Madras High Court
The Correspondent vs The State Of Tamil Nadu on 25 June, 2021
W.P.(MD)No.7907 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.7907 of 2021
and
W.M.P(MD)No.6035 & 6036 of 2021
The Correspondent
St. John Vianney's Girls
Higher Secondary School,
Palliyadi-629 169,
Kanyakumari District. ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Department of School Education,
Fort St. George, Chennai-600 009.
2.The Director of School Education,
College Road,
Chennai-600 009.
3.The Chief Educational Officer,
Kanyakumari District at Nagercoil,
Kanyakumari District.
4.The District Educational Officer,
Kuzhithurai,
Kanyakumari District. ... Respondents
1/13
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.7907 of 2021
PRAYER: Writ Petition under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order passed by the third
respondent Chief Educational Officer in Mu.Mu.No.8113/E4/2018,
dated 04.02.2021 denying approval to the appointment of S.Ezhil
Shini as BT Assistant (English) quash the same and further direct
the third respondent CEO to approve forthwith the appointment of
S.Ezhil Shini as BT Assistant (English) in the petitioner school
w.e.f., 08.06.2017 with all attendant benefits including arrears of
salary and allowance.
For Petitioner : Mr.K.Ragatheesh Kumar
for M/s.Isaac Chambers
For Respondents : Mr.P.Subbaraj
Government Advocate
ORDER
This writ petition is filed seeking a writ of Certiorarified
Mandamus, to call for the records relating to the impugned order
passed by the third respondent, Chief Educational Officer, in
Mu.Mu.No.8113/E4/2018, dated 04.02.2021, denying approval to
the appointment of S.Ezhil Shini as BT Assistant (English) and
quash the same and further direct the third respondent CEO to
approve the appointment of S.Ezhil Shini as BT Assistant (English)
in the petitioner school w.e.f., 08.06.2017 with all attendant
benefits including arrears of salary and allowance.
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W.P.(MD)No.7907 of 2021
2. The learned counsel appearing for the petitioner submitted
that the petitioner's School is a recognised and aided minority
educational institution, owned and administered by the Society of
the Council of ICM Educational Institutions, Madurai. In the said
School there are 23 Teachers viz., 1 Headmistress, 10 BT
Assistants, 5 Secondary Grade Teachers, 3 Tamil Pandits, 2
Physical Education Teachers, 1 Sewing Teacher and 1 Music
Teacher, working and they are receiving aid from the State
Government. Apart from the above teaching staffs, there are 5
aided non-teaching staffs viz., 1 Junior Assistant, 1 Office Assistant,
1 Record Clerk, 1 Night Watchman and 1 Part time Scavenger,
working in the school. There are 662 students studying in the
School. One post of Secondary Grade Teacher fell vacant on
01.06.2017 due to the retirement of the then incumbent
Tmt.V.Sriya Pushpam on 31.05.2017. As per the policy, as and
when a Secondary Gradey Teacher in the Middle School section fall
vacant, only the candidate with graduate qualification has to be
appointed as BT Assistant in the subject which is in need of the
school. The petitioner's school appointed one Tmt.S.Ezhil Shini as
BT Assistant (English) on 08.06.2017 and she joined duty on
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W.P.(MD)No.7907 of 2021
08.06.2017 and continues to work in the school till date. The
petitioner's school submitted the proposal to the third respondent
on 28.06.2017, requesting to approve the appointment of
Tmt.S.Ezhil Shini and disburse grant-in-aid towards her salary. The
third respondent returned the proposal by the proceedings, dated
10.11.2017, seeking certain details and directed the school to
resubmit the proposal after complying with the defects. The
petitioner's school resubmitted the proposal to the third respondent
after rectifying the defects on 01.03.2018. The third respondent
has not passed any orders. Therefore, the petitioner filed a writ
petition in W.P.(MD)No.15793 of 2018 before this Court for
mandamus, directing the respondents 2 & 3 to approve the
appointment of S.Ezhil Shini as BT Assistant (English) in the
petitioner's school with effect from the date of her appointment
viz., 08.06.2017 with all attendant benefits including the arrears of
salary and allowance and disburse grant-in-aid towards the salary
and other attendant benefits. This Court, by the order dated
19.07.2018, directed the respondents 2 & 3 to consider the
resubmitted proposal of the petitioner, dated 01.03.2018 with
regard to appointment of one S.Ezhil Shini and pass orders with
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W.P.(MD)No.7907 of 2021
regard to approval of the said appointment, within four weeks. In
violation of orders of this Court, dated 19.07.2018, the fourth
respondent refused to approve the appointment of S.Ezhil Shini by
the proceedings, dated 29.08.2018, stating that only after surplus
teachers in Kanyakumari District, is deployed to the needy Schools,
necessary steps will be taken for approving the appointment. The
petitioner issued notice through their counsel on 29.06.2019 to the
respondents 3 & 4 to comply with the order of this Court, dated
19.07.2018. Even after that, the respondents 3 & 4 have not
passed any orders and hence, the petitioner filed Contempt Petition
(MD) No.1125 of 2019. While the said contempt petition was
pending, the third respondent by the impugned order, dated
04.02.2021, rejected the proposal for approval of the appointment
of S.Ezhil Shini. Challenging the said order, the petitioner has
come out with the present writ petition.
