Madras High Court
The District Elementary ... vs M.Jesu Rathinam on 2 December, 2021
W.A(MD)No.1101 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A(MD)No.1101 of 2020
and
C.M.P(MD)No.6003 of 2020
1.The District Elementary Educational Officer,
Tuticorin District.
2.The Assistant Elementary Educational Officer,
Karungulam, Tuticorin District.
... Appellants / 1 and 2 Respondents
Vs.
1.M.Jesu Rathinam
...1st Respondent/writ petitioner
2.The Correspondent,
St. Lucia R.C.Middle School,
Seydunganallur, Tuticorin District.
... 2nd Respondent/3rd Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, against
the order dated 21.03.2019 in W.P(MD)No.6271 of 2012.
For Appellants : Mr.P.Subbaraj,
Special Government Pleader
For R-1 : Mr.M.S.Suresh Kumar
For R-2 : No Appearance
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W.A(MD)No.1101 of 2020
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA, J.)
This writ appeal has been filed challenging the order passed
in W.P(MD)No.6271 of 2012, dated 21.03.2019.
2. The brief facts of the case are that in the second respondent
School, a Post of B.T. Assistant became vacant on 30.06.2009 due to the
transfer of one Mrs.Jessi, a Secondary Grade Teacher. The said post was
upgraded as B.T. Assistant as per the amendment. Therefore, one
Mrs.Jasmine J.Kenned, who was a Secondary Grade Teacher was given
promotion as B.T. Assistant on 16.07.2009. Therefore, the said post
became vacant from 16.07.2009. The second respondent being a
minority Institution, selected and appointed the writ petitioner as
B.T. Assistant in the place of Jasmine J.Kenned. When the papers were
sent to the first appellant for approval, the same was returned stating
that since the promotion of Jasmine J.Kenned has not been approved,
only after the approval of her promotion, the proposal of the writ
petitioner will be recommended for approval.
3. On 03.03.2011, the promotion of Jasmine J.Kenned was
approved by the first appellant with the condition that the vacancy that
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W.A(MD)No.1101 of 2020
arose due to promotion given to Jasmine J.Kenned, should not be filled
up. Therefore, when the proposal for approval of the writ petitioner was
sent to the first appellant, it was rejected firstly, on the ground that at
the time of appointment of the writ petitioner, one Mr.Peer Mohammed
was a History Teacher. Therefore, the post became vacant only on
03.12.2010. Secondly, at the time of approving the promotion of
Jasmine J.Kenned, the vacancy should not be filled up. There were
surplus teachers in the Secondary Grade Post. The said order passed on
12.12.2011 was impugned in the writ petition. The writ Court had
allowed the writ petition rejecting the objections raised by the appellants
herein. Aggrieved by the said order, the above writ appeal is preferred.
4. Heard Mr.P.Subbaraj, learned Special Government Pleader
appearing for the appellants, Mr.S.Suresh Kumar, learned counsel
appearing for the first respondent and perused the materials available on
record.
5. The first objection was that when the writ petitioner was
appointed as a B.T. Assistant in the history subject, there was already a
Teacher named Peer Mohammed, who was a B.T. Assistant in the same
subject in the school and he retired only on 03.12.2010. It is to be noted
that the writ petitioner/first respondent was appointed in the vacancy
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W.A(MD)No.1101 of 2020
caused by the promotion of one Jasmine J.Kenned. Even otherwise, as
early as in 2006, in the case of Corporate Manager, CSI Corporate
Schools vs. State of Tamil Nadu reported in (2006 (5) CTC 504), it
was categorically held that the authorities cannot insist that vacancies in
middle schools ought to be filled by subject roster. Following the same,
the Division Bench of this Court in W.A(MD)No.716 of 2014, had
confirmed the said position. It would be appropriate to advert to the
relevant Paragraphs of the said decision:
"3.Similar issue was considered by this Court in
thedecision reported in 2006(5) CTC 504 - The Corporate
Management, CSI Corporate Schools, CSI Diocese of
Kanyakumari, Nagarcoil vs. The State of Tamil Nadu, rep by
its Secretary, Chennai and others and this Court quashed
theCircular, dated 26.10.2004 issued, restricting the number
ofteachers having degrees in the same subject in a school.
