Madras High Court
The Government Of Tamil Nadu vs Mrs. Immaculate Arputha Mary Usha on 29 February, 2024
Author: R. Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
WA. Nos.1093 of 2023 & 630 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.02.2024
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal Nos. 1093 of 2023 and 630 of 2024
and
CMP Nos. 11104 and 4448 of 2024
---
W.A.No.1093 of 2023:
1. The Government of Tamil Nadu,
Rep. by its Secretary,
Education Department,
Chennai - 600 002.
2. The Director of School Education,
DPI Campus, College Road,
Chennai - 600 006.
3. The Chief Educational Officer,
Erode District. Erode.
4. The District Educational Officer,
Gobichettipalayam, Erode District.
5. The District Educational Officer,
Bhavani, Erode District. .. Appellants
Versus
1. Mrs. Immaculate Arputha Mary Usha,
St. Michael's High School,
Michael Palayam P.O., Anthiyur Via,
Erode District - 638 501.
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WA. Nos.1093 of 2023 & 630 of 2024
2. The Bishop and the General Manager,
The Diocese of Ooty.
3. St.Michael High School,
Rep.by its Correspondent,
Michael Palayam P.O.,
Anthiyur via, Erode District - 638 501. .. Respondents
WA No. 1093 of 2023: Writ Appeal filed under Clause 15 of Letters
Patent praying to set aside the order dated 08.02.2022 passed by the learned
Judge in W.P. No.16977 of 2018.
For Appellants : Mr. U.M. Ravichandran,
Special Government Pleader
For R1 : Mr. R. Ramana
For R2 & R3 : Ms. Arulmary
for M/s. Father Xavier Associates
W.A.No.630 of 2024:
1. The State Government of Tamil Nadu,
represented by the Secretary to Government,
Education Department,
Fort St.George, Chennai - 600 009.
2. The Joint Director of School Education,
College Road, Chennai - 600 006.
3. The Chief Educational Officer,
Cheranmahadevi at Tirunelveli.
4. The District Educational Officer,
Cheranmahadevi at Tirunelveli. .. Appellants
Versus
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WA. Nos.1093 of 2023 & 630 of 2024
1. P. Andaperumal,
B.T.Assistant,
C.M.S.Evangelicalsuvi David Memorial,
Higher Secondary School,
Karisal, Karisalpatti PO.,
Tiruvelnelveli District. Pin 627 414.
2. The Correspondent,
C.M.S.Evangelicalsuvi David Memorial,
Higher Secondary School,
Karisal, Karisalpatti PO.,
Tiruvelnelveli District. Pin 627 414. .. Respondents
WA No. 630 of 2024:- Writ Appeal filed under Clause 15 of Letters
Patent praying to set aside the order dated 28.03.2023 passed by the learned
Judge in W.P. No.40722 of 2015.
For Appellants : Mr. U.M. Ravichandran,
Special Government Pleader
For Respondents : Mr. S.N. Ravichandran
COMMON JUDGMENT
(Judgment of the Court was made by R. MAHADEVAN, J) These appeals are filed by the appellants / Education Authorities, against the identical, but different orders passed by the learned Judges. While Writ Appeal No. 1093 of 2023 arises from the order dated 08.02.2022 passed in WP No. 16977 of 2018, Writ Appeal No. 630 of 2024 is filed assailing the order dated 28.03.2023 in WP No. 40722 of 2015.
https://www.mhc.tn.gov.in/judis 3/14 WA. Nos.1093 of 2023 & 630 of 2024 Writ Appeal No. 1093 of 2023
2. According to the first respondent/writ petitioner, she was appointed to the post of B.T. Assistant (Science) in the third respondent School namely St.Michael High School, which is a minority institution, against the approved vacancy due to the resignation of a Secondary Grade Teacher (Science) in the School. However, when approval of her appointment was sought, the appellant authorities rejected it on the ground that prior permission was not obtained from them before converting the secondary grade post into one of B.T. Assistant post, in which the first respondent/writ petitioner was appointed. Challenging the order of rejection dated 23.05.2018 the first respondent/writ petitioner has filed WP No. 16977 of 2018.
