Madras High Court
Kothandaraman High School vs The Director Of School Education on 6 January, 2020
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.101 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2020
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
W.P.Nos.101, 103 and 105 of 2020
and
W.M.P.Nos.120, 123 and 126 of 2020
Kothandaraman High School,
Rep. by its Correspondent,
Uthukottai 602 026. .. Petitioner in all W.P's
vs
1.The Director of School Education,
D.P.I.Buildings, College Road,
Chennai - 6.
2.The Chief Educational Officer,
Thiruvallour -602001.
3.The District Educational Officer,
Avadi. .. Respondents in all W.P's
Prayer in W.P.No.101 of 2020: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus,
calling for the entire records connected with impugned order passed by the
second respondent vide O.Mu.No.1074/Aa5/2019, dated 11.2019, signed
on 04.11.2019 and quash the same and directing the second respondent to
approve the appointment of Tmt.S.Shanthakumari, as Junior Assistant
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W.P.No.101 of 2020
w.e.f. 29.11.2018, with all consequential monetary benefits, on the basis of
proposal submitted by the petitioner school dated 05.12.2018.
Prayer in W.P.No.105 of 2020: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus,
calling for the entire records connected with impugned order passed by the
second respondent vide O.Mu.No.8592/Aa5/2019, dated 05.2019, signed
on 10.05.2019 and quash the same and directing the second respondent to
approve the appointment of Tmt.B.Susila, as Sweeper w.e.f. 29.11.2018,
with all consequential monetary benefits, on the basis of proposal
submitted by the petitioner school dated 05.12.2018.
Prayer in W.P.No.103 of 2020: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus,
calling for the entire records connected with impugned order passed by the
second respondent vide O.Mu.No.1075/Aa5/2019, dated 11.2019, signed
on 04.11.2019 and quash the same and directing the second respondent to
approve the appointment of Thiru.P.Rakesh, as Watchman w.e.f.
29.11.2018, with all consequential monetary benefits, on the basis of
proposal submitted by the petitioner school dated 05.12.2018.
For Petitioner : Mr.S.N.Ravichandran [in all W.P's]
For Respondents : Mrs.V.Annalakshmi [in all W.P's]
Government Advocate
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W.P.No.101 of 2020
COMMON ORDER
These Writ Petitions have been filed challenging the impugned proceedings of the second respondent dated 04.11.2019 and for consequential direction to the second respondent to approve the appointments of the petitioners with all consequential monetary benefits.
2. Based on the consent given by both sides and also considering the limited issue that is involved in all these Writ Petitions, the Writ Petitions are taken up for final hearing.
3. The case of the petitioner is that, three non teaching vacancies arose in the school and the petitioner school has sought for permission from the second respondent to fill up the vacancies. The second respondent by his proceedings dated 27.09.2018, 04.10.2018 and 22.10.2018 granted permission to the petitioner school to fill up the post of Junior Assistant, Watchman and Sweeper. The petitioner school, thereafter, issued advertisement and based on the list furnished by the Employment Exchange, proceeded further with the selection and by virtue of the appointment orders dated 26.11.2018, appointed a Junior Assistant, 3/12 http://www.judis.nic.in W.P.No.101 of 2020 Watchman and Sweeper and all the three persons joined the duty.
4. The petitioner, thereafter, sent a proposal for the approval of the persons who were appointed on 05.12.2018. The second respondent rejected the approval of the appointment that was made on the ground that the post are to be filled up with the surplus staff available in the other aided Schools. Aggrieved by the same, the present Writ Petitions have been filed before this Court.
5. Mr.S.N.Ravichandran, learned counsel appearing on behalf of the petitioner submitted that all the three posts were filled up after getting approval from the second respondent and the selection was conducted by publishing an advertisement and calling for the list from Employment Exchange. The learned counsel submitted that the second respondent has rejected the approval based on a subsequent G.O. which came to be passed and which is sought to be given a retrospective effect. Learned counsel further submitted that the issue involved in this Writ Petition is squarely covered by an earlier decision rendered by this Court in K.Balamurugan Vs. The State of Tamil Nadu and four others in W.P.No.23950 of 2018, dated 25.06.2019. The learned counsel submitted 4/12 http://www.judis.nic.in W.P.No.101 of 2020 that the impugned order passed by the second respondent requires interference and direction must be given to the second respondent to approve the appointment made by the petitioner.
6. Per contra, Mrs.V.Annalakshmi, learned Government Advocate, appearing on behalf of the respondents submitted that the present appointment is governed by G.O.Ms.No.238 dated 13.11.2018. Learned Counsel submitted that as per the said G.O., the appointment can be made only after accommodating the surplus staff who are available in other aided schools. Learned counsel submitted that as on today, there are surplus staff, who are available, to be accommodated in the other aided schools where there is vacancy. Learned counsel submitted that the approval for the appointment was rejected by the second respondent only based on this G.O.Ms.238 dated 13.11.2018 and therefore, the order passed by the second respondent does not require any interference.
7. This Court has carefully considered the submissions made by either side and perused the entire materials available on record.
8. Before this Court ventures into considering the merits of the case, 5/12 http://www.judis.nic.in W.P.No.101 of 2020 it will be beneficial to rely upon the judgment that has been cited by the learned counsel for the petitioner in K.Balamurugan Vs. The State of Tamil Nadu and four others in W.P.No.23950 of 2018, dated 25.06.2019, referred supra.
