Madras High Court
Belga vs The Secretary To The Government on 26 July, 2021
W.P(MD)No.8138 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.8138 of 2018
Belga ... Petitioner
vs.
1.The Secretary to the Government,
Department of School Education,
St. George Fort ,
Chennai.
2.The Director of School Education,
DPI Compound,
College Road, Chennai.
3.The District Elementary Educational Officer,
Tirunelveli,
Tirunelveli District.
4.The Additional Assistant Elementary
Educational Officer,
Kalakkad, Tirunelveli District.
5.The Correspondent,
K.A.M.P. Meeraniya Middle School,
Kalakkad, Tirunelveli District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings issued by the 4th respondent
in O.Mu.No.608/m2/2017, dated 04.07.2017 and quash the same and
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W.P(MD)No.8138 of 2018
consequently, direct the respondents to approve the appointment of the
petitioner as vocational instructor (sewing) with all other consequential
service and monetary benefits with effect from 09.06.2017 within
stipulated time.
For Petitioner : Mr.S.Chellapandian
For Respondents : Mr.P.Subbaraj,
Government Advocate for R1 to R4
ORDER
The petitioner has filed this Writ Petition challenging the order of
the fourth respondent in O.Mu.No.608/m2/2017, dated 04.07.2017 and
for a consequential direction to the respondents to approve the
appointment of the petitioner as Vocational Instructor (Sewing) with all
other consequential service and monetary benefits with effect from
09.06.2017.
2. According to the petitioner, the fifth respondent school is a
Minority Aided Recognized school. The school is offering education
from Standards I to XII. The medium of instruction is Tamil. In the fifth
respondent school, a post of Vocational Instructor has become vacant on
01.06.2017, on account of retirement of one Vellammal, who worked in
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W.P(MD)No.8138 of 2018
the said post from the year 1981. The petitioner applied for the said post
and was selected and appointed as Vocational Instructor (Sewing) in the
fifth respondent school on 09.06.2017. The total strength of the fifth
respondent school is 1225 and the strength of the students from classes
VI to VIII is 470. All the students studying in the fifth respondent school
hails from poor and downtrodden families. Apart from education, they
are in essential need of learning graft work, such as weaving, sewing,
carpentry etc. Since the Parent-Teachers Association of the School
requested the Management to fill up the Vocational Instructor post, which
fell vacant on 31.05.2017, the fifth respondent Management appointed
the petitioner in the sanctioned post. The petitioner is possessing
requisite qualification as per Rule 8 Annexure III of Tamil Nadu Payment
of Grant Rules (Minority Schools). The fifth respondent school
forwarded the proposal to the third respondent through the fourth
respondent for approval of appointment of the petitioner. The fifth
respondent school was established in the year 1929 and later, recognized
under Tamil Nadu Private Schools Regulation Act. The school was
upgraded as Middle school in the year 1981. At the time of upgradation,
the third respondent sanctioned additional secondary grade post along
with part time Vocational Instructor. The fifth respondent school
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W.P(MD)No.8138 of 2018
requested the official respondents to provide and sanction the Vocational
Instructor by way of written request. On considering the students
strength, the third respondent provided a full time Vocational Instructor
by way of deployment from Maruthanikinaru Panchayat Union Primary
School, which became surplus in the year 1995. The post was deployed
without Teacher by the third respondent based on the requisition and on
considering the student strength of the fifth respondent school. In the
sanctioned post, the petitioner was appointed and the fifth respondent
school sent a proposal for approval. The fourth respondent rejected the
proposal by the impugned order dated 04.07.2017. Challenging the
same, the petitioner has come out with the present Writ Petition.
3. The learned counsel appearing for the petitioner submitted that
the impugned order is illegal and arbitrary. The post, once sanctioned by
way of deployment, shall not be termed as non-existence
on the superannuation of the Teacher working in the deployed post.
The post sanctioned by the competent authority, considering the
strength of the students, shall not be surrendered by the
Management, unless the students strength of the school was
declined and went beyond the students ratio embodied in the
relevant rules and prayed for allowing the Writ Petition.
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W.P(MD)No.8138 of 2018
4. The third respondent filed counter affidavit. The learned
Government Advocate appearing for the respondents 1 to 4 submitted
that the third respondent by the proceedings dated 18.12.1996, converted
a Secondary Grade Teacher post in Panchayat Union Primary School
Marthanginaru, Tirunelveli District, as Pre Vocational Instructor
(Sewing) post and transferred to the fifth respondent school with specific
condition that the post now transferred lapsed automatically, when the
above Teacher vacates the post on retirement or resignation. The
incumbent retired, on attaining the age of superannuation on 31.05.2017.
