Madras High Court
The Secretary vs The Director Of Elementary ... on 1 October, 2021
W.P.(MD).No.20770 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.20770 of 2016
and
W.M.P(MD)No.14842 of 2016
The Secretary,
Thiyagarajar Colony Primary School
Pasumalai-625 004
Madurai District. .. Petitioner
Vs.
1.The Director of Elementary Education,
College Road, Chennai-600 006.
2.The District Elementary Educational Officer,
Madurai, Madurai District.
3.The Assistant Elementary Educational Officer,
Thirunagar, Madurai District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
for the issuance of Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings issued by the 1st respondent
Director of Elementary Education in Na.Ka.No.8785/G3/2016 dated
11.08.2016 and the staff fixation settled by the District Elementary
Educational Officer for the academic years 2014-2015 and 2015-2016
1/18
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W.P.(MD).No.20770 of 2016
dated 30.01.2015 and 19.01.2016 respectively, quash the same in so far
as it renders one post of Secondary Grade Teacher as surplus as against
the minimum requirement of 5 teachers and denies approval to the
appointment of D.Tamilarasi as Secondary Grade Teacher w.e.f
31.03.2010 and further direct the 2nd respondent District Elementary
Educational Officer to approve forthwith the appointment of
Tmt.D.Tamilarasi as Secondary Grade Teacher w.e.f 31.03.2010 and
disburse the grant-in-aid towards her salary and allowances.
For Petitioner : Mr.Issac Mohanlal, Senior Counsel
for Mr.T.Cibichakraborthy
For Respondents : Mr.M.Lingadurai
Government Advocate
ORDER
This Writ Petition is filed for issuance of a writ of Certiorarified
Mandamus to quash the impugned order of the first respondent dated
11.08.2016 and the staff fixation settled by the District Elementary
Educational Officer for the academic years 2014-2015 and 2015-2016
dated 30.01.2015 and 19.01.2016 respectively, and to direct the second
respondent District Elementary Educational Officer to approve forthwith
the appointment of Tmt. D. Tamilarasi as Secondary Grade Teacher
w.e.f. 31.03.2010 and disburse the grant-in-aid towards her salary and
allowance.
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2. Brief facts which are necessary for the disposal of the Writ
Petition are as follows:
The petitioner is a recognized and aided educational institution,
established and administered by M/s.Thiagarajar Mills Private Limited, a
company incorporated under the Companies Act.
3. It is stated that the school was established in the year 1959 and
the school offers education from standard I to V. The petitioner school
was sanctioned with one Headmistress and five Secondary Grade
Teachers for the academic year 2009-2010. It is admitted that one post
of Secondary Grade Teacher in the school fell vacant on 01.11.2005 due
to the promotion of one Secondary Grade Teacher as Headmistress in the
same school on 31.10.2005. In order to fill up the said vacant post of
Secondary Grade Teacher, the petitioner school submitted a proposal for
grant of permission to fill up the vacancy. It is also admitted that the
second respondent granted permission to fill up the vacancy by order
dated 09.02.2010. It is stated that the petitioner school invited
applications to fill up the post by paper publication and thereafter
following due selection process appointed a teacher by name
D. Tamilarasi as Secondary Grade Teacher with effect from 31.03.2010.
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It is submitted that the said teacher joined duty on the same day. By
proceedings dated 20.01.2010, the second respondent fixed the eligible
sanctioned staff strength of the school as one Headmaster plus five
Secondary Grade Teachers. Therefore, it is admitted that Tmt. D.
Tamilarasi was appointed against regular vacancy.
4. It is submitted by the learned Senior Counsel appearing for the
petitioner that the proposal for approval of appointment was submitted
after certificate verification and other formalities and that therefore there
was some delay in submitting proposal for the approval of appointment.
It is submitted that the proposal was received by the second respondent
on 21.06.2010.
