Madras High Court
Samy Ayya Nadar vs The State Of Tamil Nadu on 29 July, 2024
W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.07.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
and
W.M.P.(MD)No.19748 of 2019
W.P.(MD)No.22608 of 2019 :-
Samy Ayya Nadar,
Higher Secondary School
Rep. By its Secretary,
Nagalapuram – 628904
Tuticorin District. ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. By its Secretary,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Tuticorin, Tuticorin District.
4.The District Educational Officer,
Kovilpatti, Tuticorin District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings issued by the third
respondent herein in O.Mu.No.1226/A3/2019, dated 01.10.2019, quash
the same and further direct the third respondent herein approve
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W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
forthwith the appointment of K.Vasuki as BT Assistant (Maths) in the
petitioner School from 01.11.2018 onwards with salary and other
attendant benefits.
(Prayer amended vide order dated 31.10.2019, made in W.M.P.(MD)No.
19747 of 2019 in W.P.(MD)No.22608 of 2019 by VMVJ)
For Petitioner : Mr.E.V.N.Siva
For Respondents : Mr.M.Sarangan
Additional Government Pleader
W.P.(MD)No.21935 of 2023 :-
K.Vasuki ... Petitioner
Vs.
1.The Chief Educational Officer,
Tuticorin.
2.The District Educational Officer,
Kovilpatti,
Tuticorin District.
3.The Secretary,
Samy Ayya Nadra Higher Secondary School,
Nagalapuram,
Tuticorin District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, directing the respondent to approve
the appointment of the petitioner as BT Assistant (Maths) with effect
from 01.11.2018 and release the salary with all consequential benefits.
For Petitioner : Mr.V.Panneer Selvam
For Respondents 1 & 2 : Mr.M.Sarangan
Additional Government Pleader
For 3rd Respondent : Mr.E.V.N.Siva
COMMON ORDER
Two Writ Petitions came to be filed with respect to the appointment https://www.mhc.tn.gov.in/judis 2/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 of one K.Vasuki, as BT Assistant Maths in Samy Ayya Nadar Higher Secondary School, at Nagalapuram, Tuticorin District on 01.11.2018.
2.The School is the petitioner in W.P.(MD)No.22608 of 2019 and the concerned Teacher namely, Tmt.K.Vasuki, the petitioner in W.P. (MD)No.21935 of 2023. Samy Ayya Nadar Higher Secondary School is a private aided non minority School. A sanctioned post in BT Assistant (Maths) had fell vacant on account of promotion of previous incumbent, one J.John Stanley. Pursuant to the said vacancy, a proposal was submitted by the School, seeking prior permission to fill up the said post by direct recruitment in terms of Rule 15(4)(1)(c) of the Tamil Nadu Recognized Private Schools (Regulation) Rules and the third respondent vide proceedings in Mu.Mu.No.4309/A3/2018, dated 18.09.2018, granted permission to fill up the post as BT Assistant (Maths). After a proper selection process, the petitioner in W.P.(MD)No.21935 of 2023, Tmt.K.Vasuki, came to be appointed as BT Assistant (Maths) on 01.11.2018 and thereafter, she is discharging the duties as BT Assistant (Maths) till date. Following her appointment, the School had submitted a proposal to the third respondent through fourth respondent on 09.01.2019, seeking approval to the appointment of Tmt.K.Vasuki as BT Assistant (Maths) and for disbursement of grant in aid towards salary through proper channel i.e., through the fourth respondent along with necessary documents and details. However, the same was not https://www.mhc.tn.gov.in/judis 3/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 considered.
3.When the matter was taken up for admission in W.P.(MD)No. 22608 of 2019, it was informed to the Court that the third respondent vide proceedings in O.Mu.No.1226/A3/2019, dated 01.10.2019, cancelled the prior permission granted by the third respondent permitting to fill up the post of BT Assistant (Maths). In view of the same, the petitioner in W.P.(MD)No.22608 of 2019 filed an amendment petition in W.M.P. (MD)No.19747 of 2019, for amendment of prayer, challenging the proceedings dated 01.10.2019 and the same was allowed. In the meanwhile, the incumbent Teacher Tmt.K.Vasuki also filed W.P.(MD)No. 21935 of 2023, seeking approval of her appointment as BT Assistant with effect from 01.11.2018.