The fifth respondent or the petitioner did not challenge the above
proceedings dated 18.12.1996. While so, the fifth respondent without
prior permission, appointed the petitioner and sought approval of the
appointment of the petitioner. The appointment of the petitioner on
09.06.2017, made by the fifth respondent without having sanctioned
post, at his own risk, by overlooking the order passed by the third
respondent dated 18.12.1996, and hence, the petitioner is not entitled for
approval of appointment. Therefore, the impugned order is valid and
prayed for dismissal of this Writ Petition.
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W.P(MD)No.8138 of 2018
5. Heard the learned counsel appearing for the petitioner, the
learned Government Advocate appearing for the respondents 1 to 4 and
perused the materials available on record.
6. From the materials available on record, it is seen that the
proposal sent by the fifth respondent was returned by the fourth
respondent on the ground that, on retirement of incumbent Sewing
Teacher, the post automatically lapsed and appointment of the petitioner
cannot be approved. The reason given in the impugned order is
erroneous, as it has been held in number of cases that retirement,
resignation and death of a Vocational Instructor, the post will not lapse
and the Department will not resume the said post. This issue was
considered by the Division Bench of this Court in W.A.Nos.887 and 888
of 2018 [The Government of Tamil Nadu Vs. P. Vivekananadan], dated
02.01.2019. The relevant portion of the said judgment reads as follows:
'2. The writ petitioners were appointed as Vocational
Instructors in Linguistic Minority school. Mr.P.Vivekanandan,
was appointed on 11.08.2004 and Mr.C.Jose Waltine, was
appointed on 02.06.2003 respectively, in the vacancies that
arose due to retirement of the earlier appointees. The school
approached the State to approve their appointment, as
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W.P(MD)No.8138 of 2018
Vocational Instructors.
3. The approval sought for was rejected on the ground
that the vacancies of Vocational Instructors which arise due to
resignation or death, would be resumed by the Government
and they cannot be appointed, to these posts. Vide Proceedings
of the Tamilnadu Joint Director of School Education,
Tamilnadu Vocational Education, Chennai, in Na.Ka.No.
106533/V1/E3/2009, dated 22.12.2009, has rejected the
application for approval of the writ petitioners, as under:-
“Thiru.P.Vivekananthan and Josewaltin were appointed as part
time vocational Instructors by the school authorities of
Arunachalam Higher Secondary School, Thiruvattar
Kanyakumari District. They filed Writ Petition Nos.21508/09 and
21509/09 before the Madras High Court praying to issue
directions to the second respondent Joint Director (Vocational
Education) to consider their application dated 23.07.2009 and to
approve their appointment. The writ petitions were allowed and
in the order dated 22.10.2009, referred above as reference No.1
the Hon'ble High Court directed the second respondent, the Joint
Director, (vocational Education) to consider the application of the
writ petitioners and pass appropriate orders regarding their
appointment.
The application of the petitioners dated 23.07.2009 was
considered as per the directions of the Madras High Court and the
notes of the Nagercoil Chief Educational Officer.
Thiru P. Vivekanthan and Thiru Josewaltin were appointed in the
retired place of vocational instructors in the Arunachalam Higher
Secondary School and vocational Education at Thiruvattar,
Kanyakumari District. The Chief Educational Officer, Nagercoil
in his Letter OMU No:3785/A2/05 dated 15.10.2005
categorically stated that the said appointment shall not be
approved. The Chief Educational Officer, Nagercoil has also
stated that for the said two appointments, prior permission was
not obtained from the Director of School Education.
The vocational Instructor is to be appointed from the part time
vocational instructors considering the state wide seniority and
after obtaining prior permission from the Government.
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W.P(MD)No.8138 of 2018
The said posts not allotted to the school. If the instructor retires,
resigns, dies or left for another job, the said post is to be
surrendered to the Department. On any account the school
authorities have no right to appoint a person in such posts and it
was duly informed by the office as per Naka No:
115506/W26/2002 dated 28.08.2003.
Hence for the reasons stated above, Thiru P.Vivekanathan and
Jose Waltin appointed by the said High Secondary School as part
time vocational instructors cannot be approved and the Chief
Educational Officer, Nagercoil in his letter dated 15.10.2005 has
categorically stated in. So also as per the Proceedings Na.Ka.No:
115506/W26/2002 dated 28.08.2003 the application to approve
the posts of the vocational Teachers cannot be accepted and this is
for your information."
4. The said order is challenged in W.P.Nos.18516 and
18517 of 2010.
5. The learned Single Judge by the impugned order
dated 24.10.2017, in W.P.Nos.18516 and 18517 of 2010,
allowed the writ petitions.
