Madras High Court
The Director Of School Education vs Dbtr National Higher Secondary School on 3 August, 2021
Bench: Pushpa Sathyanarayana, Krishnan Ramasamy
W.A.No.42/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.42 of 2021
1. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
2. The Chief Educational Officer,
Nagapattinam District,
Nagapattinam.
3. The District Educational Officer,
Mayiladuthurai Educational District,
Nagapattinam District. .. Appellants/Respondents
Vs.
DBTR National Higher Secondary School,
Mayiladuthurai-609 001,
Nagapattinam District,
rep. by its Secretary and Correspondent,
J.R.Ramamurthy,
S/o.J.Ranganatha Iyer .. Respondent/Petitioner
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 07.02.2020 in W.P.No.2893 of 2019.
***
For Appellants : Mr.R.Neelagandan
State Government Counsel
For Respondent : Mr.G.Sankaran
https://www.mhc.tn.gov.in/judis/
Page 1/9
W.A.No.42/2021
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
This intra-court appeal is preferred by the Government against the order quashing the order of the second appellant dated 25.06.2019 and directing the appellants to approve the appointment of non-teaching staff, who were appointed in the sanctioned post by the writ petitioner school.
2. The Writ Petitioner School (hereinafter referred to as “the School”) is an aided school under the Tamil Nadu Recognised Private Schools Act, 1973. There were number of vacancies in non-teaching staff sanctioned to the petitioner School from the year 2003 onwards. The same could not be filled up, in view of the ban on recruitment issued by the Government followed in G.O.Ms.No.115, dated 30.05.2017. Subsequently, the said Government Order was quashed in W.P.(MD) No.11481 of 2008. After the ban was lifted, considering the need for filling up of non-teaching staff posts, the School had initiated the process of selection, by calling for the list of eligible candidates from the employment exchange during April, 2018, apart from issuing an advertisement for selection for the posts of Sweeper, Night Watchman, Scavenger, Junior Assistant and Office Assistant in newspaper. After the selection process was over, the appointment of non-teaching posts have https://www.mhc.tn.gov.in/judis/ Page 2/9 W.A.No.42/2021 been made on 01.10.2018 for the posts of three Junior Assistants, one Office Assistant, one Sweeper, one Scavenger and one Office Assistant and they were all issued with the appointments order and also joined the posts on 01.10.2018 and they have been working in the school. Immediately, after the appointment, the proposal was sent to the second appellant through the third appellant on 01.12.2018 furnishing all the relevant particulars and documents of the selected persons. The same was returned by the appellants on 25.06.2019 on the ground that no prior permission was obtained to fill up the posts of non-teaching staff. Secondly, it was also stated that as per G.O.Ms.No.238, School Education Department, dated 13.11.2018, the vacancies in the posts of non- teaching staff are to be filled up only from the surplus staff working in other aided schools. The same is questioned in the writ petition.
3. The said question is no longer res integra, as the same has been decided in W.P.Nos.101, 103 and 105 of 2020 dated 06.01.2020 (Kothandaraman High School V. The Director of School Education and others) by the learned Single Judge and following his own decision, directions were issued to the second respondent therein/second appellant herein to consider the proposal sent by the School and pass orders.
4. The learned Government Counsel appearing on behalf of the https://www.mhc.tn.gov.in/judis/ Page 3/9 W.A.No.42/2021 appellants pointed out the following irregularities in the said appointments :
(a) The posts of the Night Watchman and Office Assistant are governed by the Basic Services Rules and for the said posts, it was notified as OC and thus, the Rule of reservation was not adopted properly;
(b) The advertisement inviting applications for appointment was not published in two daily newspapers and it was published in only one daily newspaper, which is violative of the earlier orders of this Court ; and
(c) The details of the age, educational qualification, community, etc., of the candidates who appeared for the interview have not been recorded in the minutes of the interview and therefore, the merit and ability of the candidates have not been considered properly ;
5. The learned Government Counsel placed reliance on Section 35(2) of the Tamil Nadu Recognition Private School Regulation Act, 2018, which reads as follows :
"35.(2) No process of recruitment of teaching and non- teaching staff of any aided school shall be initiated without the prior permission of the competent authority."
6. We are of the view that all the above objections raised by the learned Government Counsel will not hold water, as these objections were raised only for the first time in this appeal. The above referred https://www.mhc.tn.gov.in/judis/ Page 4/9 W.A.No.42/2021 enactment, i.e., the Tamil Nadu Recognition Private School Regulation Act, 2018, which though has got the assent of the Hon'ble President of India, is yet to be notified, as the rules are not made ready and therefore, the same will not render any assistance to the appellants, before the Act is notified.
