Madras High Court
The Secretary vs The State Of Tamil Nadu on 18 February, 2021
W.P.(MD) No.13161 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.13161 of 2019
and W.M.P.(MD).No.9802 of 2019
The Secretary,
K.Nataraja Pillai Memorial,
Madurai Pillaimar Sangam,
Higher Secondary School,
Sammattipuram,
Madurai – 625 010. ...Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Department of School Education,
Fort St.George, Chennai-600 009.
2.The Director of School Education,
College Road, Chennai- 600 009.
3.The Chief Educational Officer,
Madurai, Madurai District.
4.The District Educational Officer,
Thirumangalam -625 706,
Madurai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, directing the 3rd and 4th
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W.P.(MD) No.13161 of 2019
respondents herein to approve forthwith the appointment of
P.Balasundari as Junior Assistant in the petitioner's School w.e.f. The
date of her appointment i.e., 07.06.2004 and to disburse all attendant
benefits including the arrears of salary and allowance.
For Petitioner : Ms.A.Amala
For Respondents : Mr.A.Thiyagarajan,
Government Advocate
ORDER
The petitioner is a minority institution. The sanctioned post of
Junior Assistant in the petitioner School fell vacant on 20.04.2004 and in
the said vacancy, the petitioner-school had appointed one P.Balasundari
on 07.06.2004. The proposal for approval of such appointment was sent
belatedly on 07.11.2007. Consequently, the fourth respondent herein had
approved the proposal from 07.11.2007 instead of 07.06.2004. Since the
petitioner was entitled to seek for approval from 07.06.2004 itself, they
had approached the fourth respondent herein and made several
representations in this regard. But, no order has been passed by the
fourth respondent till date. Hence, the present writ petition has been
filed.
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W.P.(MD) No.13161 of 2019
2. The petitioner being a minority institution, does not require to
seek prior permission from the authorities to fill up a sanctioned post.
This preposition came up for consideration in various decisions and in
one such decision in the case of Correspondent, Holy Family Girls
Higher Secondary School vs. State of Tamilnadu and others, in W.P.
(MD)No.3226 of 2019, this Court had held that the minority institutions
therein were entitled for approval of the appointment of Teacher from the
date on which the appointments are made. The relevant portion reads as
follows:
“11. It is not in dispute that the
appointment was made against the sanctioned
post.
12. It is trite that no prior permission is
required from the Director of School Education
to fill up a sanctioned post, in a minority
institution.
13. At this juncture, it is more profitable to
refer to the relevant paragraphs of the judgment
in Deva Asir v. The Secretary to Government,
School Education Department and others
[2016(3) LW 152], which are as under:
"8. Teaching and non-teaching staff of
the Non-minority Private Aided Schools are
appointed by the School Committee by
following the Act and the Rules. In the case
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W.P.(MD) No.13161 of 2019
of Minority Private Aided Schools, the
Educational Agency is the appointing
authority and though various provisions of
the Act and the Rules are not applicable to
the Minority Educational Institutions,
Section 19 of the Act and Rule 15 of the
Rules are applicable to those Institutions
also. Admittedly, all the Private Schools -
Minority and Non-Minority - concerned in
these writ petitions are in receipt of Aid
From the Tamil Nadu Government for the
posts sanctioned by the Director of School
Education, as per Rule 15(1) of the Rules
and the DEOs/DEEOs are the grant
sanctioning authorities to those sanctioned
posts under Rule 11(2) of the Rules.
Whenever vacancies arise in those
sanctioned posts due to
death/retirement/resignation, etc. these
Private Aided Schools could fill those
vacancies as per the provisions of the Act
and the Rules for filling up those posts, the
Act and the Rules do not contemplate
seeking of prior permission from any
authority. The vacancies shall be filled
immediately. If there is any delay in filling
up the vacancies in respect of the teaching
as well as the non-teaching posts, it would
result in serious prejudice and damage to
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W.P.(MD) No.13161 of 2019
the educational interest of the downtrodden
people, who only enter the portals of these
Aided Schools.
