Madras High Court
The Director Of Elementary ... vs V.Mahalakshmi on 16 July, 2021
W.A.No.2907 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.03.2022
Pronounced on : 29.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. No.2907 of 2021
and C.M.P.No.19643 of 2021
1.The Director of Elementary Education,
DPI Campus, College Road,
Chennai-600 006.
2.The Chief Educational Officer,
Villupuram District,
Villupuram.
3.The District Educational Officer,
Kallakurichi,
Villupuram District.
4.The Block Educational Officer,
Chinnasalem, Villupuram District. ...Appellants
Vs.
1.V.Mahalakshmi
2.The Secretary,
Azath Middle School,
Mettupalayam, Chinnasalem Union,
Chinnasalem Taluk, Villupuram District. ... Respondents
1/12
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W.A.No.2907 of 2021
Prayer:Writ appeal is filed under Clause 15 of the Letter Patents Act
praying to set aside the order of this Court in W.P.No.2503 of 2020 dated
16.07.2021.
For Appellant : M/s.Mythreya Chandru
Special Govt. Pleader
For Respondent 1 : Mr.G.Sankaran
For Respondent 2 : No appearance
*****
JUDGMENT
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
This intra court appeal has been filed against the order of the learned
Single Judge in W.P.No.2503 of 2020 dated 16.07.2021 on the premise that
the direction to the appellants to grant approval of the appointment of the
1st Respondent is unjustified and contrary to the directions of this Court in
the batch of matters in W.A.(MD) Nos.76, 225, 341 of 2019 etc.,
2. Brief facts:
i) The 1st Respondent was appointed as Secondary Grade Teacher in
the 2nd Respondent / Aided Minority School (hereinafter referred to as "2nd
Respondent/ School) on 17.10.2018, in view of the vacancy that arose due
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W.A.No.2907 of 2021
to the retirement of Tmt.C.Poongodi on 31.05.2018. Admittedly, the post to
which the 1st Respondent was appointed was a regular sanctioned post. The
1st Respondent was qualified for the post of Secondary Grade Teacher.
ii) The 2nd Respondent/ School sought the approval of the
appointment of the 1st Respondent as Secondary Grade Teacher, however,
the 3rd appellant viz., District Educational Officer, Villupuram District vide
order dated 17.05.2019 rejected the approval on the ground that the said
post has been rendered surplus in view of the reduction in the strength of the
students and thus taking into account the student-teacher ratio, the post
having become surplus cannot be approved.
iii) Aggrieved by the same, the 1st Respondent had filed a writ
petition before this Court in W.P.No.12004 of 2019 seeking approval of her
appointment. This Court vide order dated 03.09.2019 without expressing
any opinion on merits was pleased to direct the 1st respondent to dispose the
proposal of the School Management forwarded by the 3rd respondent.
Pursuant thereto, the 1st Respondent herein vide order dated
03.01.2020 by placing reliance on the opinion of the Government Pleader
and the Children Right to Free and Compulsory Education Act-2009 in
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W.A.No.2907 of 2021
particular Sections 19 and 25 rejected the approval stating that there was no
scope of approval of the Secondary Grade Teacher in view of the provisions
of the aforesaid Act and taking into account the strength of students in the
2nd Respondent / School the eligible post was only five (5) Secondary
Grade Teachers and one (1) Head Master. Thus, there was no scope for an
additional Secondary Grade Teacher. Consequently, the request for approval
of the appointment of the 1st Respondent was rejected.
3. Order of the learned Single Judge:
Against the said rejection for approval, the 1st Respondent filed the
writ petition on the premise that the rejection of approval was contrary to
the decision of the Division Bench of this Court in W.A.No.1263 of 2001
dated 22.01.2004 and the order in W.A.(MD).Nos.703 of 2009 dated
01.02.2011 and also contrary to Section 26 of the Tamil Nadu Recognised
School Regulation Act. The learned Single Judge was pleased to quash the
impugned order dated 03.01.2020.
The learned Single Judge on considering the orders of the Division
Bench of this Court as well as Section 26 of the Tamil Nadu Recognised
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W.A.No.2907 of 2021
School Regulation Act, directed the Respondents 1 to 4 in the writ petition
to grant approval of appointment to the 1st Respondent and further stated
that if the authorities were of the view that there were surplus teacher posts
in the 2nd Respondent/School, they shall re-deploy the 1st Respondent to
such needy schools, where her services may be required.
4. Aggrieved by the order of the learned Single Judge, the
Respondents 1 to 4 in the writ petition have preferred this appeal primarily
on the premise that the direction of the learned Single Judge is contrary to
the direction of the Division Bench of the Madurai Bench of this Court in
W.A.No.76 of 2019 and etc., batch case, dated 31.03.2021.
5. The question as to whether appointment of the teacher to a
sanctioned post can be denied approval on the basis that there is a reduction
in the strength of the students, had arisen for consideration before the
Division Bench of this Court in W.A.No.1263 of 2001 dated 22.01.2004
wherein it was held as under:
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W.A.No.2907 of 2021
“6. The issue to be decided in this Writ Petition is as to
whether the petitioner was appointed in a sanctioned post.
Admittedly, on 01.04.1998, the post of Secondary Grade
Teacher became vacant and the petitioner was appointed in
the sanctioned post. The only objection raised is that the fifth
respondent school was not declared as a Minority Institution.
On a perusal of the records, it is seen that the Civil Suit filed
by the fifth respondent school was dismissed and the Judgment
and Decree passed by the Lower Court was reversed in the
appeal filed by the fifth respondent school, which was
confirmed in the said Second Appeal filed by the department.