7. Next comes the question of G.O.Ms.No.238, dated 13.11.2018. The said Government Order is also of no avail to the appellants, as the appointments were made by the School as early as on 28.09.2018 and all the non-teaching staff had joined duty on 01.10.2018, much prior to the issuance of the above said Government Order. The above said Government Order relates to non-teaching staff and how the vacancies have to be filled etc. Clause (ix) of the said Government Order states that "...if the staff is appointed and is in service those staff by way of retirement, promotion, death and in such reasons when the vacancy arises, those posts will cease by itself. Those posts should not be filled by appointment, transfer or promotion." This was issued keeping in view the fixation of non-teaching posts and usage of the Government provided human resources, taking into account the reduction in expenses to be incurred by the Government. The above said regularization of the strength of the non-teaching staff in Government Aided Schools came into effect only from the date of issuance of G.O., https://www.mhc.tn.gov.in/judis/ Page 5/9 W.A.No.42/2021 i.e., from 13.11.2018.
8. Admittedly these appointments were made on 01.10.2018 before the said issuance of the said G.O. and coming into effect of the same. The writ petitioner School which has got the student strength of more than 2000 would suffer without non-teaching posts in the absence of manpower for maintenance of establishment, sanitation, etc. It is pertinent to state that G.O.Ms.No.115, dated 13.05.2017 was quashed by this Court, as the same is without jurisdiction and it is violative of the scheme of the Act. Similarly, the 1973 Act also does not prescribe taking prior permission before making appointment in the sanctioned posts, whenever a vacancy arose against the same.
9. In a recent First Bench judgment in W.A.No.1022 of 2020 dated 07.01.2021 (Director of School Education and Others V. S.Murugan and Another), it has been held that prior permission is not required for filling up the vacancies in the sanctioned posts of the non-teaching staff and the relevant portion of the judgment reads as follows :
"6. What is of importance is whether an aided School is required to obtain prior permission from any authority to undertake the process of appointment upon a vacancy arising in a sanctioned non-teaching post. The appellants have not been able to indicate any Rule or Notification or the like requiring prior permission to be sought before undertaking the exercise to look for a replacement upon a sanctioned post falling vacant in the non-teaching category. https://www.mhc.tn.gov.in/judis/ Page 6/9 W.A.No.42/2021
7. It is possible that there may be surplus staff in other Government-aided Schools in the District or nearby areas. It is equally possible that the Government may require the surplus staff to be deployed at other aided Schools upon vacancies in similar post arising thereat. However, there has to be a mechanism which has to be put in place for such purpose and the process has to be certain. It would not do for the Department to refuse an appointment merely because at the time of appointment, the Department finds surplus staff of similar description in other aided Schools in the District or the locality. The position as to surplus staff ought to exist at the time when the vacancy arose or, at any rate, prior to the process of appointment being initiated. Once the appointment process is undertaken and a person is identified, it may no longer be open to the Department to refuse the appointment and undo the process by citing surplus staff.
8. In such a scenario, the Department may do well to either bring in Rules that would require aided Schools to obtain permission from the relevant District Educational Officer before undertaking an appointment procedure and the District Educational Officer being required to respond to the request within a fixed time, so that the relevant School can fill up the vacancy without undue delay. In the alternative, the relevant District Educational Officer may circulate the description and number of the surplus staff at various levels to all Schools for such Schools to be able to fill up any vacancy that arises from the surplus staff at the relevant post. In the absence of either, an aided School cannot be faulted for undertaking the exercise of appointing a person to a sanctioned post or seeking the appointment. The permission that is sought is not permission to fill the post as such, but permission to enable the District Educational Officer to scrutinise whether the appointment procedure was alright and whether the incumbent fits the bill.
9. In the present case, the order impugned cannot be faulted, since there was no mechanism of either kind as referred to above. It https://www.mhc.tn.gov.in/judis/ Page 7/9 W.A.No.42/2021 is irrelevant that the vacancy arose in 2014 and the attempt to fill the vacancy was undertaken in 2018. Since there was no Rule to seek prior permission from the District Educational Officer before the appointment procedure was undertaken, the School cannot be blamed. The appointment cannot be denied merely because there was surplus staff which the School was not made aware of before the School undertook the appointment procedure."
We are also in agreement with the said judgment and no ground is made out to interfere with the order of the learned Single Judge.
10. For the foregoing reasons, the Writ Appeal filed by the appellants fail and the same deserves to be dismissed and accordingly, dismissed. The appellants are directed to grant approval of the appointment of the non-teaching staff, in terms of the proposal submitted by the writ petitioner School, after satisfying the other requirements mandated in the relevant enactments and disburse the grant-in-aid to the writ petitioner School with effect from the date of the appointment. The above said exercise has to be completed and orders be passed within a period of four weeks from the date of receipt of a copy of this order. However, there will be no orders as to costs.
(P.S.N., J.) (K.R., J.) 03.08.2021 Index : Yes / No Internet: Yes gg https://www.mhc.tn.gov.in/judis/ Page 8/9 W.A.No.42/2021 PUSHPA SATHYANARAYANA, J.
AND KRISHNAN RAMASAMY, J.
gg W.A.No.42 of 2021 03.08.2021 https://www.mhc.tn.gov.in/judis/ Page 9/9