Madras High Court

The Director Of School Education vs St. Gabriel'S Higher Secondary ... on 3 August, 2021

                                                                                    W.A.No.983/2021


                                   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.983 of 2021
                                              and C.M.P.No.6084 of 2021

                     1. The Director of School Education,
                        DPI Campus, College Road,
                        Chennai-600 006.

                     2. The District Educational Officer,
                        Chennai East, Chennai-600 094.

                     3. The District Educational Officer,
                        Chennai West, DPI Campus,
                        College Road, Chennai-600 006.                .. Appellants/Respondents

                                                            Vs.

                     St. Gabriel's Higher Secondary School,
                     No.28, Broadway, Chennai-600 108
                     Rep. by its Correspondent,
                     Fr. Rajan, S/o.Pushpam                           .. Respondent/Petitioner
                                                          ***


                     Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
                     order dated 11.02.2020 in W.P.No.9997 of 2019.
                                                          ***


                                   For Appellants     :     Mr.R.Neelagandan
                                                            State Government Counsel

                                   For Respondent :         Mr.G.Sankaran

https://www.mhc.tn.gov.in/judis/
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                                                                                                   W.A.No.983/2021


                                                         JUDGEMENT

PUSHPA SATHYANARAYANA, J.

This is an appeal filed by the Government challenging the direction

given by a learned Single Judge of this Court directing the third

respondent to consider the proposal that was forwarded by the

respondent School and pass appropriate orders within a period of four

weeks.

2. The respondent School is a Government Aided Minority

School and there was a vacancy that arose in the post of Junior

Assistant. The school had already sent a proposal to the second appellant

seeking approval of the appointment in non-teaching staff posts, namely,

Junior Assistant, Library Clerk, Watchman, Office Assistant, Record Clerk,

etc.,. that fell vacant on various dates prior to 2018. The Government

had issued G.O.Ms.No.64, School Education Department, dated

03.04.2018 to fill up non-teaching posts, by deployment of surplus staff

working in other schools. The Government had not acted upon the same

and the School was functioning without the staff and non-teaching staff.

Those appointed by the School in the sanctioned posts were working

without payment of salary from the date of appointment and proposals

were sent for approval of appointment made on temporary basis for the

purpose of assessment of salary grant. In the meanwhile,

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G.O.Ms.No.238, School Education Department, dated 13.11.2018, was

passed to fill up the vacancies of the non-teaching staff and also

regulations were issued. As the School had sent the proposal for

appointment of Junior Assistant in a sanctioned post, who was appointed

on 01.07.2011, much prior to the G.O.Ms.No.238, the appellants ought

to have approved the same. As the approval did not come through, a

Mandamus was sought and issued. The appellants now assail the said

order contending that prior permission before the appointment ought to

have been obtained from the Government.

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, following his own decision, and

directions were issued to the third respondent therein/third appellant

herein to consider the proposal sent by the School and pass orders.

4. The learned counsel for the respondent/School invited this

Court's attention to the recent judgment made in W.A.No.1022 of 2020

dated 07.01.2021 (Director of School Education and Others V. S.Murugan

and Another). The above said Writ Appeal is also on the same subject

arising in an identical situation, where the appellant was appointed prior

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to 2018 and when proposal was sent for approval, there was no response

and the writ petition was filed and disposed of by the learned Single

Judge, against which, the writ appeal was filed. In the said appeal also,

the two grounds raised by the Government (i) that no permission was

sought for by the School before the appointment is made of any non-

teaching staff ; and (2) that in view of G.O.Ms.No.238, the surplus staff

should have been engaged, were negatived. As stated earlier, the

appointment, thus, was made prior to 2018, i.e., on 01.07.2011. The

Government Order passed only in the year 2018 has no retrospective

effect.

5. So far as the permission to be obtained before making the

appointment is concerned also, the First Division Bench in S.Murugan's

case (cited supra) has held 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.

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 https://www.mhc.tn.gov.in/judis/ Page 4/7 W.A.No.983/2021

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 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." https://www.mhc.tn.gov.in/judis/ Page 5/7 W.A.No.983/2021

6. Both the grounds raised by the appellant are already decided

in the above case, which are similar to the facts of the instant case in

hand. In view of the above, in the absence of any specific rule or

regulation mandating that prior permission is required for appointing a

non-teaching staff in a sanctioned post, the appointment made by the

respondent school cannot be faulted with and the learned Single Judge,

therefore, rightly directed the authorities to approve the same within a

period prescribed. We see no reason to interfere with the same.

7. For the foregoing reasons, the Writ Appeal is dismissed and

the order of the learned Single Judge is confirmed. The appellants are

directed to comply with the directions issued by the learned Single Judge