Madras High Court

The Director Of School Education vs M.C.N. Higher Secondary School on 3 August, 2021

                                                                                   W.A.No.244/2021


                                 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.244 of 2021
                                             and C.M.P.No.1034 of 2021

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

                      2. The Chief Educational Officer,
                         Chennai District, Egmore,
                         Chennai-600 008.

                      3. The District Educational Officer,
                         South Chennai Educational District,
                         Egmore, Chennai-600 008.                    .. Appellants/Respondents

                                                           Vs.

                      M.C.N. Higher Secondary School,
                      134, Habibulla Road, T.Nagar,
                      Chennai-600 017, rep. by its
                      Secretary M.Gajendran,
                      S/o.Thiru.M. N.Sahi Gopal Naidu               ..Respondent/Petitioner
                                                          ***
                      Prayer :   Writ Appeal filed under Clause 15 of Letters Patent against
                      the order dated 07.02.2020 in W.P.No.1282 of 2020.
                                                          ***


                                 For Appellants     :      Mr.R.Neelagandan
                                                           State Government Counsel

                                 For Respondent :          Mr.G.Sankaran

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                                                                                     W.A.No.244/2021


                                                    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 School and

there was a vacancy that arose in the post of Watchman on 05.03.2012.

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

30.05.2017. 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 and sent a

proposal on 25.05.2018 seeking to grant permission to fill up the said

post, which was returned on 09.12.2019 on the ground that the

vacancies in the posts of non-teaching staff are to be filled up only from

the surplus staff working in other aided schools by deployment. As the

School had sought permission for appointment of Watchman in a

sanctioned post, 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 http://www.judis.nic.in Page 2/7 W.A.No.244/2021

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 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, the order impugned herein was passed.

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, 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 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. Admittedly, the

Government Order passed only in the year 2018 has no retrospective

effect.

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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 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 http://www.judis.nic.in Page 4/7 W.A.No.244/2021

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 take a different view from that of the same arrived at by

the Hon'ble First Bench of this Court.

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 said order.

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

the order of the learned Single Judge is confirmed. However, there will

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be no order as to costs. Consequently, connected miscellaneous petition