Madras High Court
Mr.A.Arulanantham vs The Government Of Tamil Nadu on 15 December, 2021
Order dated 15.12.2021 in
W.P.Nos.6674 of 2020, etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15.12.2021
Coram:
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
Writ Petition Nos.6674, 6677, 3324, 7220, 15641 and 16805 of 2020
and
7467, 21328 and 21714 of 2021
and
W.M.P.Nos.7914, 7918, 3855, 8634, 8634, 19491, 20841, 20843 of 2020, 7992,
7990, 7991, 22564, 22563, 22895 and 22896 of 2021
---
Mr.A.Arulanantham,
St.Bede's Anglo-Indian Higher Secondary School,
Santhome, Chennai-600 004.
.. Petitioner in W.P.No.6674 of 2020
Vs.
1. The Government of Tamil Nadu,
Rep. by its Secretary,
Department of School Education,
Fort St.George, Chennai-9,
2. The Director of School Education,
DPI Campus,
College Road, Chennai-600 006.
3. The Chief Educational Officer,
The Office of the Chief Educational Officer,
Panagal Building, 1st Floor,
Saidapet, Chennai-600 015.
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4. The District Educational Officer,
The Office of the Chief Educational Officer,
Saidapet,
Chennai-600 015.
5. The Correspondent,
St.Bedes Anglo-Indian Higher Secondary School,
Santhome, Chennai-600 004.
.. Respondents in W.P.No.6674 of 2020
For petitioner in W.P.No.6674 of 2020 : Father Xavier Arulraj for
M/s.Father Xavier Associates
For respondents in W.P.No.6674 of 2020: Mr.Abishek Moorthy,
Govt. Advocate for RR-1 and 2
Mr.L.S.M.Hasan Fizal,
Addl.G.P. for RR-3 and 4
M/s.F.Arockia Sahaya Rani for R-5
COMMON ORDER
Since the issue involved in all these Wit Petitions, is one and the same,
the same are taken up for disposal by this common order.
2. In all these batch of cases, the common grievance of the petitioners is
that their respective appointments have not been approved by the educational
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Order dated 15.12.2021 in
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authorities by citing G.O.Ms.No.238, School Education (Pa.Ku.61) Department,
dated 13.11.2018.
3. The contention of the learned counsel appearing for the petitioners in
these batch of cases is that application of G.O.Ms.No.238 to the appointment
which had taken place prior to the passing of the said G.O., dated 13.11.2018,
was discountenanced by several orders of this Court in the Writ 8Petition(s) and
confirmed in Writ Appeal(s).
4. In this regard, the learned counsel referred to one of the earliest
decisions of this Court, dated 07.10.2020 passed in W.P.Nos.11574 and 11586 of
2020 (I.Alwin Martin and another Vs. The Director of School Education, College
Road, Chennai-600 009 and others), in which, this Court, after considering the
objections from the side of the respondents therein, had allowed similar claims
as that of the petitioners herein. It is useful to extract paragraphs 7 to 9 of the
said order, as follows:
"7. This Court considered the objections, but as far as
the present claim on hand is concerned, admittedly the
appointments of the petitioners had been made against the
vacancies which existed prior to the issuance of G.O.Ms.No.238
dated 13.11.2018. These petitioners had also been admittedly
appointed earlier to the date of the said G.O., Therefore, this
Court finds that the reliance placed on the order passed by the
learned Single Judge in the above mentioned matter (W.P. (MD)
No.20527 of 2019) would clinch the issue in favour of the
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petitioners herein. For due appreciation of the claims of the
petitioners herein, the relevant portions of the order passed by
the learned Single Judge in Paragraphs 2 to 7 are extracted
hereunder.
"2.The learned counsel for the petitioner would
submit that the Government Order itself cannot be
sustained and since the petitioner was appointed in the
post sanctioned in the year 1996 itself in regular vacancy
on retirement and promotion, the reliance on the
subsequent G.O passed on 13.11.2018, is improper.
Insofar as, the sanctity of G.O(Ms) No.238 dated
13.11.2018 is concerned, the same is a subject matter of
batch of writ petitions, which are said to be pending and
therefore, I do not intend to go into the merits of the
grounds raised questioning the validity of G.O(Ms)
No.238. Nevertheless the fact remains that the proposal
seeking for approval has now been rejected based on the
reliance placed by the respondents on G.O(Ms) No.238
dated 13.11.2018.
