Madras High Court
S.R.Chandru Manikandan vs The Director Of School Education on 12 July, 2021
W.P(MD)No.37 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.37 of 2021
S.R.Chandru Manikandan ... Petitioner
vs.
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.
5.Karappettai Nadar Higher Secondary School,
Tuticorin,
Rep. By its Secretary,
N.T.Selvaraj. ... Respondents
1/14
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W.P(MD)No.37 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records of the
impugned order passed by the third respondent herein in his proceedings in
Na.Ka.No.5881/Aa4/2019, dated 09.12.2020 and quash the same as illegal and
further direct the 3rd and 4th respondents herein to approve the petitioner's
appointment as Office Assistant in Karappettai Nadar Higher Secondary School,
Tuticorin with effect from 11.06.2018.
For Petitioner : Mr.G.Mohankumar
For Respondents : Mr.K.S.Selvaganesan,
Government Advocate for R1 to R4
Mr.D.Nallathambi for R5.
ORDER
This Writ Petition has been filed challenging the order of the third
respondent in Na.Ka.No.5881/Aa4/2019, dated 09.12.2020 and for a
consequential direction to the respondents 3 and 4 to approve the appointment of
the petitioner as Office Assistant in the fifth respondent school- Karappettai
Nadar Higher Secondary School, Tuticorin with effect from 11.06.2018.
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W.P(MD)No.37 of 2021
2. Learned counsel appearing for the petitioner submitted that the petitioner
was appointed as Office Assistant on 11.06.2018. The fifth respondent school
sent a proposal to the fourth respondent for approval. The fourth respondent did
not pass any order on the proposal of the fifth respondent school. Hence, the
petitioner has filed W.P.(MD)No.19510/2019, seeking a direction to the
respondents 3 and 4 to consider the proposal dated 27.07.2018, forwarded by the
fifth respondent in respect of his appointment as Office Assistant, in the fifth
respondent school with effect from 11.06.2018. This Court, by order dated
17.09.2019, directed the respondents 3 and 4 to consider the proposal sent by the
fifth respondent and pass orders within eight weeks, after giving opportunity to
the petitioner. As per the order of this Court, the third respondent issued notice
to the petitioner and the fifth respondent for personal hearing held on 24.11.2020.
The petitioner and the fifth respondent appeared before the third respondent and
produced all the required documents and explained the facts. However, the third
respondent rejected the proposal on the ground of non production of approval of
Secretary to the fifth respondent school and list of candidates furnished by the
employment exchange. Challenging the same, the present Writ petition is filed.
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W.P(MD)No.37 of 2021
3. Learned counsel appearing for the petitioner further submitted that there
was some dispute with regard to the post of Secretary in the fifth respondent
school and therefore, W.P(MD)Nos.19905 and 19906 of 2017 have been filed by
the fifth respondent before this Court. This Court has granted an interim order.
The request of the fifth respondent school to furnish list of candidates was
rejected by the Employment Exchange, by its reply dated 23.04.2018, on the
ground that there is no Secretary in the fifth respondent school. The fifth
respondent, after issuing Notification in daily newspaper, conducted interview for
the candidates, who appeared for the post and appointed the petitioner to the post
of Office Assistant. After dismissal of writ petitions in W.P(MD)Nos.19905 and
19906 of 2017, Writ Appeal(MD)Nos.1711 and 1712 of 2018 have been filed
before this Court. The Division Bench of this Court, by judgment dated
08.05.2019, allowed the Writ Appeals and election was conducted for the post of
Secretary and the very same earlier Secretary was elected again as Secretary of
the fifth respondent school, who appointed the petitioner. The third respondent
failed to follow the procedure of approval of sanctioned post of Office Assistant
and failed to take into consideration the students strength of the fifth respondent
school. The third respondent ought to have considered the application made in
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W.P(MD)No.37 of 2021
the newspaper prior to the appointment of the petitioner and there is no violation
of any Rules, while filling up the present post of Office Assistant. The third
respondent ought not have rejected the proposal, by taking into consideration the
fact that the present post is a sanctioned non-teaching post. The appointment of
the petitioner, made on 11.06.2018, is valid, as the tenure of incumbent Secretary
was protected by the interim order of this Court and the appointment made in the
capacity as Secretary is valid and prayed for allowing the writ petition.