6. Being aggrieved by the same, instant writ appeals
have been filed by the appellants.
7. The learned Single Judge relied on the Judgment of
the Division Bench of this Court in W.A.(MD).No.652 of 2013
in State of Tamil Nadu and others vs. The Correspondent,
St.Joseph's Malankara Shyrian Catholic Higher Secondary
School, which held that nowhere it has been stated that the
sanction posts, which have been declared surplus, on account
of death or resignation of existing teachers, will be resumed by
the Government.
8. Even though the learned Single Judge has quoted a
relevant portion of the said judgment, at the risk of repetition,
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W.P(MD)No.8138 of 2018
few paragraphs are once again been quoted, as hereunder:-
"4.The issue as to whether a person appointed in a sanctioned
post by a minority school can be denied approval of
appointment was considered by a Division Bench of this
Court in W.A.(MD) No.16 of 2011, dated 25.1.2011, wherein
in paragraph Nos.(3) to (5), it is held thus:-
3) Learned counsel appearing for the first
respondent submits that one of the special teacher post
(Sewing) became vacant and in the said vacancy, the first
respondent was appointed from 15.7.2004 and she is serving
in the second respondent school all these years. Learned
counsel for the first respondent also submitted that the said
sanctioned post is in existence and the appellants neither
declared the said post as surplus nor resumed the post till
date from the second respondent school. To prove the
availability of the post, the staff fixation orders of the school
is filed. The reason stated by the District Elementary
Educational Officer for rejecting the request for approval
was that there is reduction of student strength. The very
same issue was considered by the Division Bench in
W.A.No.1263 of 2001, by order dated 22.1.2004, wherein
this Court has held that if a person is appointed in a
sanctioned post, the approval cannot be rejected and if there
is a fall in strength and the post become surplus after
granting approval to the post, the said teacher along with the
post could be transferred/deployed to a needy school. The
same is the view taken by the learned Single Judge in this
case by relying upon the various other judgments.
(4) The learned counsel for the first respondent also
submitted that an identical case was allowed by the learned
Single Judge in W.P.No.7218 of 2008 by order dated
4.8.2009 and without filing an appeal against the said order,
the said order was implemented by the very same second
appellant in this appeal by order dated 18.9.2009.
(5) The said fact is also not disputed by the learned
Special Government Pleader appearing for the appellants.”
5. Applying the said judgment to the facts of the
present case, there is no error in the order passed by the
learned Single Judge."
9. It has been brought to our notice that Special Leave
Petition has been filed against the said judgment, being
Special Leave to Appeal (C)No.-------/2014 in CC.No(s).
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W.P(MD)No.8138 of 2018
13000/2014, and that the same has been dismissed by the
Hon'ble Supreme Court, by the order dated 25.08.2014.
10. It is also brought to our notice that the School
Education Department, for the years 2003 - 04 and 2008 - 09,
has sanctioned two posts of Vocational Instructors in
Accountancy and Auditing, been held by the writ petitioners,
as the sanctioned strength for the Arunachalam Higher
Secondary School, Thiruvettar, Kanyakumari District.
11. In view of the fact that there are two sanctioned
posts and that the issue is settled by the judgment of the
Hon'ble Division Bench of this Court, as quoted supra, there is
no merit in the instant writ appeals and the same stands
dismissed. No Costs. Consequently, the connected civil
miscellaneous petitions are closed.”
The ratio in the said judgment is squarely applicable to the facts of the
present case.
7. For the above reasons, the impugned order dated 04.07.2017
passed by the fourth respondent is set aside. The fifth respondent school
is permitted to re-submit the proposal within a period of four weeks from
the date of receipt of a copy of this order. On receipt of the proposal, the
respondents 1 to 4 are directed to approve the appointment of the
petitioner, taking into account the judgment of this Court dated
02.01.2019, made in W.A.Nos.887 and 888 of 2018 [The Government of
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W.P(MD)No.8138 of 2018
Tamil Nadu Vs. P. Vivekananadan], within a period of four weeks
thereafter.
8. With the above direction, this Writ Petition is allowed. No
costs.
26.07.2021
Index : Yes / No
Internet : Yes / No
vsm
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 to the Government,
Department of School Education,
St. George Fort ,
Chennai.
2.The Director of School Education,
DPI Compound,
College Road, Chennai.
3.The District Elementary Educational Officer,
Tirunelveli,
Tirunelveli District.
4.The Additional Assistant Elementary Educational Officer,
Kalakkad, Tirunelveli District.
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W.P(MD)No.8138 of 2018
V.M.VELUMANI,J.
vsm
W.P(MD)No.8138 of 2018
26.07.2021
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