The Government also sanctioned arrears of salary payable to
the petitioner. The fall in strength of the students took place in
the year 2003-2004, which cannot be a ground to reject the
approval of appointment of the petitioner from 01.04.1998.
7. The issue involved in this Writ Petition was already
considered by a Division Bench of this Court in W.A.No.1263
of 2001, dated 22.01.2004. In the said Judgment, it is held that
if a person is appointed in a sanctioned post, the approval of
appointment cannot be rejected and if there is fall in strength
and the post become surplus, after granting approval of the
post, the said teacher along with post could be
transferred/deployed to a needy school. The said Judgment of
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W.A.No.2907 of 2021
the Division Bench was followed in W.P.(MD).No.11353 of
2008 dated 11.09.2009. As against the said order dated
11.09.2009, the department preferred W.A.(MD).No.703 of
2009. A Division Bench of this Court, by Judgment dated
01.02.2011, dismissed the said Writ Appeal."
In this regard, it may be relevant to refer to Section 26 of the Tamil
Nadu Recognised School Regulation Act, which reads as under:
"26. Absorption of Teachers or other persons on
retrenchment - Where any retrenchment of any Teacher or
other person employed in any private school is rendered
necessary consequent on any order of the Government relating
to education or course of instruction or to any other matter,
[or consequent on the reduction in strength of the pupils
studying in any such private school] it shall be competent for
the Government or the School Committee of any private school
to appoint such Teacher or other person in any school or
institution maintained by the Government or in such private
school, as the case may be."
It appears to us that once the appointment is made to a sanctioned
post, and there is a reduction in the student's strength in a private school,
the course that appears to be open is not to refuse approval but to appoint
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W.A.No.2907 of 2021
such teacher or other person in any School or Institution maintained by the
Government or such private school, as the case may be.
The reliance on the directions of this Court in W.A.(MD).No.76, 225,
341 of 2019 and others, appears to be wholly misconceived. This Court was
pleased to issue a set of guidelines, which reads as under:
"6. While protecting the interest of aided institutions
viz., both non-minority and minority, in order to protect the
interest of the State Exchequer and Public Exchequer, this
Court would like to issue the following directions:
(i) Since there is a likelihood of boosting the students
strength of the Aided Schools for the purpose of getting more
teachers, the Government is directed to implement the bio-
metric attendance of the students studying in the Aided schools
as well as the teachers employed in Aided Schools;
(ii) There shall not be any fresh appointment from today
in Private Aided Schools, till surplus teachers in other schools
coming under the same Management are exhausted;
(iii) The Government shall not approve any appointment
made by the Private Aided Schools, till the surplus teachers in
the schools coming under the same Management are
exhausted;
(iv) Insofar as the matters in which the issues have been
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W.A.No.2907 of 2021
decided finally either by the learned Single Judge or the
Division Bench, the appellants are not at liberty to reopen the
issue;
(v) There is no prohibition for approval of teachers,
where concerned teachers or management obtained orders
from this Court which reached finality for grant of approval;
(vi) In case, an appeal or review has been preferred as
on date, it is open to the appellants to contest the cases on
merits;
(vii) Wherever, there is no dispute with regard to
existence of surplus teachers, it is open to the appellants to
deploy those teachers, wherever, it is required viz., in other
aided schools.
(viii) In cases, where the minority school is a Single
School and there is no question of getting surplus teachers
from other schools in the same Management, it is open to the
school authorities to approach the Educational Authority well
in advance, so that, the Educational Authority will be able to
deploy the eligible teachers. Such deployment of eligible
teachers from any other school should satisfy the eligibility
criteria as prescribed by the Tamil Nadu Recognised Private
Schools (Regulation) Act, 1973."
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W.A.No.2907 of 2021
A reading of the above guidelines would indicate that there is no
departure from the earlier decisions in W.A.No.1263 of 2001 nor has Rule
26 been examined muchless being explained as enabling refusal of approval
in the event of reduction in the students strength. To the contrary, it appears
to suggest that the guidelines were meant to remedy the mischief of
boosting the students strength of Aided Schools for the purpose of getting
more teachers and consequentially enhanced aid.
It was in that context, a slew of guidelines were issued and
importantly, a reading of the above set of guidelines issued by this Court
does not appear to suggest that it provides for refusal to approve an
appointment made to a sanctioned post. To the contrary, Clause 2 and 3 of
the aforesaid guidelines appears to indicate that there was a restriction on
fresh appointments till surplus teachers in other schools coming under the
same Management are exhausted. It further records that there is no dispute
that surplus teachers can be deployed in other aided schools, there is no
suggestion even remotely about refusal of approval of a sanctioned post.
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W.A.No.2907 of 2021
6. In view of the same, we concur with the reasoning of the learned
Single Judge and we see no reason to interfere with the order of the learned
Single Judge and the writ appeal stands dismissed. No costs. Consequently,
the connected miscellaneous petitions are closed.
(S.V.N., J.) (M.S.Q., J.)
29.04.2022
Speaking order/Non-speaking order
Index: Yes/No
mka
To:
1.The Secretary to Government,
Higher Education Department,
Fort. St.George, Chennai-9.
2.The Director of Collegiate Education,
DPI Campus, College Road, Chennai-6.
3.The Registrar,
Tamil Nadu Teachers Education University,
Lady Willington College Campus,
Chennai.
4.The Secretary,
Meston College of Education,
West Cott Road, Royapettah, Chennai-14.
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W.A.No.2907 of 2021
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
mka
PRE-DELIVERY ORDER IN
W.A. No.2907 of 2021
and
C.M.P. No.19643 of 2021
29.04.2022
https://www.mhc.tn.gov.in/judis