3.It is not in dispute that the appointment of these
two posts of Record Clerk and Office Assistant were based
on the sanction granted on 28.12.1996 in
G.O(Ms)No.1731, Education Department. While that being
so, relying on the subsequent G.O(Ms) No.238 for the
purpose of rejection of the approval is illegal, since
G.O(Ms) No.238 can only have a prospective effect. In
view of the same, the consequential order passed by the
respondent dated 10.06.2019 is also unsustainable. On
this short ground, the petitioner herein would be entitled
to succeed.
4.The learned counsel for the petitioner had also
placed reliance upon a decision of this Court passed in
W.P(MD)No.19677 of 2019 dated 04.10.2019 in the case
of The Correspondent, St.Lasalle Higher Secondary School
Vs. The State of Tamil Nadu and others, wherein this
Court had taken note of the fact that the post involved in
that case fell vacant prior to issuance of G.O(Ms)No.238
and therefore, reliance on G.O(Ms) No.238 for the sake of
granting approval cannot be sustained. A similar view was
also taken by this Court in W.P(MD) Nos.27911 and 27912
of 2019 dated 20.09.2019 in the case of P.Manikandan
and other Vs. The Director of School Education and
others.
5.The learned counsel for the petitioner had also
relied upon a decision of this Court in S.Rasheetha Banu
Vs. State of Tamil Nadu and others reported in (2012) 4
MLJ 198, wherein the learned Single Judge of this Court
had held that if a person is appointed in a sanctioned post,
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the approval of appointment cannot be rejected on the
ground that there is a fall in strength and the post became
surplus. This Court was of the view that for the purpose of
granting approval, the Teacher along with the post could
be transferred and deployed to a needy school.
6.In the instant case also, if at all the respondents
were of the view that there was a surplus, the option that
would have been available to the respondents, would be
to grant approval to the said posts and the concerned
employee could have been redeployed to the needy school
and as such, the rejection of the approval itself ought not
to have been exercised. In any event, such a rejection by
relying on subsequent G.O is impermissible.
7.For all the aforesaid reasons, the impugned
order dated 03.04.2019, issued by the third respondent in
O.Mu.No.3083/E1/2019 and the consequential
proceedings of the fourth respondent in Na.Ka.No.
2211/A3/2019 dated ...06.2019, are set aside.
Consequently, there shall be a direction to the third
respondent herein to disburse the grant~in~aid towards
the salaries of the two employees namely S.Ignatius and
D.Jeya Seela Rajathi from the date of their
appointment/promotion together with all attendant
benefits. Such an exercise shall be completed atleast
within a period of six weeks from the date of receipt of a
copy of this order. Accordingly, this Writ Petition stands
allowed. No costs. Consequently, connected miscellaneous
petitions are closed.?"
8. This Court is of the considered view that the claims of the
petitiones are covered by the aforesaid findings as set forth by the learned
Single Judge in the above paragraphs in all fours. Therefore, the writ
petitions are allowed and the impugned orders in
Na.Ka.No.15638/A4/2018 dated 03.06.2020 and Na.Ka.No.7220/A2/2018
dated ..11.2018 (sign on 28.11.2018) rejecting the approval of the
petitioners are hereby set aside. The second and third respondents in the
respective writ petition are directed to grant approval to the appointment
of the petitioners in the fourth respondent school with effect from their
date of initial appointment with all consequential benefits of arrears of
salary and allowances admissible to the petitioners, if their appointment is
found to be in order, otherwise. The second and third respondents are
directed to pass appropriate orders in this regard within a period of four
weeks from the date of receipt of a copy of this order.
8. The writ petitions are allowed with the above directions. No
costs. Consequently, connected miscellaneous petitions are closed."
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5. Subsequently, in the Writ Appeal in W.A.No.268 of 2021, judgment was
rendered on 03.08.2021 (The Director of School Education, DPI Campus, College
Road, Chennai-600 006 and two others Vs. St.Gabriel's Higher Secondary
School), and the said Writ Appeal was filed challenging the order passed in
W.P.No.10001 of 2019, dated 11.02.2020 on the same issue. It is also useful to
extract the relevant portion of the judgment in the said Writ Appeal as follows:
"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, 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 06.03.2016, much prior to the G.O.Ms.No.238, the
appellant 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.
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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 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, 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 06.03.2016.
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 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
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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."
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
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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 within a period of
four weeks from the date of receipt of a copy of this order.
However, there will be no order as to costs. Consequently,
connected miscellaneous petition is closed."