The relevant paragraphs of the judgment are extracted hereunder:
“...9. The learned counsel for the petitioner would also rely on the decision of this Court reported in (2007) 4 MLJ 561 (A.Murugesan V. State of Tamil Nadu, rep. By its Secretary, Department of School Education, Chennai and others), wherein the learned counsel would draw the attention of this Court to the following passage in support of his contention that for non- teaching staff, there is no provision in the Act or Rules for getting prior permission which is extracted hereunder:
“6. ... As far as non-teaching staff are concerned, as rightly contended by the learned counsel for the petitioner, there is no provision for seeking prior permission for making an appointment cannot be held as not in conformity with the provisions of the Private Schools Regulation Act.” 6/12 http://www.judis.nic.in W.P.No.101 of 2020
10.This Court has considered the submissions made on behalf of the petitioner as well as the learned Government Advocate for respondents 1 to 4.
11.From the facts as mentioned above and also the legal principle as relied on by the learned counsel for the petitioner, it becomes very clear that as far as the appointment of the non- teaching staff is concerned, either the Tamil Nadu Recognised in Private Schools (Regulation) Act or Rules provide for any such requirement and therefore, the rejection order stating that the School has not obtained prior permission, would be per se illegal and cannot be sustained in law.
12.Moreover, as far as the facts of this case are concerned, the original proposal was forwarded by the School on 26.02.2018 itself i.e., much prior to the coming into force the G.O.Ms.No.101 dated 18.05.2018.
Therefore, even assuming for the sake of argument that the requirement is mandatory, such requirement cannot be pressed into service as far as the present appointment of the petitioner is concerned. Therefore, on facts, this 7/12 http://www.judis.nic.in W.P.No.101 of 2020 Court is of the view that the appointment of the petitioner prior to coming into force of G.O.Ms.No.101 dated 18.05.2018 cannot be unsettled only on the basis of requirement which is made mandatory subsequent to the proposal. This Court when enquired with the Government Advocate as to what was the prevailing situation before 18.05.2018 that whether any such requirement was there in any Government Orders, there was no specific answer or material produced except stating that there was such requirement prior to 18.05.2018.
13.Even otherwise, as far as the above cited decisions are concerned, the ratio laid down thereon and the observations made by the Division Bench of this Court as well as the learned Single Judge, it emerges that unless the Act or Rules are amended correspondingly in line with the Government Orders, the same cannot be insisted upon by the authorities. In fact, the learned Judge of this Court, in one of the aforesaid decisions, has held that such requirement cannot be insisted upon for appointment of the non-teaching staff, since nothing has 8/12 http://www.judis.nic.in W.P.No.101 of 2020 been provided in the Act or Rules for complying with such requirement. Therefore, in all fours, the petitioner has made out a clear case for grant of relief. The objection of the official respondents has no legs to stand and the same has to be rejected as without any merits or substance.
14. For the above said reasons, this Court is of the considered view that the impugned proceeding is liable to be quashed and therefore, the order of the 4th respondent in Na.Ka.No.3469/A2/ 2018 dated 24.07.2018 is hereby set aside. The 4th respondent is directed to grant approval to the appointment of the petitioner as Lab Assistant in the 5th respondent School and disburse the grant- in-aid towards salary and allowances with effect from the date of his appointment i.e. 26.02.2018. The consequential order is to be passed by the authorities within a period of four weeks from the date of receipt of a copy of this order.”
9. It is clear from the above judgment that in so far as non teaching staff are concerned, there is no requirement for seeking prior permission 9/12 http://www.judis.nic.in W.P.No.101 of 2020 for making any appointment. In order to come to such a conclusion, the learned Single Judge has relied upon the judgment of the Division Bench. The learned Single Judge had also recorded that a similar order was passed and had directed the authority to grant approval to the appointment of non teaching staff in the concerned school.
10. In the considered view of this Court, the above judgment will squarely apply to the facts of the present case. In fact, the petitioner school is placed in a better footing in the present case. The petitioner school has approached the second respondent even before proceeding further with the appointment and had sought for permission to fill up the posts. The second respondent had granted permission to fill up the post of non- teaching staff by his proceedings dated 27.09.2018, 04.10.2018 and 22.10.2018 respectively. Only after obtaining such a permission, the petitioner school had proceeded to call for applications and thereafter, it has appointed a Junior Assistant, Watchman and Sweeper on 26.11.2018. Therefore, the approval for the appointment only becomes a formality since even before the appointment, approval was granted by the second respondent. Even on this ground, the impugned proceedings of the second respondent is liable to be interfered with. 10/12 http://www.judis.nic.in W.P.No.101 of 2020
11. For the above stated reasons, this Court is of the considered opinion that the impugned proceedings of the second respondent dated 04.11.2019 is liable to be quashed and accordingly, the same is quashed. The second respondent is directed to grant approval to the appointments made by the petitioner school to the post of Junior Assistant, Watchman and Sweeper and disburse the grant-in-aid towards salary and allowances with effect from the date of appointment. The consequential orders shall be passed within a period of four weeks from the date of receipt of a copy of this order.
12. All the above Writ Petitions are allowed with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.
06.01.2020 bkn Index : Yes Speaking order Note: Issue order copy by 20.01.2020 11/12 http://www.judis.nic.in W.P.No.101 of 2020 N.ANAND VENKATESH. J., bkn To
1.The Secretary to Government of Tamil Nadu, Public Works Department, Fort St.George, Chennai – 600 009.
2.The Chief Engineer (WRD & General), Public Works Department, Chepauk, Chennai – 600 005.
3.The Chief Engineer (WRD), Water Resource Department, Madurai Zone, Thalakkulam, Madurai – 625 002.
W.P.Nos.101, 103 and 105 of 2020 and W.M.P.Nos.120, 123 and 126 of 2020 06.01.2020 12/12 http://www.judis.nic.in