Madras High Court
The District Educational Officer vs Tmt.M.Tamilselvam on 10 June, 2021
W.A.(MD).No.977 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.06.2021
CORAM
The Hon'ble Mr.JUSTICE T.S.SIVAGNANAM
AND
The Hon'ble Mrs.JUSTICE S.ANANTHI
W.A.(MD).No.977 of 2020
and
C.M.P(MD).Nos.3486 and 5305 of 2020
1.The District Educational Officer,
Tirunelveli Educational District,
Tirunelveli-627 001.
2.The Chief Educational Officer,
Tirunelveli-627 009. .. Appellants
Vs.
1.Tmt.M.Tamilselvam,
2.The Secretary,
M.D.T.Hindu College Higher Secondary School,
Tirunelveli-627 001. .. Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent, to set
aside the order dated 30.01.2020 passed in W.P.(MD).No.19342 of 2013.
For Appellants : Mr.R.Baskaran
For R1 : Mr.G.Thalaimutharasu for R1
For R2 :Mr.K.Karthikeyan for
Mr.Sengu Vijay
1/9
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W.A.(MD).No.977 of 2020
JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
This Writ Appeal filed by the Educational Department is directed
against the order dated 30.01.2020 in W.P.No.19342 of 2013.
2.This writ appeal was entertained and an order of interim stay was
granted. The first respondent/teacher had filed a petition for vacating the
interim order, which was listed before us today. With the consent on
either side, the writ appeal is taken up for disposal.
3.The first respondent filed a Writ Petition for issuance of a Writ of
Certiorarified Mandamus, to quash the order dated 10.05.2013 and to
issue an order of approval approving her order of appointment as
Graduate Teacher in Mathematics in the second respondent school with
effect from her date of appointment namely 10.08.2009 and to regularize
her service from the said date and disburse the arrears of pay and
allowances.
4.The second respondent/school is an aided and non-minority
school. The learned Single Bench allowed the writ petition and while
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W.A.(MD).No.977 of 2020
doing so, made an observation that no prior approval is required for
filling up vacancy, which is arisen in a sanctioned post. We have our
reservation on the said aspect because the second respondent school is
aided and non minority school and therefore the approval of the
department is required. It may not be the case, if the school is an aided
and minority institution. However, this issue need not to be decided in
this appeal, because there are other reasons set out by the Department for
rejecting the approval of the appointment, which we can test for its
correctness in this appeal. Therefore, the observations made by the
learned Writ Court with regard to the aspects as to whether prior
approval is required or not for filling up the vacancy arising in the
sanctioned post in an aided and non-monitory institution is vacated and
the said legal issue is left open.
5. Now we move on to consider as to whether the Department was
justified in rejecting the approval of the appointment of the first
respondent vide order dated 10.05.2013. The reason sated is that the
appointment was made on 10.08.2009 during the Academic year
2009-2010 and during the said academic year, there were three surplus
posts and the posts presently held by the first respondent was also
declared as surplus and the teacher along with the post had to be
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W.A.(MD).No.977 of 2020
deployed with another school and in fact, such an order of deployment
was passed on 16.11.2009 by the Chief Educational Officer,
Thirunelveli, deploying the first respondent to S.N.R.Higher Secondary
School, Sri Gomathipuram, Sankarankovil. The other reason stated by
the appellant Department is that during the Academic years 2010-2011
and 2011-2012, there were one post in each of the year which was
declared as surplus. The order impugned in the writ petition dated
10.05.2013, does not state that the second respondent school did not
obtain approval before filling up the vacancy. Therefore, as observed by
us earlier, the question of whether prior approval is required or not, does
not arise for consideration in this appeal. Once having steered clear of
this issue, we will examine the facts as to whether the Department is
justified in refusing the approval of the appointment of the first
respondent. Admittedly, the second appellant namely, the Chief
Educational Officer by proceedings dated 12.11.2008 granted permission
to the second respondent school to fill up the vacancies, which had arisen
in the post of Graduate Teacher in Mathematics and as per the communal
roster, the post is reserved for Schedule Caste candidates. There is no
dispute to the fact that the second respondent school had followed the
proper procedure for appointing the candidates, strictly implemented the
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W.A.(MD).No.977 of 2020
communal roster and when the appointment order was to be issued,
parliamentary election was notified and model code of conduct came into
operation. Therefore, the Secretary of the second respondent school
addressed the Election Commissioner on 12.03.2009 requesting
permission for issuing the order of appointment and filling up the vacant
post in the light of the approval granted by the second appellant dated
12.11.2008.