6. The learned counsel for the petitioners herein also placed reliance on
the order of this Court, dated 05.02.2021 in W.P.No.15990 of 2020 (St.Therasa's
Girls Higher Secondary School Vs. The Director of School Education, DPI
Campus, College Road, Chennai-600 006 and two others), on the same subject,
and the relevant portion of which, is extracted hereunder:
"10. This Court, considered the rival submissions of the
learned counsels.
11. As far as the legal issue is concerned, it cannot be
disputed that there are number of decisions rendered by this
Court on the same subject matter holding that appointment to
any sanctioned post(non-teaching), prior to G.O.Ms.No.238
dated 13.11.2018, cannot be held invalid by application of the
said G.O. Therefore, on the legal aspect, there cannot be two
opinions about allowing the petition in favour of the petitioner
School.
12. As far as the factual dispute as to the actual date of
appointment by the School is concerned, though in the counter
affidavit, it is stated that the appointment of Record Clerk by the
3rd respondent was ante dated in order to take advantage of the
decisions of this Court, the statement has not been substantiated
with any material proof. On the other hand, it could be seen
from the proceedings of the 2nd respondent as well as the other
documents filed on behalf of the petitioner, the School had
indeed submitted the documents for approval immediately after
the appointment of the Record Clerk on 03.09.2018. Merely
coming up with bald statement, without substantiating the same,
cannot be a basis of acceptance by this Court in denying the
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relief to the petitioner School.
13. When the statement of fact is made, particularly,
when that fact is most crucial for adjudication of the dispute, the
respondents ought to have produced unimpeachable proof to
demonstrate that the approval sought by the School has been
received by the authority only after issuance of G.O. or the
appointment itself was after the issuance of G.O. The respondent
authorities ought to have maintained proper register in order to
substantiate the factual statement as to when the appointment
was factually made and the proposal from the school received by
them. In the absence of any such material being produced
before this Court, this Court has to necessarily go by the
statement made on behalf of the petitioner School and also as
per the 2nd respondent proceedings itself dated 28.09.2019 and
the copy of the proposal enclosed in the typed set of document.
Therefore, the objection of the respondent resisting the prayer of
the petitioner is to be rejected, as being unfounded.
14. The recent order referred to by the learned counsel
for the petitioner in W.P.Nos.11574 and 11586 of 2020 dated
7.10.2020, therefore, covers the relief as prayed for by the
petitioner.
"7. This Court considered the objections, but as
far as the present claim on hand is concerned,
admittedly the appointments of the petitioners had been
made against the vacancies which existed prior to the
issuance of G.O.Ms.No.238 dated 13.11.2018. These
petitioners had also been admittedly appointed earlier
to the date of the said G.O., Therefore, this Court finds
that the reliance placed on the order passed by the
learned Single Judge in the above mentioned matter
(W.P. (MD) No.20527 of 2019) would clinch the issue
in favour of the petitioners herein. For due appreciation
of the claims of the petitioners herein, the relevant
portions of the order passed by the learned Single
Judge in Paragraphs 2 to 7 are extracted hereunder.
2.The learned counsel for the
petitioner would submit that the
Government Order itself cannot be
sustained and since the petitioner was
appointed in the post sanctioned in the
year 1996 itself in regular vacancy on
retirement and promotion, the reliance
on the subsequent G.O passed on
13.11.2018, is improper. Insofar as, the
sanctity of G.O(Ms) No.238 dated
13.11.2018 is concerned, the same is a
subject matter of batch of writ petitions,
which are said to be pending and
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therefore, I do not intend to go into the
merits of the grounds raised questioning
the validity of G.O(Ms) No.238.
Nevertheless the fact remains that the
proposal seeking for approval has now
been rejected based on the reliance
placed by the respondents on G.O(Ms)
No.238 dated 13.11.2018.
3. It is not in dispute that the
appointment of these two posts of
Record Clerk and Office Assistant were
based on the sanction granted on
28.12.1996 in G.O(Ms)No.1731,
Education Department. While that being
so, relying on the subsequent G.O(Ms)
No.238 for the purpose of rejection of
the approval is illegal, since G.O(Ms)
No.238 can only have a prospective
effect. In view of the same, the
consequential order passed by the
respondent dated 10.06.2019 is also
unsustainable. On this short ground, the
petitioner herein would be entitled to
succeed.