4.The learned counsel appearing for the petitioner School submitted that the petitioner School is a private aided non minority School. Only pursuant to the prior permission granted by the third respondent, in view of complying the said order, after proper selection process, Tmt.K.Vasuki was appointed as BT Assistant (Maths). Drawing my attention to the proceedings of the third respondent by which, prior permission was granted on 18.09.2018, the learned counsel pointed out that the School was permitted to appoint the post of BT Assistant (Maths), by following communal rotation afresh from the category of OC https://www.mhc.tn.gov.in/judis 4/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 and also by following G.O.Ms.No.142, (Personnel and Administrative Reforms Department), dated 14.10.2009, for the purpose of following communal rotation. Exclusively based on the said permission, the selection process was conducted by the School and candidate in the category of OC, came to be appointed with effect from 01.11.2018, by an order dated 25.10.2018. The third respondent after a period of one year, passed the impugned order cancelling the prior permission granted to the School for appointing the candidate in the post of BT Assistant in the category 'OC' for the ground that the recruitment ought to have been following the communal roaster from serial No. Schedule 3 of the Rule of Reservation under the Tamil Nadu State and Subordinate Service Rules.
5.Pointing out the amended Rules in Part II issued vide G.O.Ms.No. 55, Personal and Administrative Reforms Department, dated 08.04.2010, the learned counsel submitted that the vacancy arose on and from 29.04.2009, shall be filled up as per Schedule 3 and all selection for appointment shall be started afresh from Serial No.1 in the said Schedule 3 with effect on and from the said date. The learned counsel further submitted that on the basis of the fact that one Ashta Lakshmi was appointment on 25.01.2009 in the general turn OC category, the prior permission came to be cancelled stating that the incumbent ought not to have been appointment under the general turn OC category taking away the opportunity of SCA category in terms of Schedule 3 of the Rules of https://www.mhc.tn.gov.in/judis 5/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 Reservation. However, the date of appointment of the said Ashta Lakshmi mentioned in the impugned order is incorrect. It has been shown that the said Ashta Lakshmi was appointment on 21.05.2009, but she was actually appointment on 25.03.2009, for which, the learned counsel placed before me the copy of appointment order of the said Ashta Lakshmi, which would clearly reveal that she was appointed only on 25.03.2009 and not on 21.05.2009. Pointing out the fact that the said Ashta Lakshmi was appointed on 25.03.2009, the learned counsel submitted that in terms of the explanation in Part II General Rules of the G.O.Ms.No.55, Personnel and Administrative Reforms Department, dated 08.04.2010, prior permission granted by the third respondent, by order dated 18.09.2018, was perfectly correct since the vacancies arising on and from 29.04.2009 filled up afresh as per Schedule 3 and the vacancy in which, Tmt.K.Vasuki was appointed was the vacancy which had arisen after 29.04.2009 i.e., 19.06.2017, as such there is no irregularity in the prior permission dated 18.09.2018, granted to the School, directing to make appointment to the post of BT Assistant (Maths) afresh in terms of communal roaster in the cadre of General turn OC. However, mistakenly, recording the date of appointment of Ashta Lakshmi as 21.05.2009, the impugned order came to be passed and pressed for quashing the impugned order and for allowing the Writ Petition. https://www.mhc.tn.gov.in/judis 6/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
6.The learned counsel appearing for the Teacher in W.P.(MD)No. 21935 of 2023 adopted the arguments of learned counsel Mr.E.V.N.Siva, who argued for the School.
7.Relying upon the counter affidavit filed by the fourth respondent, the learned Additional Government Pleader appearing for the respondents submitted that the learned counsel for the petitioner though relied upon the explanation, has failed to see the proviso to the said explanation, which would clearly mandate that if any recruiting agency had made any selection on or after 15.09.2007, with reference to 200 point roaster prescribed in G.O.Ms.No.241, Personnel and Administrative Reforms Department, dated 29.10.2007, and G.O.Ms.No.101, School Education, dated 30.05.2008 and G.O.Ms.No.65, Personnel and Administrative Reforms (K) Department, dated 27.05.2009, the said selections need not be reopened and for further recruitment, the revised roaster prescribed in Schedule 3 should be continued only from the last turn up to which selection was already made. In view of the same, since the said Ashta Lakshmi has already been recruited in general turn OC category, automatically next selection should have been made only under Serial No.II Schedule 3 I.e., Schedule caste (Aruthathiyars on preferential basis).
8.The learned Additional Government Pleader categorically https://www.mhc.tn.gov.in/judis 7/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 submitted that the prior permission granted by the incumbent third respondent during 18.09.2018, had mistakenly given prior permission for appointment to the post of BT Assistant in the cadre of general turn OC. Having noticed the said mistake later, the third respondent as on 01.10.2019, has cancelled the prior permission following the proper Rules and there is no irregularity or mistake in the same. A mistake committed by an Erstwhile Officer without considering the relevant Rules, can always be corrected by the subsequent Officer if any mistake is identified by way of administrative orders and pressed for dismissal of the Writ Petition.
