Madras High Court
The Director Of School Education vs S.Murugan on 7 January, 2021
W.A.No.1022 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.1022 of 2020
1. The Director of School Education
DPI Campus, College Road
Chennai 600 006.
2. The Chief Educational Officer
Thiruvarur District
Thiruvarur.
3. The District Educational Officer
Thiruvarur Educational District
Thiruvarur. ... Appellants
Vs.
1. S.Murugan
2. The Secretary
Vadamattam Higher Secondary School
Konerirajapuram
Kudavasal Taluk
Tiruvarur District. ... Respondents
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W.A.No.1022 of 2020
Prayer: Appeal filed under Clause 15 of the Letters Patent against
the order dated 26.02.2020 in W.P.No.3939 of 2020.
For Appellants : Mr.C.Munusamy
Spl. Government Pleader
(Education)
For 1st Respondent : Mr.G.Sankaran
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appeal is directed against a judgment and order dated
February 26, 2020 passed on a writ petition filed by the first
respondent herein.
2. The respondent School has a sanctioned post of an Office
Assistant. Upon such post falling vacant, the appointment process was
initiated in and about 2018 and the writ petitioner qualified. However,
in accordance with the Rules or pursuant to relevant notifications
issued in such regard, the appointment could only be made upon
seeking the permission of the District Educational Officer. The
respondent School sought permission. No immediate response was
forthcoming.
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W.A.No.1022 of 2020
3. The first respondent herein was constrained to institute
proceedings under Article 226 of the Constitution in 2019 upon the
appellants' failure to consider the School's request for the appropriate
permission. Such writ petition, W.P.No.29812 of 2019, was disposed of
by this Court with a direction to the respondent authorities in that case
to dispose of the request made by the School.
4. Ultimately, the permission was declined and it is such order of
December 12, 2019, which was challenged in the present proceedings.
In essence, the learned Single Judge held that there was no room for
seeking permission for appointment of any non-teaching staff of a
Government-aided School. The other ground indicated in the impugned
order is that there was no requirement to engage only surplus staff
posted at other Government-aided Schools in the District or of the
nearby locality, once the post was sanctioned for the relevant School.
5. On behalf of the appellants, it is contended that the post
became vacant in 2014 and the exercise to fill up the vacant post was
undertaken belatedly in 2018. Such aspect of the matter is utterly
irrelevant in the present context.
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W.A.No.1022 of 2020
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
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W.A.No.1022 of 2020
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.
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W.A.No.1022 of 2020
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.
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.
(S.B., CJ.) (S.K.R., J.)
07.01.2021
Index : Yes
kpl
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W.A.No.1022 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(kpl)
W.A.No.1022 of 2020
07.01.2021
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