4.The learned counsel for the
petitioner had also placed reliance upon
a decision of this Court passed in
W.P(MD)No.19677 of 2019 dated
04.10.2019 in the case of The
Correspondent, St.Lasalle Higher
Secondary School Vs. The State of Tamil
Nadu and others, wherein this Court had
taken note of the fact that the post
involved in that case fell vacant prior to
issuance of G.O(Ms)No.238 and
therefore, reliance on G.O(Ms) No.238
for the sake of granting approval cannot
be sustained. A similar view was also
taken by this Court in W.P(MD)
Nos.27911 and 27912 of 2019 dated
20.09.2019 in the case of P.Manikandan
and other Vs. The Director of School
Education and others.
5.The learned counsel for the
petitioner had also relied upon a decision
of this Court in S.Rasheetha Banu Vs.
State of Tamil Nadu and others reported
in (2012) 4 MLJ 198, wherein the
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learned Single Judge of this Court had
held that if a person is appointed in a
sanctioned post, the approval of
appointment cannot be rejected on the
ground that there is a fall in strength and
the post became surplus. This Court was
of the view that for the purpose of
granting approval, the Teacher along
with the post could be transferred and
deployed to a needy school.
6.In the instant case also, if at all
the respondents were of the view that
there was a surplus, the option that
would have been available to the
respondents, would be to grant approval
to the said posts and the concerned
employee could have been redeployed to
the needy school and as such, the
rejection of the approval itself ought not
to have been exercised. In any event,
such a rejection by relying on
subsequent G.O is impermissible.
7.For all the aforesaid reasons,
the impugned order dated 03.04.2019,
issued by the third respondent in
O.Mu.No.3083/E1/2019 and the
consequential proceedings of the fourth
respondent in Na.Ka.No. 2211/A3/2019
dated ...06.2019, are set aside.
Consequently, there shall be a direction
to the third respondent herein to
disburse the grant~in~aid towards the
salaries of the two employees namely
S.Ignatius and D.Jeya Seela Rajathi from
the date of their appointment/promotion
together with all attendant benefits. Such
an exercise shall be completed atleast
within a period of six weeks from the
date of receipt of a copy of this order.
Accordingly, this Writ Petition stands
allowed. No costs. Consequently,
connected miscellaneous petitions are
closed."
8. This Court is of the considered view
that the claims of the petitioners are covered by
the aforesaid findings as set forth by the learned
Single Judge in the above paragraphs in all fours.
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Therefore, the writ petitions are allowed and the
impugned orders in Na.Ka.No.15638/A4/2018
dated 03.06.2020 and Na.Ka.No.7220/A2/2018
dated ..11.2018 (sign on 28.11.2018) rejecting
the approval of the petitioners are hereby set
aside. The second and third respondents in the
respective writ petition are directed to grant
approval to the appointment of the petitioners in
the fourth respondent school with effect from
their date of initial appointment with all
consequential benefits of arrears of salary and
allowances admissible to the petitioners, if their
appointment is found to be in order, otherwise.
The second and third respondents are directed to
pass appropriate orders in this regard within a
period of four weeks from the date of receipt of a
copy of this order."
15. In view of the above, the Writ Petition stands allowed and
the proceedings of the 2nd respondent made in
O.Mu.No.9544/A2/2019 dated 28.09.2019 is hereby quashed and
consequently, the respondents are directed to grant approval of
appointment to Mrs. L.Pasca Mary in the then sanctioned post of
Record Clerk in the petitioner School from the date of her
appointment from 03.09.2018, if her appointment is otherwise in
order. The respondents are directed to grant admissible benefits of
such approval being granted. The respondents are also directed to
pass appropriate orders in this regard within a period of four weeks
from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petitions are closed."
7. The learned counsel for the petitioners also referred to a judgment
rendered by another Division Bench of this Court in Writ Appeal No.1022 of
2020, dated 07.01.2021 (The Director of School Education, DPI Campus, College
Road, Chennai-600 006 and two others Vs. S.Murugan and another) (against
W.P.No.3939 of 2020, order dated 26.02.2020) pertaining to the same issue, and
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in the said judgment rendered in W.A.No.1022 of 2020, the learned counsel
referred to relevant paragraphs, which are extracted hereunder:
"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 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
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Order dated 15.12.2021 in
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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.
10. For the reasons above, the judgment and order
impugned are not interfered with. W.A.No.1022 of 2020 fails.
There will be no order as to costs. Consequently, CMP No.12464
of 2020 is closed."
