Madras High Court
The Director Of School Education vs T.Baskaran on 15 December, 2021
W.A.(MD).No.2192 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.(MD).No.2192 of 2021
AND
C.M.P.(MD)No.10798 of 2021
1.The Director of School Education,
DPI Campus,
College Road, Chennai.
2.The Joint Director of School Education (Higher Secondary),
DPI Campus,
College Road, Chennai.
3.The Chief Educational Officer,
Tuticorin District.
4.The District Educational Officer,
Tuticorin District. ... Appellants
Vs.
1.T.Baskaran,
2.Karapettai Nadar Higher Secondary School,
Tuticorin,
represented by its Secretary,
N.T.Selvaraj ... Respondents
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W.A.(MD).No.2192 of 2021
Prayer:Writ Appeal filed under Clause XV of the Letters Patent Act, praying
this Court to set aside the order dated 12.07.2021 made in W.P(MD)No.19992
of 2020.
For Appellant : Mr.M.Sidharthan
Additional Government Pleader
For R1 : Mr.V.Meenakshi Sundaram
JUDGMENT
(Judgment of the Court was delivered by P.VELMURUGAN,J.)
This writ appeal has been filed by the appellants against the order,
dated 12.07.2021 passed in W.P(MD)No.19992 of 2020.
2. The case of the first respondent / Writ Petitioner is that he was
appointed as a Watchman in the second respondent school on 11.06.2018 and
joined in the school on the same day, in the vacancy that arose due to the
demise of a staff, in a sanctioned post. The second respondent school is an
aided non-minority school, getting grants-in-aid from the Government of Tamil
Nadu. After the appointment of the first respondent in the second respondent
school, the second respondent sent a proposal for approval of the appointment
to the third appellant and he rejected the proposals submitted by the second
respondent school committee, by order, dated 09.12.2020, made in Na.Ka.No.
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W.A.(MD).No.2192 of 2021
5881/Aa4/2019. Aggrieved by the said order of rejection, the first respondent
filed the writ petition in W.P.(MD)No.19992 of 2020 before this Court. The
Writ Court allowed the writ petition. Aggrieved over the same, the present Writ
Appeal has been filed by the Education Department.
3. The learned Additional Government Pleader appearing for the
appellants would submit that without prior approval of the appellants, the
second respondent has appointed the first respondent and they have not
followed the guidelines of the Government issued in various Government
Orders. The first respondent was not appointed by a legally constituted
committee. The tenure of the School Committee, the President and the
Secretary, cannot be extended, if the tenure of Secretary expires. The
appointment made by the Secretary after the expiry of his tenure, is invalid.
Therefore, the third appellant has rightly rejected the proposal sent by the
second respondent.
4. The learned Additional Government Pleader appearing for the
appellants would further submit that the learned Single Judge failed to
appreciate the fact that without prior approval from the appellants, the first
respondent was appointed and the appointment was not made by a legally
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W.A.(MD).No.2192 of 2021
constituted committee. Therefore, the order of the learned Single Judge is
liable to be set aside. He would further submit that the appointment of the first
respondent was made when the interim order is in force.
5. The learned counsel for the first respondent would submit that the
first respondent was appointed in a sanctioned post. Originally, one R.D.James
was working as Watchman in the sanctioned post. Due to his demise on
31.12.2005, the second respondent herein sought for the list of eligible
candidates from the Employment Exchange. They did not furnish any list of
eligible candidates, stating the reason that the appointment of the Secretary of
the second respondent school was not approved. Since the Employment
Exchange did not furnish the list of eligible candidates, the second respondent
published an advertisement in a newspaper, calling for applications for
appointment of Watchman in the second respondent school and the second
respondent school selected the first respondent. Subsequently, the second
respondent sent a proposal for approval of the appointment of the first
respondent and the same was rejected. Challenging the impugned order of
rejection, the first respondent approached this Court by way of writ petition in
W.P.(MD)No.19992 of 2020. The learned Single Judge rightly appreciated and
answered the objection raised by the appellants herein and allowed the writ
petition. Challenging the same, Department has come up with this Writ Appeal.
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W.A.(MD).No.2192 of 2021
6. Heard Mr.M.Sidharthan, Additional Government Pleader appearing
for the appellants and Mr.V.Meenakshi Sundaram, learned counsel appearing
for the first respondent and perused the materials placed before this Court.
