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R. Mariantony Vs. the Government of Tamil Nadu Represented by the Assistant Secretary, Education Department and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1980)1MLJ526
AppellantR. Mariantony
RespondentThe Government of Tamil Nadu Represented by the Assistant Secretary, Education Department and ors.
Excerpt:
- .....to their proceedings no. 16 of 1969-70, dated 30th july, 1975, of the second respondent- the joint director of school education (secondary education) relating to his proceedings d.dis. no. 183433/g7/75, dated 15th april, 1976 and of the government of tamil nadu, the first respondent, relating to their memo. no. 90489/d1/76, dated 18th december, 1976 and quashing the orders in the memo. dated 18th december, 1976 and for passing further or other orders as may be deemed fit and proper in the circumstances of the case.2. the petitioner was employed as headmaster in the third respondent-high school. disciplinary proceedings were started against him on 16th september, 1966. during the pendency of those proceedings the tamil nadu recognised private schools regulation act, 1973 came into.....
Judgment:
ORDER

A. Varadarajan, J.

1. This writ petition has been filed under Article 226 of the Constitution of India for the issue of a writ of certiorari calling for the records of the third respondent-the Management of the Orappanavillai High School, Ramavarmapuram, Nagercoil relating to their proceedings No. 16 of 1969-70, dated 30th July, 1975, of the second respondent- the Joint Director of School Education (Secondary Education) relating to his proceedings D.Dis. No. 183433/G7/75, dated 15th April, 1976 and of the Government of Tamil Nadu, the first respondent, relating to their memo. No. 90489/D1/76, dated 18th December, 1976 and quashing the orders in the memo. dated 18th December, 1976 and for passing further or other orders as may be deemed fit and proper in the circumstances of the case.

2. The petitioner was employed as Headmaster in the third respondent-High School. Disciplinary proceedings were started against him on 16th September, 1966. During the pendency of those proceedings the Tamil Nadu Recognised Private Schools Regulation Act, 1973 came into force. On 13th July, 1975 the petitioner's services were terminated by the third respondent on the basis of the finding in the enquiry held against him in the said disciplinary proceedings. The petitioner filed an appeal under the said Act before the second respondent, the Joint Director of School Education (Secondary Education) evidently under Section 23 of the Act (against the order of dismissal passed under Section 22 of the Act) without however mentioning the provision of law under which the appeal was filed. The appeal was dismissed by the second respondent on 15th April, 1976. Without preferring a second appeal to the Tribunal constituted by the Government under Section 42 of the Act, the petitioner filed a revision petition under Section 45 of the Act as though the appeal filed by him before the second respondent was filed under Section 41 of the Act against the order of the competent authority. The revision petition was dismissed by the Government, the first respondent, on 18th December, 1976 on the ground that the revision petition filed under Section 45 of the Act could not be entertained under the existing rules. This writ petition has been filed for quashing that order.

Section 22 of the Act lays down,

Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority.

Section 23 of the Act provides for an appeal against orders of punishment imposed on teachers or other persons employed in private schools and Clause (a) of that section says that any teacher or other person employed in any private school who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated by any order, may prefer an appeal against such order to such authority or officer as may be prescribed; and different such authorities or officers may be prescribed for different classes of private schools. Rule 18 framed under the Act deals with appeal against orders of punishment imposed on teachers and other persons employed in private schools and Clause (b) of that rule says that the competent authority to whom an appeal under Section 23 of the Act shall lie from any teacher or person employed in a private school against any order of dismissal, removal or reduction in rank or whose appointment is otherwise terminated or whose pay and allowances or any of whose conditions of service are altered shall be the Joint Director of School Education (Secondary Education). Therefore, the petitioner should have filed an appeal under Section 23 of the Act read with Rule 18(b) only to the Joint Director of School Education (Secondary Education) against the order of dismissal passed under Section 22 of the Act. Under Section 24 an appeal lies to the Tribunal against the appellate order of the Joint Director. Section 41 of the Act provides for appeals against orders of competent authority and says:

Any person aggrieved by any order, decision or direction of the competent authority under any provision (other than Section 34) of this Act may prefer an appeal against such order, decision or direction to such authority or officer as may be prescribed; and different such authorities or officers may be prescribed for different classes of private schools.

Section 45 of the Act provides for revision and says:

The Government may call for and examine the record of any authority or officer prescribed for the purpose of Section 41 in respect of any proceedings to satisfy themselves as to the regularity of such proceeding or correctness, legality or propriety of any order made, decision taken or direction issued therein; and, if, in any case, it appears to the Government that any such order, decision or direction should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly.

It is not possible to hold that merely because the approval of the competent authority had not been obtained or improperly granted that alone can be questioned by filing an appeal under Section 41 of the Act when that approval has been followed before any such appeal was filed under Section 41 of the Act by an order of dismissal under Section 22 of the Act. Therefore, it is not possible to agree with the learned Counsel for the petitioner that the appeal filed against the order of dismissal before the second respondent must be held to have been a valid appeal filed under Section 41 of the Act and that the revision under Section 45 of the Act lies against the order of the joint Director of School Education (Secondary (Education) dismissing the appeal. Only an appeal should have been filed before the Tribunal under Section 24 of the Act against the order of the Joint Director.

3. Section 43 of the Act deals with the time for appeal and the powers of the appellate authority. Clause (1) of that section says:

No appeal under any provision of this Act shall be preferred after expiry of one month from the date on which the order, decision or direction appealed against, was received by the appellant.

The appellate authority has discretion under the proviso to Clause (1) of Section 43 to allow further time not exceeding one month for preferring any such appeal if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.

4. The learned Counsel for the petitioner requests that some observation may be made in this judgment to enable the appellate tribunal to excuse the delay in filing second appeal under Section 24 of the Act on the ground that the petitioner has been wrongly prosecuting the remedies before the Government and this Court. It is not necessary for this Court to make any such observation. It is open to the petitioner to move the tribunal for excusing the delay by setting out the various circumstances and it is entirely for the tribunal to decide whether the delay could be excused under the proviso to Section 43 of the Act or otherwise having regard to the various circumstances of the case. There is no merit in this writ petition and it is dismissed with the third respondent's costs. Advocate's fee Rs. 100. Respondents 1 and 2 will bear their respective costs.


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