8. On the subject matter of consideration, the learned counsel for the
petitioners also relied on a Division Bench decision of this Court, (Judgment
dated 03.08.2021 in Writ Appeal No.42 of 2021) (The Director of School
Education and two others Vs. DBTR National Higher Secondary School), the
relevant portion of which are extracted below:
"7. Next comes the question of
G.O.Ms.No.238, dated 13.11.2018. The said
Government Order is also of no avail to the appellants,
as the appointments were made by the School as early
as on 28.09.2018 and all the non-teaching staff had
joined duty on 01.10.2018, much prior to the issuance
of the above said Government Order. The above said
Government Order relates to non-teaching staff and
how the vacancies have to be filled etc. Clause (ix) of
the said Government Order states that “...if the staff is
appointed and is in service those staff by way of
retirement, promotion, death and in such reasons
when the vacancy arises, those posts will cease by
itself. Those posts should not be filled by appointment,
transfer or promotion.“ This was issued keeping in
view the fixation of non~teaching posts and usage of
the Government provided human resources, taking into
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Order dated 15.12.2021 in
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account the reduction in expenses to be incurred by
the Government. The above said regularization of the
strength of the non~teaching staff in Government
Aided Schools came into effect only from the date of
issuance of G.O., i.e., from 13.11.2018.
8. Admittedly these appointments were
made on 01.10.2018 before the said issuance of the
said G.O. and coming into effect of the same. The writ
petitioner School which has got the student strength of
more than 2000 would suffer without non~teaching
posts in the absence of manpower for maintenance of
establishment, sanitation, etc. It is pertinent to state
that G.O.Ms.No.115, dated 13.05.2017 was quashed
by this Court, as the same is without jurisdiction and it
is violative of the scheme of the Act. Similarly, the
1973 Act also does not prescribe taking prior
permission before making appointment in the
sanctioned posts, whenever a vacancy arose against
the same.
9. In a recent First Bench judgment in
W.A.No.1022 of 2020 dated 07.01.2021 (Director of
School Education and Others V. S.Murugan and
Another), it has been held that prior permission is not
required for filling up the vacancies in the sanctioned
posts of the non-teaching staff and the relevant portion
of the judgment reads 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
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Order dated 15.12.2021 in
W.P.Nos.6674 of 2020, etc. batch
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.“
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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Order dated 15.12.2021 in
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10. For the foregoing reasons, the Writ
Appeal filed by the appellants fail and the same
deserves to be dismissed and accordingly, dismissed.
The appellants are directed to grant approval of the
appointment of the non-teaching staff, in terms of the
proposal submitted by the writ petitioner School, after
satisfying the other requirements mandated in the
relevant enactments and disburse the grant-in-aid to
the writ petitioner School with effect from the date of
the appointment. The above said exercise has to be
completed and orders be passed within a period of
four weeks from the date of receipt of a copy of this
order. However, there will be no orders as to costs."
9. From the above extracted judgments, it is clear that the proposal which
was mooted and initiated prior to issuance of the said G.O.Ms.No.238, dated
13.11.2019, (School Education Department), cannot be covered under the said
G.O. and this Court allowed similar claims either at the instance of the employee
concerned or by the School which sought approval for the appointments in the
sanctioned vacancies.
10. As the present batch of the Writ Petitions, is covered by the above
orders passed in Writ Petitions/Writ Appeals and factually established that the
appointments in question had taken place much prior to issuance of
G.O.Ms.No.238, dated 13.11.2019 (School Education Department), the non-grant
of approval by relying upon the said G.O., cannot be countenanced both in law
and on facts.
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Order dated 15.12.2021 in
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11. Further, if the impugned rejection order is passed on the basis of the
said G.O.Ms.No.238, the respective impugned rejection orders passed by the
educational authorities, are hereby set aside and the concerned educational
authorities are directed to consider the proposal seeking approval to the
respective appointments without reference to the said G.O.Ms.No.238, if such
appointments were otherwise in order.
12. The educational authorities are directed to pass appropriate orders in
respect of each of the proposals pending consideration, within a period of four
weeks from the date of receipt of a copy of this order, or on production of a
web-copy of this order, whichever is earlier. On approval of the appointments, it
is hereby clarified that, the staff concerned will be entitled to all consequential
and attendant benefits, including the arrears of salary and allowances, as
admissible.
13. With the above directions, all these batch of Writ Petitions are allowed
as prayed for.
14. No costs. Consequently, connected W.M.Ps. are closed.
15.12.2021
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Order dated 15.12.2021 in
W.P.Nos.6674 of 2020, etc. batch
Index: Yes/no
Speaking Order: Yes
cs
V. PARTHIBAN, J
cs
Writ Petition Nos.6674, 6677, 3324,
7220, 15641 and 16805 of 2020 and
7467, 21328 and 21714 of 2021
15.12.2021
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