5. It is also stated that at the time of staff fixation for the next
academic year 2010-2011, the second respondent rendered one post of
Secondary Grade Teacher as surplus after taking into account the
appointment of Tmt.D. Tamilarasi. The petitioner school submitted a
representation dated 28.03.2011 to the director to refix the staff strength
stating that the school is eligible for six teachers and to approve the
appointment of Tmt. D.Tamilarasi. It is also stated that the Headmistress
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of the school retired on 30.09.2012 and thereafter no further appointment
was made in the school. Even though there was no surplus after
30.09.2012, it is stated that the application for approval of appointment
of Tmt. D. Tamilarasi was not considered and no salary was paid.
6. It appears that the respondent did not process the application for
approval on the ground that the representation submitted by the petitioner
school with regard to surrendering of one surplus post was pending
consideration.
7. The teacher, Tmt. D. Tamilarasi, who was appointed by the
petitioner school filed a Writ Petition in W.P.No.269 of 2015 for
issuance of a Writ of Mandamus to direct the respondent to regularise her
post of Secondary Grade Teacher from the date of her appointment, i.e.,
31.03.2010 in the petitioner's school and sanction monetary benefits.
The writ petition was disposed of in the following lines:
“ 5. Taking note of the submissions of both
sides, as the students strength has come down, a
post of teacher has been declared as surplus and
surrendered to the Government and that the
school has filed an appeal before the first
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W.P.(MD).No.20770 of 2016
respondent/appellate authority. Since the appeal
is pending, the first respondent is directed to pass
appropriate orders on merits and in accordance
with law within a period of two months from the
date of receipt of a copy of this order.”
8. Thereafter, the application submitted by the petitioner school
was considered and by the impugned order dated 04.08.2016, the
petitioner's application for approval was rejected only on the ground that
as per G.O.(Ms).No.231, School Education (C2) Department, dated
11.08.2010, the petitioner school cannot appoint any teacher beyond the
sanctioned strength. It is stated that the sanctioned strength for the
school was only one plus four ( One Headmistress plus four Secondary
Grade Teachers) and that the appointment in respect of a surplus post
cannot be approved. Challenging the order refusing to approve the
appointment to the post of Secondary Grade Teacher that was made on
31.03.2010, the above Writ Petition is filed.
9. Learned Senior Counsel appearing for the petitioner after
narrating the facts, submitted that the petitioner school appointed the
petitioner in the sanctioned post for the academic year 2009-2010 by
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order dated 31.03.2010. The vacancy arose in the said post by the
retirement of one teacher in 2005. It is stated by the learned Senior
Counsel that though permission to appoint a teacher in the vacancy was
sought immediately after the vacancy arose, permission was granted only
on 09.02.2010. Immediately thereafter the appointment was made on
31.03.2010 and the proposal was submitted after following certain
formalities in June 2010. Since the post was sanctioned and the
appointment was made against the sanctioned post after getting
permission to fill up the post by order dated 09.02.2010, learned Senior
Counsel for the petitioner submitted that appointment of teacher by order
dated 31.03.2010 is perfectly valid and in order.
10. The learned Senior Counsel further submitted that the refusal
to grant approval on the ground that the students strength fell in the next
academic year is illegal and opposed to several precedents of this Court
on similar circumstances. In other words it is submitted that the proposal
for approval for appointment made during the academic year 2009-2010
cannot be rejected on the basis of students strength which was noted for
the subsequent academic year. Referring to the staff fixation order for
2010-2011 the learned Senior Counsel pointed out that the appointment
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of Tmt.D.Tamilarasi was also taken note of while fixing the staff strength
when one post was rendered surplus during the next academic year.
11. The learned Senior Counsel further submitted that Tmt.D.
Tamilarasi was appointed in the sanctioned post. It is also submitted by
the learned Senior Counsel that on 30.09.2012, the Headmistress of the
School retired and therefore there was no surplus teacher in the school
from the academic year 2012-2013.
12. It is submitted that as per G.O.(Ms)No.525 (School Education)
dated 29.12.1997, which was in force in the relevant academic year
2010-2011 the petitioner school was entitled for one Headmistress and
five Secondary Grade Teachers. It is stated that as per G.O.525 dated
29.12.1997 the Education department should take each class or section as
single unit and fix the staff strength by allowing one teacher for each
class or section irrespective of the strength of students. Right of
Children to Free and Compulsory Education Act, 2009 came into effect
on 01.04.2010. The appointment was made even before the Act came
into force. It is admitted that by virtue of Section 21 (1) of the Right of
Children to Free and Compulsory Education Act, 2009 appropriate
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Government having legal authority should ensure deployment of teachers
as per pupil teacher ratio specified in the Schedule to be maintained in
school because it is the statutory obligation of the State Government.