4. In support of his submission, the learned counsel appearing for the
petitioner has relied on a judgment of this Court in Deva Asir vs. Secretary to the
Government, School Education Department, Chennai, reported in 2016-III-
LLJ-49 (Mad), wherein this Court has 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 State Government suitably amends
the provisions of the Act and the Rules making it mandatory to
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W.P(MD)No.37 of 2021
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 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 Sections 19 and 20 of the Act read with Rule 15 of the
Rules.”
5. Respondents 1 to 4 have filed counter affidavit. Mr.K.S.Selvaganesan,
learned Government Advocate appearing for the respondents 1 to 4 submitted that
the petitioner was not appointed by a legally constituted School Committee. The
tenure of 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 not valid. The petitioner is only an employee in the
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W.P(MD)No.37 of 2021
fifth respondent school and working without approval for his appointment. The
School Committee is the authority for appointment of staff. The petitioner has
not impleaded the School Committee. When the petitioner was appointed, the
appointment of newly elected Secretary was not approved by the authority. As
per the order of this Court dated 17.09.2019, passed in W.P.(MD)No.19510 of
2019, the third respondent gave personal hearing to the petitioner and the fifth
respondent and fifth respondent submitted explanation in support of the
petitioner. After considering all the materials, the third respondent rightly
rejected the proposal for the reasons mentioned in the impugned order. The same
is valid and legal and prayed for dismissal of this Writ Petition.
6. Heard the learned counsel appearing for the petitioner, learned
Government Advocate appearing for the respondents 1 to 4 and the learned
counsel appearing for the fifth respondent.
7. From the materials on record, it is seen that the petitioner was appointed
as Office Assistant in the sanctioned post, when the earlier incumbent
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S.Arivuputhiran, went on voluntary retirement. The fifth respondent sought for
the list of eligible candidates from the Employment Exchange. Employment
Exchange, by its reply dated 23.04.2018, did not furnish the names of candidates
on the ground that the appointment of the Secretary of the fifth respondent school
was not approved. The learned counsel for the petitioner referred to the letter
addressed by the fifth respondent to the Employment Exchange and the reply sent
by the Employment Exchange, dated 23.04.2018, filed in the typed set of papers.
In such circumstances, the fifth respondent published in newspaper, calling for
applications for appointment of Office Assistant in the fifth respondent school.
The failure on the part of the Employment Exchange cannot be put against the
fifth respondent and cannot be faulted with the procedure adopted by the fifth
respondent. According to the petitioner, only after publishing advertisement in
the newspaper, he applied for the post and after interview of eligible candidates,
the petitioner was appointed, as he was the most suitable candidate. In view of
the same, the selection and appointment of the petitioner cannot be termed as
illegal, as the fifth respondent school made efforts to get the list of eligible
candidates from the Employment Exchange.
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W.P(MD)No.37 of 2021
8. The other reason given in the impugned order is to furnish the approval
of Secretary, who appointed the petitioner. According to the petitioner, W.P.
(MD)Nos.19905 and 19906 of 2017, were filed by the fifth respondent, with
regard to the dispute in the School Committee. In view of the interim order
passed by this Court in the said Writ Petitions, the Secretary continued in his post.
During that time only, the petitioner was appointed as Office Assistant by the
Secretary, who was permitted to act as Secretary of the fifth respondent school.
The above said Writ Petitions were dismissed on 29.10.2018. Aggrieved over the
same Writ Appeal(MD)Nos.1711 and 1712 of 2018 were filed. The Division
Bench of this Court, by judgment dated 08.05.2019, allowed the Writ Appeals and
the relevant portions of the said judgment are extracted hereunder:
“7. It is not in dispute that the delay application came to be
dismissed and this Special Leave Petition (Civil).No.170 of 2014,
which was filed challenging the order passed in C.R.P.(MD).No.