7. Admittedly, the first respondent was appointed as a Watchman in
the sanctioned post in the second respondent school. After the appointment, the
second respondent sent a proposal to the third appellant, for approval of the
appointment of the first respondent. He rejected the same. The appellants have
taken two grounds, challenging the order of the learned Single Judge that the
tenure of the Secretary of the second respondent school was expired and
therefore, the appointment made by the Secretary after the expiry of his tenure,
is not valid. In this regard, this Court already dealt with the similar matters in
W.P.(MD)No.2145 of 2021 dated 01.12.2021. The relevant portion of the order
is extracted hereunder:
“4.Against the dismissal of the Writ Petition(MD)Nos.
19905 and 19906 of 2017, Writ Appeal(MD)Nos.1711 and 1712
of 2018 were filed. The said appeals were decided on
08.05.2019 and the writ appeal were allowed, as the erstwhile
Secretary himself, who contested in the election, was elected
again as Secretary in the second respondent school and the said
Secretary had appointed the writ petitioner as Office Assistant.
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W.A.(MD).No.2192 of 2021
Therefore, when the Secretary was in the office, the said
appointment was made. The Writ Court had allowed the writ
petition.
5.In fact, in the judgement of the writ appeals, the
question of the powers of the Secretaries when the order of
interim stay in force, was also discussed, which was relied upon
by the learned single Judge and allowed the Writ Petition.
Therefore, the objection raised by the Government that the
approval for appointment made by the Secretary, who was not in
office, is erroneous and the said argument is not sustainable, as
already the Division Bench held that the appointment made by
the Secretary was valid.”
8. As far as the mode of appointment is concerned, it is to be noted
that the second respondent school sought for eligible candidates from the
Employment Exchange. However, the Employment Exchange did not furnish
the list of eligible candidates, instead he sent a reply, stating that the
appointment of the Secretary of the second respondent school was not
approved. Therefore, the second respondent school has given a publication in a
newspaper, calling for the eligible candidates and after shortlisting the
candidates by conducting interview, they selected the first respondent. Since it
is a sanctioned post and the person who was working in the place also died,
subsequently, the petitioner was appointed in the place of said vacancy. Since it
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W.A.(MD).No.2192 of 2021
is a sanctioned post and the second respondent school is a aided non-minority
school and the post in which the first respondent was appointed, is a non-
teaching post, the grounds taken by the appellants are not sustainable.
Regarding the appointment of non-teaching staff in the sanctioned post is
concerned, the first respondent referred to the judgment in the case of Deva
Asir vs. Secretary to the Government, School Education Department,
Chennai, reported in [2016-III-LLJ-49(Mad)] where it is held as follows:
“ 24.1.The learned counsels for the petitioners
submitted that once the posts are sanctioned by the Director
under Rule 15(1) of the Rules, the DEOs/DEEOs are bound to
sanction grant as per Rule 11(2) of the Rules and there is no need
to get prior permission from any authority to fill the vacancies
that would arise in those sanctioned posts. Unless the Sate
Government suitably amends the provisions of the Act and the
Rules making it mandatory to obtain prior permission for filing
up of those sanctioned non-teaching posts, the Government could
not issue impugned Government orders. I am in entire agreement
with the said submission. Since there is no such provision in the
Act and the Rules to seek prior permission, the official
respondents in these writ petitions, DEOs/DEEOs, could not rely
on the impugned Government Orders/Government Letters to seek
permission of the State Government or the Director or any
authority to fill up the sanctioned posts for approving of the same
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W.A.(MD).No.2192 of 2021
for the purpose of grant and therefore, the impugned Government
Orders and the consequential proceedings refusing to approve of
the non-teaching posts for the purpose of grant are issued in
gross violation of the provisions of Section 19 and 20 of the Act
read with Rule 15 of the Rules.”
9.For the foregoing reasons, there is no merit in this Writ Appeal,
therefore, this Writ Appeal stands dismissed. No costs. Consequently,
connected miscellaneous petition is also closed.
(P.S.N.J.,) (P.V.J.,)
15.12.2021
Index : Yes / No
Internet : Yes / No
pnn
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.
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W.A.(MD).No.2192 of 2021
PUSHPA SATHYANARAYANA, J.,
and
P.VELMURUGAN,J.,
pnn
W.A.(MD).No.2192 of 2021
15.12.2021
https://www.mhc.tn.gov.in/judis