Hence G.O.(Ms).No.231 dated 11.08.2010 was introduced wherein the
following directions were issued.
“1. The Director of School Education and
the Director of Elementary Education are
directed to undertake the initial process of
rationalizing the deployment of existing teachers
as per the Pupil Teacher Ratio specified in the
Schedule to the Act.
2. The Director of School Education and
the Director of Elementary Education are also
directed to do a complete survey of the students
enrolled and teachers working in elementary
sections as on 1.09.2010 based on the pupil
teacher ration specified in the Act.
3. The Director of School Education and
the Director of Elementary Education are
requested to initiate steps thereafter to rationalize
the deployment of existing teachers to address the
problem of imbalances in teacher placements.
Rationalizing the deployment of teachers should
be done in respect of both the Government
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controlled and aided schools.”
It is only after the issuance of G.O.(Ms).231 dated 11.08.2010, the
petitioner school was found to have a surplus teacher.
13. The learned Senior Counsel appearing for the petitioner relied
upon several precedents to support his first argument that the approval of
appointment which was against the sanctioned post cannot be rejected on
the ground that there was a fall in strength of students in the subsequent
academic year.
14. A learned Single Judge of this Court in the case of
“Correspondent, Nehru Middle School, Attangudi, Kallal Union,
Sivagangai District vs Director of Elementary Education and two
others reported in 2013 Writ L.R page 354” has held as follows:
“ 13. Admittedly, the petitioner's School
was sanctioned with six teachers posts, out of
which four are Secondary Grade Teachers at the
relevant point of time. When an appointment was
made within the sanctioned strength, which also
was made in pursuant to the permission granted
by the 2nd respondent, the same cannot be held as
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an invalid appointment on the ground that the
staff fixation done subsequently for the academic
year 2008-2009 declared two Secondary Grade
posts as surplus. In effect, the approval is rejected
taking note of the fall in the student strength in the
subsequent academic year. Even the counter
affidavit filed by the 2nd respondent also indicates
that the rejection was made only on the ground
that the management appointed the said person
without analysing as to whether sufficient strength
will be continued in the next academic year.
14. In my considered view, the contention of
the second respondent is totally unjustifiable on
the simply reason that when the petitioner's
School has appointed the said teacher within the
sanctioned strength that too after getting
permission from the second respondent, the
approval of such appointment cannot be denied on
the ground that there was a fall in strength in the
subsequent years.
15. At this juncture, the unreported
judgment of the Hon'ble Division Bench made in
W.A.No.1263 of 2001, dated 22.01.2004 is
relevant to be quoted, wherein, it has been held as
follows:
“The fall or reduction in the students
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strength for the subsequent year/years cannot be a
ground to deny the right of the appellant to
appoint a teacher as against the sanctioned
strength for the previous years. What has been
done in the case, by the impugned order, is exactly
the reliance placed on the subsequent re-fixation
of the sanctioned strength of teachers for the
academic year 2000-2001 which in our
considered view, is impermissible in law, when the
Government being the funding authority, is
entitled to consider the average attendance of
students before sanctioning the teachers, equally
the management is also entitled to appoint the
teachers as against the sanctioned strength based
on the average attendance of students taken
during August, 1999.”
15. Following the Division Bench judgment which was followed in
the above judgment and another judgment of Division Bench of this
Court in W.A.No.703 of 2009, a learned Single Judge of this Court had
occasioned to deal with the same issue in the case of S. Rasheetha Banu
vs State of Tamil Nadu, represented by its Secretary to Government,
Chennai, reported in (2012) 4 MLJ 198, and has held as follows:
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“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 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 1.2.2011, dismissed the
said Writ Appeal.”