1839 of 2012, also was dismissed on 07.01.2014. The learned Sub
Judge passed a further order in I.A.No.678 of 2012, on 25.04.2014,
directing the Society to conduct the election and to report the same
on 16.06.2014. Assailing the order, the Society preferred another
revision in C.R.P.(MD).No.1053 of 2014. This Court on 07.05.2014
directed the Society to conduct the election and to report the
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compliance without announcing the results. Accordingly, the
election to the Society was conducted on 18.06.2014, but the results
were withheld as per the direction of this Court. Eventually, this
Court dismissed the C.R.P.(MD).No.1053 of 2014 on 18.09.2014
with a direction to declare the results. The new Office Bearers
assumed office on 24.09.2014. One Mr.C.S.Rajendran, was elected
as a President, while Mr.P.Vinayagamoorthy, was elected as a
Secretary.
............
............
31. Indisputably the last triennium ended in 2017.
Therefore, the District Registrar (Registration and Societies)
Thoothukudi, is hereby directed to conduct the election either by
himself or by appointing an responsible Officer to the Thoothukudi
Vadathisai Hindu Nadar Mahamai Dharma karapettai Paripalana
Sangam with the available members in Members' list already
registered in Form VII i.e., 774 as expeditiously as possible,
however not later than two months from the date of receipt of a
copy of this order.
32. The next issue arises for consideration is whether the
Secretary of Karapettai Nadar Higher Secondary School is entitled
to continue till the new office bearers assume office.
33. It is pertinent to note that as per the Bye-law 10 of the
Society, the elected member shall continue to hold the office till a
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new team assumes office. A resolution was passed by the Executive
Committee of Karapettai Nadar School Paripalana Sabai on
08.09.2017 authorising / approving extension of the term of the
office bearers till a new office bearers are elected. This Court
issued a direction to hold election within a period of two months.
Taking note of the above facts, the Secretary of karapettai Nadar
High School is permitted to continue the post until new office
bearers are elected.”
9. From the above judgment made in the Writ Appeals, it is clear that the
School Committee and Office bearers will continue in service till the new office
bearers are elected. The earlier Secretary continued to function as Secretary as
per the interim order in the Writ Petition and as per the judgment of the Division
Bench of this Court dated 08.05.2019, nade in W.A.(MD)Nos.1711 and 1712 of
2018.
10. In view of the interim order in the Writ Petition and the judgment of the
Division Bench of this Court in W.A.(MD)Nos.1711 and 1712 of 2018, the
direction of third respondent in the impugned order to produce the order for
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W.P(MD)No.37 of 2021
approval of appointment of the Secretary is erroneous, invalid and illegal. The
third respondent has failed to consider the order passed in the Writ Petitions,
judgment of the Division Bench of this court in the Writ Appeals. The petitioner
was appointed on 11.06.2018 by the Secretary, who was legally permitted to act
as Secretary of the fifth respondent school. In view of the same, the reason given
in the impugned order for rejecting the proposal is not correct and therefore, the
impugned order is liable to be quashed.
11. For the above reasons, the impugned order passed by the third
respondent in Na.Ka.No.5881/Aa4/2019, dated 09.12.2020, is quashed.
Accordingly, this Writ Petition is allowed. No costs. The respondents 3 and 4 are
directed to approve the appointment of the petitioner as Office Assistant in the
fifth respondent school and pass orders within a period of twelve (12) weeks from
the date of receipt of a copy of this order.
12.07.2021
Index : Yes / No
Internet : Yes / No
vsm
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W.P(MD)No.37 of 2021
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 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.
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W.P(MD)No.37 of 2021
V.M.VELUMANI,J.
vsm
W.P(MD)No.37 of 2021
12.07.2021
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