9.Heard the learned counsel for the petitioners, the learned Additional Government Pleader for the respondents and carefully perused the materials available on record.
10.In view of the submission made by the learned Additional Government Pleader that the prior permission granted to the petitioner School to appoint BT Assistant (Maths), by order dated 18.09.2018, was cancelled only by considering the mistake committed by the Erstwhile Officer, who granted the said permission without considering the mandates of G.O.Ms.No.142, Personal and Administrative Reforms Department, dated 14.10.2009, was carefully perused by this Court. The said G.O. was issued by the Government for the purpose of introducing https://www.mhc.tn.gov.in/judis 8/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 the modified 200 point roaster and later G.O.Ms.No.55, Personal and Administrative Reforms Department, dated 08.04.2010, came to be issued only for the purpose of modifying the roaster in terms of G.O.Ms.No.142, by amending Tamil Nadu State and Subordinate Service, Rule of Reservation under communal reservation.
11.As far as the proviso to the explanation pointed out by the learned Additional Government Pleader is concerned, the said proviso would make it clear that the same speaks about the various notifications already made by the various recruiting agencies, which would obviously mean various Government Agencies like TNPSC and TRB. However, the case in hand is with respect to recruitment of single post of BT Assistant (Maths) in a single individual private aided non minority School, for which the Rules framed under Article 309 of Constitution of India, may not be applicable in all point of time. This Court in the case of the Director of School Education and others v. Geldon Wifred Viola and another in 2009 (2) TLNJ 101 (Civil) has dealt with similar case and the relevant portion of the same is extracted as follows:-
“ 5...It is well settled in law that the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and rules made thereunder are alone made applicable to the second respondent- School and the qualifications are prescribed under the rules framed in exercise of the powers conferred under Section 56 of the Act. Any prescription of the qualification by way of the Government Order without amendment to the rules cannot be given effect to bind the https://www.mhc.tn.gov.in/judis 9/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 private schools and the appointments, conditions of service, qualification are all governed by the provisions of the. Act and the rules made thereunder. The Government Order G.O.Ms.361 Education Department dated 31.12.1999 which is questioned though has been issued in exercise of the power under Article 309 of the Constitution of India, in our opinion, that would be made applicable only to the Government Servants viz., the teachers who are employed in the Government Schools and not to the teachers in private schools, as those teachers are governed only by the provisions of the Act and the rules made thereunder.“
12.This Court in the case of the Saliar Mahajana Higher Secondary School rep. By its Secretary v. The Joint Director of Schools (Higher Secondary) and others in 1995 Writ L.R. 277, has dealt with similar case and the relevant portion of the same is extracted as follows:-
“8.We have no difficulty in holding that the Rules framed under G.O.Ms.No.720, Education, dated 28.04.1981, are applicable to the Aided Schools with such modifications as are necessary. Hence, in so far as the Aided Schools are concerned, the rules cannot be treated as statutory Rules or Rules framed under Art. 309 of the Constitution. The said Article in the Constitution of India is not applicable to private Schools. Consequently, the Rules in so far as they relate to Aided Schools can only be brought under Article 162 of the Constitution of India and treated as having been framed in exercise of the executive powers of the Government. Thus, the rules under G.O.Ms.No.720, are only Administrative Rules in so far as they relate to Aided Schools and they cannot be treated as statutory Rules.”
13.That apart, only on the basis of the prior permission granted by https://www.mhc.tn.gov.in/judis 10/12 W.P.(MD)Nos.22608 of 2019 and 21935 of 2023 the third respondent on 18.09.2018, specifically, on the condition that communal roaster should be followed afresh, a candidate from general turn OC category came to be appointed.
14.In view of the same, now the third respondent ought not to have made an 'U' turn by cancelling the said appointment. That apart, no other person seem to have been aggrieved by the appointment of Teacher namely, K.Vasuki. Under such circumstances, the third respondent ought not to have cancelled the recruitment made by the petitioner School after following recruitment process, which was carried out in accordance with law, in terms of relevant Rules of Recruitment. The proceedings of the third respondent dated 01.10.2019, is hereby quashed and the third respondent is directed to approve the appointment of the said K.Vasuki within a period of eight weeks from the date of receipt of copy of this order.
15.Accordingly, the Writ Petitions stand allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
29.07.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
L.VICTORIA GOWRI, J.
Mrn
To
1.The Secretary,
State of Tamil Nadu,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Tuticorin, Tuticorin District.
4.The District Educational Officer,
Kovilpatti, Tuticorin District.
W.P.(MD)Nos.22608 of 2019 and 21935 of 2023
29.07.2024
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