Madras High Court
The Director Of School Education vs Mcn Higher Secondary School on 3 September, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.53 of 2021
and CMP.No.524 of 2021
1. The Director of School Education
DPI Campus,
College Road,
Chennai 600 006.
2. The Chief Educational Officer,
Chennai District,
Egmore, Chennai 600 008.
3. The District Educational Officer,
South Chennai Educational District,
Egmore, Chennai 600 008. ... Appellants
Vs.
MCN Higher Secondary School
134, Habibulla Road, T.Nagar,
Chennai 600 017, Rep.by its Secretary,
M.Gajendran ... Respondent
Writ appeal is filed under clause 15 of the Letter Patent against the
order of the learned single Judge dated 07.02.2020 made in W.P.No.1292 of
2020.
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2
For Appellants : Mr.K.Tippu Sulthan,
Government Advocate
For Respondent : Mr.G.Sankaran
JUDGMENT
(Judgment of the Court was made by S.VAIDYANATHAN, J.)
Instant writ appeal is directed against the order dated 07.02.2020
made in W.P.No.1292 of 2020.
2. When the writ appeal came up for hearing, Mr.G.Sankaran, learned
counsel appearing for the respondent submitted that the issue is covered by
a Judgment rendered by the Division Bench of this Court in W.A.No.244 of
2021 in the case of The Director of School Education, DPI Campus,
College Road, Chennai Vs M.C.N.Higher Secondary School. The same
was also accepted by the learned Government Advocate.
3. In similar and identical circumstance, the First Division Bench in
W.A.No.1022 of 2020 dated 07.01.2021 in the case of Director of School
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Education and others Vs. S.Murugan and another, the First Bench of this
Court has held thus:
"6. What is of importance is whether an aided School is required
to obtain prior permission from any authority to undertake the
process of appointment upon a vacancy arising in a sanctioned
non-teaching post. The appellants have not been able to indicate
any Rule or Notification or the like requiring prior permission to be
sought before undertaking the exercise to look for a replacement
upon a sanctioned post falling vacant in the non-teaching
category.
7. It is possible that there may be surplus staff in other
Government-aided Schools in the District or nearby areas. It is
equally possible that the Government may require the surplus staff
to be deployed at other aided Schools upon vacancies in similar
post arising thereat. However, there has to be a mechanism which
has to be put in place for such purpose and the process has to be
certain. It would not do for the Department to refuse an
appointment merely because at the time of appointment, the
Department finds surplus staff of similar description in other aided
Schools in the District or the locality. The position as to surplus
staff ought to exist at the time when the vacancy arose or, at any
rate, prior to the process of appointment being initiated. Once the
appointment process is undertaken and a person is identified, it
may no longer be open to the Department to refuse the
appointment and undo the process by citing surplus staff.
8. In such a scenario, the Department may do well to either
bring in Rules that would require aided Schools to obtain
permission from the relevant District Educational Officer before
undertaking an appointment procedure and the District
Educational Officer being required to respond to the request within
a fixed time, so that the relevant School can fill up the vacancy
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without undue delay. In the alternative, the relevant District
Educational Officer may circulate the description and number of
the surplus staff at various levels to all Schools for such Schools
to be able to fill up any vacancy that arises from the surplus staff
at the relevant post. In the absence of either, an aided School
cannot be faulted for undertaking the exercise of appointing a
person to a sanctioned post or seeking the appointment. The
permission that is sought is not permission to fill the post as such,
but permission to enable the District Educational Officer to
scrutinise whether the appointment procedure was alright and
whether the incumbent fits the bill.
9. In the present case, the order impugned cannot be
faulted, since there was no mechanism of either kind as referred
to above. It is irrelevant that the vacancy arose in 2014 and the
attempt to fill the vacancy was undertaken in 2018. Since there
was no Rule to seek prior permission from the District Educational
Officer before the appointment procedure was undertaken, the
School cannot be blamed. The appointment cannot be denied
merely because there was surplus staff which the School was not
made aware of before the School undertook the appointment
procedure."
4. Following the above decision rendered by the Division Bench of
this Court cited supra, the W.A.No.244 of 2021 was also dismissed by
judgment dated 03.08.2021. Since we are also in agreement with the said
judgment and no ground is made out to take a different view from that of the
same arrived at by the Hon'ble First Bench of this Court, the instant writ
appeal is also disposed of on the same lines. No costs. Consequently
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connected miscellaneous petition is also closed.
(S.V.N.J.,) (A.A.N.J.,)
03.09.2021
dpq
Speaking order/Non-speaking order
Index: Yes
Internet: Yes
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S. VAIDYANATHAN , J.
and
A.A.NAKKIRAN , J.
dpq
To
1. The Director of School Education
DPI Campus,
College Road,
Chennai 600 006.
2. The Chief Educational Officer,
Chennai District,
Egmore, Chennai 600 008.
3. The District Educational Officer,
South Chennai Educational District,
Egmore, Chennai 600 008. .
W.A.No.53 of 2021
and CMP.No.524 of 2021
03.09.2021
http://www.judis.nic.in