3. Before the writ court, it was contended on behalf of the first respondent/writ petitioner that she was appointed in a minority institution and therefore, as per the catena of decisions rendered by this Court, prior permission is not mandatory to be obtained from the educational authorities before converting the post. This submission was refuted by the appellants by placing reliance on G.O. Ms. No.144, School Education Department dated 04.07.2008 and contended that obtaining prior permission before converting the secondary grade teacher post into one of B.T. Assistant is essential. https://www.mhc.tn.gov.in/judis 4/14 WA. Nos.1093 of 2023 & 630 of 2024
4. The learned Judge, on considering the rival submissions, placed reliance on the decision of the Division Bench of this Court in the case of Government of Tamil Nadu, rep. by its Secretary to Government, Department of School Education, Madras and others vs. J. Remila and others [2018 (1) Writ Law Reporter 410] and held that obtaining prior permission is not mandatory in respect of the minority institution. The learned Judge also held that the order passed by the Government in G.O. Ms. No. 144 dated 04.07.2008 cannot be used as a tool to interfere with the administration of the minority institution. Accordingly, the learned Judge allowed Writ Petition No. 16977 of 2018, which is questioned in this writ appeal by the authorities. WA No. 630 of 2024
5. According to the first respondent/writ petitioner, he was appointed as Secondary Grade Teacher in the second respondent school pursuant to dismissal of the Secondary Grade Teacher by name C. Shanthi on 31.10.2000. However, when the approval of his appointment was sought, it was rejected by the appellants on the ground that the order of dismissal passed against the said C. Shanthi is the subject matter of legal proceedings. Therefore, pending litigation, appointment of another teacher viz., the first respondent is not proper. Subsequently, the litigation in relation to the https://www.mhc.tn.gov.in/judis 5/14 WA. Nos.1093 of 2023 & 630 of 2024 dismissal of the said Shanthi came to an end on 30.04.2022 and therefore, the first respondent was re-appointed as Middle Grade Graduate Teacher on 19.06.2002 by placing reliance on G.O. Ms. No.79 dated 14.06.2002. When the appointment of the first respondent was sought to be ratified, it was once again rejected by the appellants by an order dated 02.02.2006 stating that there is no provision to appoint a Middle Grade Graduate Teacher without the permission of the Government. However, approval was given for appointment of the first respondent as Junior Grade B.T. Assistant in the consolidated pay of Rs.4,000/- with effect from 01.06.2003, by passing an order dated 02.02.2006. Aggrieved by the same, the first respondent submitted a representation seeking to approve his appointment as Middle Grade Graduate Teacher with effect from 19.06.2002, but it was rejected by the appellant authorities. Aggrieved by the said order, the first respondent has filed WP No. 40722 of 2015.
6. Before the writ court, it was contended on behalf of the first respondent / writ petitioner that the second respondent school is a minority institution and therefore, obtaining prior permission is not mandatory either for upgrading or conversion of a post as per G.O. Ms. No.79 dated 14.06.2002. Reliance was also placed on the decision of this Court in S. Joseph Vijaya vs. https://www.mhc.tn.gov.in/judis 6/14 WA. Nos.1093 of 2023 & 630 of 2024 The Chief Educational Officer [WP (MD) No. 3579 of 2017 and WP (MD) No. 16333 of 2016 dated 12.07.2017]. On the other hand, on behalf of the appellants, it was contended that the first respondent/writ petitioner was originally appointed on 19.11.2000 as Secondary Grade Teacher. To avail the benefit of G.O. Ms. No.79, School Education Department dated 14.06.2002, he was re-appointed in the same post on 19.06.2002 without obtaining prior permission of the Government by converting the vacant post of Secondary Grade Teacher as Middle Grade Graduate Teacher. Above all, it was contended that as per the amendments made to the Tamil Nadu Pension Rules, those whose service was regularised after 31.03.2003 are not entitled for payment of pension. Therefore also, the appointment of the first respondent/writ petitioner with retrospective effect from 19.06.2002 cannot be considered.
7. The learned Judge, after hearing both sides, held that denial of approval of appointment of the first respondent/writ petitioner, as Middle Grade Graduate Teacher with effect from 19.06.2002 cannot be countenanced as it amounts to discrimination and violation of Article 14 of the Constitution of India. Accordingly, the learned Judge allowed the writ petition and directed the appellants to approve the appointment of the first respondent/writ https://www.mhc.tn.gov.in/judis 7/14 WA. Nos.1093 of 2023 & 630 of 2024 petitioner with effect from 19.06.2002 as Middle Grade Graduate Assistant and to grant all consequential benefits to him by counting the past service from 19.06.2002 to 31.05.2006, for the purpose of old pension scheme. Aggrieved by the same, this writ appeal came to be filed by the authorities. Appellants' contention in these appeals
8. The learned Special Government Pleader appearing for the appellants, in respect of WA.No.630 of 2024, submitted that as per G.O. Ms. No.79, School Education Department dated 14.06.2002, prior permission has to be obtained for conversion of secondary grade teacher post. Further, such conversion must be based on the subject roaster. In any event, the second respondent school has not followed any of the guidelines issued by the Government from time to time while filling up the vacant post in their school by appointing the first respondent from 19.06.2002 and therefore, his appointment itself is illegal. However, taking a humanitarian view, the first respondent passed an order dated 02.02.2006, permitting the first respondent to continue in the post as Junior Grade B.T. Assistant in the consolidated pay of Rs.4,000/- with effect from 01.06.2003 as per G.O. Ms. No.130, School Education Department dated 17.09.2004. The first respondent as well as the second respondent accepted the order dated 02.02.2006 as the first respondent https://www.mhc.tn.gov.in/judis 8/14 WA. Nos.1093 of 2023 & 630 of 2024 continued in the post of Junior Grade B.T. Assistant on consolidated pay atleast for a period of 9 years. After a period of 8 years, on 28.06.2014, 21.08.2014, 30.08.2014 and 16.10.2014, representations were made to approve the appointment of the first respondent/writ petitioner in the post of Middle Grade Graduate Teacher with effect from 19.06.2002. Taking note of the same, the appellant authorities passed the order of rejection. While so, the direction issued by the learned Judge, to approve the appointment of the first respondent with retrospective effect from 19.06.2002 and to bring him in the pensionary establishment is required to be interfered with by this Court. It is also submitted that the Government had imposed a cut off date for payment of pension under the Old Pension Scheme with effect from 31.03.2003. Any appointment made on or after 01.04.2003 will be brought in the non- pensionable establishment and to this effect, amendments were made to Tamil Nadu Pension Rules. In this regard, the learned counsel placed reliance on the Full Bench decision of this court in Government of Tamil Nadu rep. By its Secretary to Government, Public Works Department, v. R.Kaliyamoorthy [2019 (6) CTC 705 = 2020 (2) MLJ 369]. Notwithstanding the same, the learned Judge directed the appellants to regularise the service of the first respondent/writ petitioner with effect from 19.06.2002 as Middle Grade Graduate Assistant and to grant all consequential benefits to him by counting https://www.mhc.tn.gov.in/judis 9/14 WA. Nos.1093 of 2023 & 630 of 2024 the past service from 19.06.2002 to 31.05.2006, for the purpose of old pension scheme.