16. The learned Senior Counsel again referred to an unreported
Division Bench judgment of this Court dated 31.07.2013 in W.A.No.652
of 2013, in the case of The State of Tamil Nadu and three others vs
Correspondent St. Joseph's Malankara Shyrian Catholic Higher
Secondary School, whererin the earlier view of Division Bench of this
Court in W.A.No.(MD).No.16 of 2011 dated 25.01.2011 was reiterated
and the same preposition was laid.
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17. Few more judgments of this Court taking consistent view in
tune with the previous judgments above referred to are listed below:
a) in a judgment dated 31.07.2014 by the Hon'ble Division
Bench in W.A.(MD) No.844 of 2014 in the case of The Chief
Educational Officer, Tirunelveli, Tirunelveli District.
b) a judgment dated 16.07.2021 in W.P.No.2503 of 2020 in the
case of V.Mahalakshmi vs The Director of Elementary Education.
c) in a judgment dated 07.12.2020 in W.P.(MD).No.20358 of
2020 in the case of Correspondent, VKP Higher Secondary School vs
The State of TamilNadu and three others.
18. The learned Government Advocate appearing for the
respondents relying upon the counter affidavit filed by the second
respondent submitted that the application for approval was submitted
only on 21.06.2010, and therefore the issue was considered rightly with
reference to the strength of students for the academic year 2010-2011.
19. The learned Government Advocate further submitted that as
per G.O.Ms.231 dated 11.08.2010, the petitioner School was eligible
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only to have five teachers. Therefore, when the petitioner school
appointed an additional teacher ie., Tmt.D.Tamilarasi, appointment could
not be approved as it is against G.O.Ms.No.231 School Education
Department dated 11.08.2010.
20. In the counter affidavit also it is stated that appointment of
D.Tamilarasi was held up due to the subsequent developments. Although
she was appointed on 31.03.2010, proposals for approval of her
appointment was received only on 21.06.2010, when one post of
Secondary Grade Teacher was rendered surplus for the academic year
2010-2011. It is reiterated that the appointment of D.Tamilarasi could
not be approved as the strength of pupil was decreased and as per
G.O.Ms. No.231, the post in which D.Tamilarsi was appointed had to be
surrendered, as surplus.
21. The stand taken by the respondent in the counter affidavit is
unacceptable, in view of the precedents cited on behalf of the petitioner.
The status of a person appointed earlier on 31.03.2010, and the rights or
benefits accrued to the teachers or the management cannot be deprived
on the basis of an event that happened much later and the date of
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application of proposal for approval may not have any relevance or
affects the rights of the teacher, who got appointment on 31.03.2010.
The approval of appointment is a procedure to be followed after the
appointment and the approval makes the appointment valid with effect
from the date of appointment. The eligibility of the school to have a
teacher should be tested with reference to the date of appointment. The
submission of the learned Government Advocate and the stand taken by
the respondent cannot be approved by this Court. The impugned order of
the first respondent in Na.Ka.No.8785/G3/2016, dated 11.08.2016,
relates to the denial of approval of appointment is quashed. Accordingly,
this Writ Petition is allowed in part. Learned Senior Counsel appearing
for the petitioner did not make any submission regarding the staff
fixation for 2014-15 and 2015-16 by order dated 30.01.2015 and
19.01.2016 respectively. Hence no relief is granted. It is open to the
respondents to pass any appropriate order regarding surrender or
deployment of surplus teachers, as may be permissible in law. The
second respondent is directed to accord approval to the appointment of
G.Tamilarasi, in the post of Secondary Grade Teacher with effect from
the date of appointment ie., 31.03.2010 and disburse the grant-in-aid to
the teacher concerned and other monetary benefits if any, within a period
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W.P.(MD).No.20770 of 2016
of twelve weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
01.10.2021
Index:Yes/No
Internet:Yes/No
MNR/Ns
To
1.The Director of Elementary Education,
College Road, Chennai-600 006.
2.The District Elementary Educational Officer,
Madurai, Madurai District.
3.The Assistant Elementary Educational Officer,
Thirunagar, Madurai District.
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W.P.(MD).No.20770 of 2016
S.S.SUNDAR,J.
mnr/Ns
W.P.(MD)No.20770 of 2016
01.10.2021
https://www.mhc.tn.gov.in/judis/
