Madras High Court

The Government Of Tamil Nadu vs B.Namitha on 3 August, 2021

                                                                                 W.A.No.495/2021


                                   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.495 of 2021
                                             and C.M.P.No.1963 of 2021

                     1. The Government of Tamil Nadu
                        rep. by its Secretary,
                        School Education Department,
                        St. George Fort,
                        Chennai-9.

                     2. The Director of School Education,
                        College Road, Chennai-600 006.

                     3. The Chief Educational Officer,
                        Erode District, Erode.

                     4. The District Educational Officer,
                        Erode District,
                        Erode-638 001.                            .. Appellants/Respondents

                                                            Vs.

                     1. B.Namitha                                 .. Respondent/Petitioner

                     2. The Secretary,
                        Kalaimagal Kalvi Nilayam,
                        Girls Higher Secondary School,
                        Erode-638 001.                          ..Respondent/Respondent-5
                                                      ***
                     Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
                     order dated 17.03.2017 in W.P.No.832 of 2017.
                                                      ***
                                For Appellants   :     Mr.R.Neelagandan
                                                       State Government Counsel


https://www.mhc.tn.gov.in/judis/
                     Page 1/7
                                                                                      W.A.No.495/2021


                                    For Respondent-1:      Mr.K.Sathishkumar

                                    For Respondent-2:      Served - No Appearance

                                                    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 second respondent School is a Government Aided School

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

year 2012. 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

30.05.2007. Subsequently, the said Government Order was quashed in

W.P.(MD)No.11481 of 2008. Considering the need for filling up of non-

teaching staff posts, the School had initiated the process of selection and

the first respondent was appointed in the said vacancy on 18.11.2016

and the second respondent school sent a proposal on 21.11.2016, which

was returned on 09.12.2016 on the ground that there was a ban on

filling the non-teaching posts and as per G.O.Ms.No.238, School

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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. As the School had sent the proposal for

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

on 18.11.2016, 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.

3. The said question is no longer res integra, as the same has

been decided in P.Ravichandran V. State of Tamil Nadu, (2013) 7

MLJ 641, and thus, the learned Single Judge quashed the order rejecting

the proposal.

4. The learned counsel for the second 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 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

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appeal, two grounds raised by the Government, namely, (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

18.11.2016. The Government Order passed only in the year 2018 has no

retrospective effect.

5. 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 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 https://www.mhc.tn.gov.in/judis/ Page 4/7 W.A.No.495/2021

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."

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.

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6. The ground raised by the appellant is already decided in the

above case, which is similar to the facts of the instant case in hand. In

view of the above, the learned Single Judge rightly quashed the

impugned order. We see no reason to interfere with the same.

7. It is brought to our notice by the learned counsel that the

first respondent filed Contempt Petition No.33 of 2018, and therefore,

the order impugned in this appeal was implemented by the appellants

and an order in Na.Ka.No.5159/A3/2017, dated 24.01.2018 was passed