8.1. In respect of WA No.1093 of 2023, the learned Special Government Pleader appearing for the appellants submitted that without getting permission for the conversion of post from the Government, the respondent school appointed the first respondent / writ petitioner on 01.11.2010 and sought for approval for appointment, which is against the Government Order and it is for the respondent school to pay salary to the first respondent for the period which they did not get approval from the Government. However, the learned Judge erred in allowing the writ petition, by directing the appellants to approve the appointment of the first respondent with effect from 01.11.2010, which is the date of her appointment with all consequential benefits, by the order impugned in this appeal, which will have to be set aside by this court.
9. On the other hand, the learned counsel appearing for the first respondent / writ petitioner and the respondent institutions in both the appeals, submitted that the learned Judges after analysing the entire facts and circumstances of the cases, have rightly passed the impugned orders, which do not require any interference at the hands of this court. https://www.mhc.tn.gov.in/judis 10/14 WA. Nos.1093 of 2023 & 630 of 2024
10. We have heard the learned counsel appearing on either side and also perused the materials available on record.
11. The main contention of the learned Special Government Pleader appearing for the appellants is that without prior permission from the appellants, the respondent Institutions cannot make appointment of the respective first respondents in the schools.
12. Admittedly, the respondent institutions are minority institutions. Therefore, the prior permission for conversion of post / appointment of teacher is not mandatory. A Division Bench of this Court in the judgment dated 14.08.2020 passed in Writ Appeal (MD) No. 201 of 2020 (The Director of School Education, College Road, Chennai and others vs. The Correspondent, St. Joseph's Higher Secondary School, Kovilpatti, Tuticorin), after analysing the decisions in the field, has categorically held that interfering with the over all administrative control of the minority institutions in relation to appointment of its staff by the educational authority would amount to abridging or diluting their right to establish and administer their educational institution. It was also held that when once an appointment was made to the sanctioned post or an approved post, prior approval from the educational authorities is not https://www.mhc.tn.gov.in/judis 11/14 WA. Nos.1093 of 2023 & 630 of 2024 necessary. The said decision of the Division Bench of this Court squarely applies to the present cases.
13. The respective first respondents / writ petitioners were appointed in a sanctioned post or an approved post in the minority institutions. It is not in dispute that the respective first respondents are in possession of the required educational qualification to hold the post. While so, it is no longer open to the appellants to deny approval of their appointment. Therefore, following the decision of the Division Bench of this Court mentioned supra, we hold that the appointment of the respective writ petitioners / first respondents in these appeals is proper and the orders of the learned Judges do not call for any interference.
14. Accordingly, both the writ appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[R.M.D., J.] [M.S.Q., J.]
29.02.2024
Index : Yes / No
Internet : Yes / No
av
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WA. Nos.1093 of 2023 & 630 of 2024
To
1. The Secretary, Government of Tamil Nadu,
Education Department,
Chennai - 600 002.
2. The Director of School Education,
DPI Campus, College Road,
Chennai - 600 006.
3. The Chief Educational Officer,
Erode District. Erode.
4. The District Educational Officer,
Gobichettipalayam, Erode District.
5. The District Educational Officer,
Bhavani, Erode District.
6. The Chief Educational Officer,
Cheranmahadevi at Tirunelveli.
7. The District Educational Officer,
Cheranmahadevi at Tirunelveli.
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WA. Nos.1093 of 2023 & 630 of 2024
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
av
Writ Appeal Nos.1093 of 2023 and 630 of 2024
and
CMP.Nos.11104 and 4448 of 2024
29.02.2024
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