3.The learned Government Advocate appearing for the
respondents submitted that at the time of passing the impugned
order, the respondents referred the interim order, dated 09.04.2019
passed by the Division Bench of this Court in W.A(MD)No.76 of
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W.P.(MD)No.7907 of 2021
2019 etc., batch and G.O.(Ms)No.165, School Education (Tho.Ka.
2(1) Department, dated 17.09.2019. Subsequently, in the writ
appeal batch, this Court finally issued certain guidelines with
regard to approval of appointment. In this regard, he relied on the
judgment of the Division Bench of this Court, dated 31.03.2021, in
W.A(MD)Nos.76 of 2019 etc., batch and the relevant portion of the
judgment is extracted hereunder:-
“95 (u) Till such excess teaching staff are
identified under all category of schools as indicated
above, no recruitment shall be made by the State
Government / Education Department for the purpose
of appointment of teachers under various categories
like Secondary grade teacher, Graduate teacher, Post-
Graduate teacher, Language teacher, Physical
education teacher etc.,
(v) Like that insofar as aided minority
institutions are concerned if it is a stand along
institution, their right of appointing a teacher in a
vacancy within the sanctioned strength for the
academic year 2021-22 shall not be affected because
of the identified excess teachers in other schools. At
the same time, even if the school is a minority
institution, however being administered by a joint
management or corporate management, in respect of
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W.P.(MD)No.7907 of 2021
those schools, even though vacancy arose within the
sanctioned strength of such school or schools under
corporate management or joint management, those
vacancies shall not be filled up unless the excess staff
identified in all other schools under the same
corporate or joint management are exhausted fully and
only after exhausting the redeployment process on all
excess teachers identified in the group of schools
under the same corporate management, they shall be
free to make appointment afresh from open market in
the vacancy if any still, within the sanctioned strength”
4. The learned Government Advocate appearing for the
respondents by relying on the above judgment submitted that if the
petitioner's school resubmitted the proposal, the respondents 3 & 4
will pass orders following the guidelines issued by the Division
Bench of this Court, dated 31.03.2021.
5. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate appearing for the respondents
and perused the materials available on record.
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W.P.(MD)No.7907 of 2021
6. The petitioner's School, which is a minority educational
institution, appointed one S.Ezhil Shini as BT Assistant (English) in
the vacancy arose due to the retirement of one Tmt.V.Sriya
Pushpam, Secondary Grade Teacher. The proposal sent by the
petitioner's school for approval of appointment was accepted by the
third respondent. In the writ petition in W.P.(MD)No.15793 of
2018, filed by the petitioner, this Court, by order, dated 19.07.2018
passed the following order:-
“5.Considering the limited scope of the writ
petition, this Court is inclined to pass the following
orders:-
“that the second and third respondents are
directed to consider the said resubmitted proposal
dated 01.03.2018 of the petitioner School, with regard
to the appointment of one S.Ezhil Shini as B.T.Assistant
on 08.06.2017 and pass necessary orders with regard
to the approval of the said appointment, within a period
of four weeks from the date of receipt of a copy of this
order.”