32.2. Emphasis is made to "such
payment of grants shall be subject to
Government Orders and instructions issued
from time to time" that appears in the later
portion of Rule 11. I am not in agreement
with the submission made by the learned
Special Government Pleader that the
Government has unfettered power to issue
directions and instructions in relation to
the grant of aid to the Private Schools, that
are governed by the Act and the Rules. The
directions and instructions that could be
issued by the Government should be under
the Act and the Rules and the same cannot
be outside the Act and the Rules.
33. ...It is the submission of the
learned Special Government Pleader that
the Government has unfettered discretion
to decide about the sanction of grant even
when the appointments are made to the
sanctioned posts. In my view, if an
appointment is made to the sanctioned
posts that are sanctioned by the Director
under Rule 15(1), then the DEOs/DEEOs are
bound to sanction grant and the
DEOs/DEEOs could not ask the school to
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W.P.(MD) No.13161 of 2019
seek permission from the Government
before appointing a non-teaching staff in
the sanctioned post, whenever vacancies
arise in the sanctioned posts due to
death/retirement/resignation, etc.,. Hence,
this submission has no merit and whatever
reasons given for rejecting submission (i) of
the learned Special Government Pleader
would equally apply to reject submission (ii)
also."
14. The issue relating to permission from
the Government before appointing a non-
teaching staff in a Minority Educational
Institution, that too, in a sanctioned vacancy, is
not necessary and it is the bounden duty of the
authorities concerned to sanction grant, had
been dealt with in detail in the case referred to
supra.
15. In the case at hand also, the School is
the Minority Educational Institution and the
appointment was made in the sanctioned post.
In such an event, permission from the Director of
School Education before making such
appointment has no relevance and the fourth
respondent is liable to grant sanction to the
appointee and thus, the approval granted to
S.Sekar with effect from 11.01.2010 cannot
stand in the eye of law.
16. In such view of the matter, a Writ in the
nature of a Writ of Mandamus is issued,
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W.P.(MD) No.13161 of 2019
directing the third and fourth respondents to
approve the appointment of Thiru.S.Sekar as
Junior Assistant in the petitioner's School with
effect from 26.11.2007, i.e., from the date of his
appointment, forthwith and disburse all
attendant benefits including the arrears of salary
and allowance, etc., which he is legally entitled
to, within a period of eight weeks from the date
of receipt of a copy of this order.”
3. The above said extract is self-explanatory. Further, it is brought
to the notice of this Court that pursuant to the above said order passed in
the case of Holy Family Higher Secondary School vs. State of
Tamilnadu and others, (Supra) the order came to be complied by the
authorities and the approval was also extended from the date of that
teacher's appointment. In this backdrop, the respondents are not justified
in granting approval to the Junior Assistant attached to the petitioner's
school, from the date of her appointment.
4. At this juncture, the learned Government Advocate would
submit that the authority to grant approval is now vested with the Chief
Educational Officer, who is the third respondent herein. Accordingly, the
third respondent herein is directed to grant approval for appointment of
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W.P.(MD) No.13161 of 2019
the said P.Balasundari, as Junior Assistant from the date of her
appointment, ie., from 07.06.2004 and disburse the grant-in-aid towards
her salary, with all attendant benefits from such date, atleast within a
period of eight weeks from the date of receipt of a copy of this order.
5. The Writ Petition stands allowed accordingly. No Costs.
Consequently, connected miscellaneous petitions are closed.
18.02.2021
Index : Yes / No
Internet : Yes / No
TM
http://www.judis.nic.in
W.P.(MD) No.13161 of 2019
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.
To
1.The Secretary,
The State of Tamil Nadu,
Department of School Education,
Fort St.George, Chennai-600 009.
2.The Director of School Education,
College Road, Chennai- 600 009.
3.The Chief Educational Officer,
Madurai, Madurai District.
4.The District Educational Officer,
Thirumangalam -625 706,
Madurai District.
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W.P.(MD) No.13161 of 2019
M.S.RAMESH, J.
TM
W.P.(MD) No.13161 of 2019
18.02.2021
http://www.judis.nic.in