4.The said decision was considered by a Division
Bench4 of the Principal Seat in the Judgment dated
20.09.2007 made in W.A.No.1198 of 2007 wherein it is held
thus:
"3.In fact the legal implication of the said
proceedings dated 26.10.2004, was
considered by this Court in the light of Tamil
Nadu Recognized Private Schools (Regulation)
Act, 1973 (in short T.W. Act 29 of 1974) in the
Correspondent, Britannia Higher Secondary
School, Chennai vs.State of Tamil Nadu, rep.
by its Secretary, Department of School
Education, Chennai and others (2007 (2) MLJ
760) and held that the said Act 29/74 does
not contemplate any subject roster to be
followed regarding the appointment of Middle
Grade Graduate teachers. That was also the
decision taken earlier by the Madurai Bench of
Madras High Court in the corporate Manager,
CSI Corporate Schools Vs. State of Tamil Nadu
(2006 (5) CTC 504). It was also considered in
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W.A(MD)No.1101 of 2020
the above said cases that the executive
instruction cannot supersede the statutory
provision, by relying upon the decision of the
Supreme Court in B.N. Nagarajan Vs. State of
Karnataka (1979 II LLJ 209 (SC), which was
subsequently reiterated by the Supreme Court
in V.Sreenivasa Reddy Vs. Government of A.P.
(AIR 1995 SC 586). Therefore, by virtue of the
above said judgments, it is the categoric
decision of this Court that theproceedings of
the second appellant dated 26.10.2004 by
imposing subject roster in making appointment
is not Valid and is in violation of the provisions
of the Act 29/74. In view of the same, there is
absolutely no reason to interfere with the order
of the learned Single Judge. Consequently, the
writ appeal fails and the same is dismissed
with direction to the appellants to approve the
appointment of V.J. Titus Prabhakar
(Mathematics) with effect form the date of his
appointment with salary and other benefits
within a period of four weeks from the date of
receipt of copy of this order. No Costs.
Consequently, connected miscellaneous
petition is closed".
6. In view of the above, the objection that the condition imposing
subject roster while making appointment is not valid and it is in violation
of the provisions of the Tamil Nadu Act 29, 1974.
7. The second ground that vacancy that arose on account of
promotion of Jasmine J.Kenned, should not be filled up, is found to be a
unreasonable condition by the writ Court. It is not the case of the
appellant that the School did not have necessary students strength and
have sanctioned post. When the vacancy arises in the sanctioned post
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W.A(MD)No.1101 of 2020
on account of promotion or retirement, the management is entitled to fill
up. Therefore, the argument that the appointment of Jasmine J.Kenned
was approved on condition that the vacancy arisen on account of her
promotion should not be filled up, is arbitrary, especially when the
management happens to be a minority Institution. Therefore, the second
objection also fails.
8. The third objection raised by the learned Special Government
Pleader that there was already surplus teacher in the second respondent
R.C. Middle School and therefore, appointment cannot be made also, is
only a faint argument as the appointment of the writ petitioner is well
within the sanctioned strength. The argument of the learned Special
Government Pleader that the School without deploying the surplus
teacher and without following the instructions of the Government has
appointed the Teachers on their own, which is against law, cannot be
accepted as the writ petitioner was appointed in the vacancy that arose
due to the promotion of Jasmine J.Kenned. In view of the above, the
said objection is also ruled out.
9. In the light of the above discussion, the writ appeal is dismissed
and the order of the learned Single Judge, is confirmed. It appears that
there has been an order of interim stay granted by the Division Bench of
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W.A(MD)No.1101 of 2020
this Court at the time of admission and the same stands vacated and the
appellants are directed to approve the appointment of the writ petitioner
within a reasonable time. No Costs. Consequently, connected
Miscellaneous Petition is closed.
[P.S.N.,J] [P.V.,J.]
02.12.2021
Index :Yes/No
Internet :Yes/No
pm
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate / litigant concerned.
PUSHPA SATHYANARAYANA,J.
and
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W.A(MD)No.1101 of 2020
P.VELMURUGAN,J.
pm
W.A(MD)No.1101 of 2020
.12.2021
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