7. The third respondent after the above order of this Court,
by the proceedings, dated 29.08.2018, refused to approve the
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W.P.(MD)No.7907 of 2021
appointment of S.Ezhil Shini stating that only after the surplus
teacher in Kanyakumari District, is deployed to the needy schools,
necessary steps will be taken for approving the appointment.
Subsequently, the third respondent passed the impugned order,
dated 04.02.2021, rejecting the request of the petitioner for
approval on the following grounds:-
“i) there are 311 surplus teachers in Kanyakumari District
including 8 BT Assistants in English post;
ii) in the petitioner's school there are two BT Assistant
(maths) and BT Assistant (Science) were rendered as surplus in the
year 2016-2017;
iii) appointment made without prior permission and without
following the subject roster;
iv) in the interim order passed in W.A(MD)No.76 of 2019 etc.,
batch dated 09.04.2019, a Division Bench of this Court held that
only after deployment of excess staffs, new appointments shall be
made. Approving the proposal submitted by the petitioner will be a
additional financial burden.
The above said reasons given by the third respondent are
erroneous.
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W.P.(MD)No.7907 of 2021
8. The petitioner's School, which is a minority institution, can
fill up the sanctioned vacancy without obtaining prior permission.
Subsequent to the interim order, dated 09.04.2019 in W.A(MD)No.
76 of 2019 etc., batch referred in the impugned order by the third
respondent and G.O.Ms.No.165, School Education Department,
dated 17.09.2019, another Division Bench of this Court considering
the said issue in the very same Writ Appeal, has suspended the
operation of G.O.(Ms)No.165, School Education Department, dated
17.09.2019 passed in pursuant to the interim order dated
09.04.2019 in W.A(MD)No.76 of 2019 etc., batch, by order, dated
20.09.2019, until further orders. Subsequently, another Division
Bench of this Court taken up W.A(MD)No.76 of 2019 etc., batch for
final hearing and considered the issue in detail, vide judgment
dated 31.03.2021, in Para 95(o) declared the said Government
Order as inoperative. The relevant portion of the said judgment
reads as follow:-
“95. (o) In view of the aforesaid, the G.O.Ms.No.165, School Education
[Tho.Ka.2(1)] Department, dated 17.09.2019 is hereby declared to be inoperative.”
9. In view of the subsequent interim order, dated 20.09.2019
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W.P.(MD)No.7907 of 2021
and judgment dated 31.03.2021 made in W.A(MD)No.76 of 2019
etc., batch, the reliance placed by the third respondent in the
impugned order on the interim order of the Division Bench of this
Court, dated 09.04.2019 and G.O.(Ms)No.165, School Education
Department, dated 17.09.2019, is erroneous. Hence, the
impugned order passed by the third respondent, dated 04.02.2021,
is liable to be set aside and is hereby set aside. The third
respondent is directed to approve the appointment of S.Ezhil Shini
as BT Assistant (English) without insisting deployment of all excess
BT Assistant (English) in Kanyakumari District. The third
respondent is directed to approve the appointment of S.Ezhil Shine,
and pass orders within a period of two weeks from the date of
receipt of a copy of this order and sanction and disburse all the
monetary benefits to S.Ezhil Shini.
10.With the above directions, the writ petition is allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
Index:Yes/No
Internet:Yes/No 25.06.2021
am
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W.P.(MD)No.7907 of 2021
To
1.The Secretary,
Department of School Education,
Fort St. George, Chennai-600 009.
2.The Director of School Education,
College Road,
Chennai-600 009.
3.The Chief Educational Officer,
Kanyakumari District at Nagercoil,
Kanyakumari District.
4.The District Educational Officer,
Kuzhithurai,
Kanyakumari District.
V.M.VELUMANI, J.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.7907 of 2021
am
W.P.(MD)No.7907 of 2021
25.06.2021
https://www.mhc.tn.gov.in/judis/