6.The Election Commission by proceedings dated 27.03.2009
granted permission to issue the order of appointment for six B.T.
Assistants which includes the first respondent. It is thereafter after
following the due procedure and calling for fresh list from the
employment exchange, issuing paper publication, the second respondent
school issued an order of appointment to the first respondent dated
05.08.2009. The first respondent joined duty on 10.08.2009. Thus the
order of appointment was issued during the Academic year 2009-2010.
Therefore, the second respondent Management requested the appellant
Department to modify the approval order dated 12.11.2008 by granting
approval for the academic year 2009-2010 instead of 2008-2009. This
was rejected on the ground that for the academic year 2009-2010, there
were three surplus posts including the post held by the first respondent.
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W.A.(MD).No.977 of 2020
One important fact, which has not been mentioned in the order dated
10.05.2013 is that the order deploying the first respondent on the ground
that of the post has become surplus, which was passed on 16.11.2009
was cancelled by the Chief Educational Officer, Tirunelveli, by
proceedings dated 24.04.2010, permitting the second respondent
Institution to continue the three teachers including the first respondent in
the very same school. In such circumstances, the reasons assigned by the
first appellant for rejecting the approval cannot be sustained.
Furthermore, it is stated in the order dated 10.05.2013 that two posts are
have been declared as surplus during the academic years 2010-2011,
2011-2012. However, that cannot be a reason for refusing an approval,
because the issue was whether the appointment made during the
academic year 2009-2010 could have been approved or not and whether
the prayer made by the management for making a correction in the
approval order is justified or not. Therefore, the first respondent cannot
invent other reasons for rejecting the approval of the appointment of the
appellants made on 05.08.2009 by citing a reason that in the next two
academic years, there were one post surplus for each year. Thus, We are
of the considered view that the order passed by the first appellant dated
10.05.2013 is solely unsustainable and the first appellant has taken a
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W.A.(MD).No.977 of 2020
hyper-technical view which cannot be appreciated, especially, the second
respondent Institution has followed proper procedure and made the order
of appointment.
7.Therefore, the order dated 10.05.2013 impugned in the writ
petition has to be quashed. In the result, the appeal filed by the
department is dismissed and consequently the writ petition filed by the
first respondent is allowed and the order dated 10.05.2013 passed by the
first appellant is quashed for the reasons which we have assigned in this
judgment and not on the reasons which were assigned by the learned
Single Bench. Consequently, We direct the appellants to approve the
appointment of the first respondent with effect from her date of joining
on 10.08.2009 and sanction all benefits accruing on account of such
approval within a period of 3 months from the date of receipt of copy of
this judgment. No Costs. Consequently, the connected miscellaneous
petitions are closed.
(T.S.S.J.,) ( S.A.I.J.,)
10.06.2021
Index:Yes/No
Internet:Yes/No
tta/ssb
https://www.mhc.tn.gov.in/judis/
W.A.(MD).No.977 of 2020
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 District Educational Officer,
Tirunelveli Educational District,
Tirunelveli-627 001.
2.The Chief Educational Officer,
Tirunelveli-627 009.
https://www.mhc.tn.gov.in/judis/
W.A.(MD).No.977 of 2020
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
tta/ssb
W.A.(MD).No.977 of 2020
and
C.M.P(MD).Nos.3486 and 5305 of 2020
10.06.2021
https://www.mhc.tn.gov.in/judis/
