quash the said order.

7. However, Mr. K. K. Venugopal, learned Counsel for the petitioner, put forward two arguments in support of his contention that this order has to be quashed. One is, Ramaprasada Rao, J., in his observations in the judgment in W.P. No. 85 of 1972, directed the panel committee to constitute a panel afresh, after giving an opportunity to all the parties concerned and that procedure has not been followed. The second is, the impugned order was passed only by the Chief Educational Officer and not by the panel committee consisting of the Chief Educational Officer and the Inspectress of Schools.

8. As far as the first argument is concerned, we are unable to hold that Ramaprasada Rao, J., in his judgment in W.P. No. 85 of 1972 gave a direction to the panel committee to go into the panel for 1969-70 afresh after giving an opportunity to all the parties concerned. Expressly the learned Judge's order quashed the order of the Director of School Education dated 21st October, 1971 and the order of the panel committee dated 29th October, 1971. The learned Judge did not either expressly or by implication interfere with the order dated 17th March, 1970 of the panel committee, namely the original order. We may also point out that the learned Judge could not have interfered with that order, because Tirumathi Vedavalli, who was one of the persons included in the panel and who was ranked as No. 1, was not a party in W.P. No. 85 of 1972 and consequently she had no opportunity of putting forward her case in support of that order of the panel committee. Therefore, all that the learned Judge should have intended to do when he made the observations extracted above was to point out that the Director of School Education will be at liberty to go into the matter afresh, because the learned Judge had quashed the order only on the ground that he had passed the order without giving an opportunity to the appellant in the writ appeal and had held that the Director of School Education had jurisdiction to entertain the appeal and deal with the same. But we have held that, the Director of School Education had no such jurisdiction. Consequently, in our opinion, the observations made by the learned Judge in his judgment in W.P. No. 85 of 1972 which we have extracted already, cannot be given effect to, in view of our conclusion in the writ appeal.

9. As far as the second argument is concerned, no such case has been put forward at any stage so far and in all these proceedings, the parties have proceeded on the basis that the orders were passed only by the panel committee consisting of the Chief Educational Officer and the Inspectress of Schools and not exclusively by the Chief Educational Officer. Even in the affidavit filed in support of W.P. No. 2066 of 1972, no such case has been put forward and therefore the respondents had no opportunity of explaining the position with reference to any such allegation and consequently we are not able to entertain such an argument at this stage.

10. The result is, the writ petition fails and is dismissed. We make it absolutely clear that we do not express any opinion on the merits as to the correctness or otherwise of the panel prepared by the panel committee originally on 17th March, 1970 for the year 1969-1970.

11. There will be no order as to costs either in the writ appeal or in the writ petition.


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