Madras High Court
The State Of Tamil Nadu vs The Cor on 2 December, 2022
W.A(MD) No.526 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02 .12.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A(MD) No.526 of 2022
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 – 600 006.
3. The Chief Educational Officer,
Tirunelveli, Tirunelveli District.
4. The District Educational Officer,
Cheranmahadevi, Tirunelveli,
Tirunelveli District. ... Appellants
-vs-
The Correspondent,
St.Mary's Higher Secondary School,
Vickramasingapuram,
Tirunelveli District – 627 425. ... Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the
order dated 23.03.2021 made in W.P(MD) No.215 of 2021.
____________
https://www.mhc.tn.gov.in/judis
Page 1 of 12
W.A(MD) No.526 of 2022
For Appellants : Mr.S.Saji Bino
Special Government Pleader
For Respondent : Ms.A.Amala
JUDGMENT
(Judgment of the Court was
made by J.SATHYA NARAYANA PRASAD, J.)
The challenge made in this writ appeal is to the order dated
23.03.2021 passed by the learned Judge in W.P(MD) No.215 of 2021, by
which, the appellants were directed to forthwith approve the writ
petitioner's appointment as Office Assistant, with effect from 03.10.2007,
in the school namely, Sr.Mary's Higher Secondary School,
Vickramasingapuram, and to disburse the grant-in-aid towards his salary
with all attendant benefits from 03.10.2007.
2. The Government is the appellants and the writ petitioner –
School is the respondent herein.
3. The brief facts leading to the filing of the writ appeal are as
follows:
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
3.1. The respondent herein is a minority institution recognised in
terms of Article 13(1) of the Constitution of India. It was established as
middle school in the year 1944. Later, it was upgraded as High School in
the year 1949 and as Higher Secondary School in the year 1979. Now,
the School is permanently recognised and fully aided by the Government
of Tamil Nadu and it offers education from Standards VI to X both in
Tamil and English Medium. There are around 2000 students studying in
the school and it provides education at free of charges, except the meagre
sum specified by the Government and it is known for its academic
excellence and extra-curricular activities.
3.2. The post of Office Assistant in the School fell vacant from
01.07.2007, due to the retirement of one S.Pattabiramanon on 30.06.2007
and in that vacancy, the respondent School appointed one A.Jeyaraj as
Office Assistant with effect from 03.10.2007 and for the purpose of
disbursement of grant-in-aid towards his salary, they submitted a
proposal to the fourth appellant / District Educational Officer on
17.10.2007, seeking approval of the said appointment, however, no
orders were passed on the same.
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
3.3. The respondent repeatedly approached the fourth appellant
herein to approve the appointment of the said A.Jeyaraj as Office
Assistant, but there was no response for nearly ten long years. They
again sent a proposal to the fourth appellant on 03.11.2017 and on receipt
of the same, the fourth appellant vide proceedings in O.Mu.No.
3931/A3/2017, dated Nil.01.2018, sought for certain information and
vide proceedings dated 16.11.2018, also sought additional particulars. In
response to the same, the respondent vide letter dated 26.02.2019,
furnished all the documents to the fourth appellant. Thereafter, the third
appellant / Chief Educational Officer vide proceedings dated 25.09.2020,
returned the said proposal by directing the respondent to comply with the
provisions of Clause 3(x) of G.O.Ms.No.238, School Education [Pa.Ka.
6(1)] Department, dated 13.11.2018, wherein, it has been stated that if
there is any sanctioned vacancy to be filled up in the aided school, it
should be filled up by the surplus post available in the other aided
schools, instead of making fresh appointments. Aggrieved by the same,
the respondent filed the writ petition, which was allowed by the Writ
Court. Therefore, the Government has come forward with the present
writ appeal, to set aside the order of the learned Judge.
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
4. The learned Special Government Pleader appearing for the
appellants submitted that the appellants have specifically imposed ban in
respect of the direct recruitment of non-teaching posts in aided schools
vide its letter No.11462/D2/2006-1, dated 26.05.2006 and letter No.
8884/D1/2011-2, dated 09.07.2012. Moreover, the Government Order in
G.O.Ms.No.238, dated 13.11.2018, has set out certain guidelines for
filling up the posts of non-teaching staff in the Government aided private
schools. In such circumstances, the respondent ought to have redeployed
the surplus Office Assistant from other school, but they have appointed
the said A.Jeyaraj as Office Assistant on 03.10.2007 and sought approval
of the same. Thus, according to the learned counsel, the appointment
made during ban period, that too in regular time scale, is in violation of
G.O.Ms.No.238, dated 13.11.2018, which was in vogue and therefore,
the order impugned in this writ appeal, directing the appellants to
approve the said appointment forthwith and pay the consequential
benefit, has to be set aside.
5. On the contrary, the learned counsel for the respondent / writ
petitioner submitted that the respondent School being a minority
educational institution, is the appointing authority as per Article 30(1) of
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
the Constitution of India and no appointment can be made by deploying
some surplus staff from other schools, as it infringes the absolute right of
administration conferred to the Minority Educational Institution under
Article 30 of the Constitution of India. The learned counsel further
submitted that the said A.Jeyaraj was appointed as Office Assistant on
03.10.2007 in a regular sanctioned vacancy due to the retirement of the
previous incumbent and is working without any break or blemish from
the date of appointment and hence, the proposal seeking approval of the
said appointment cannot be rejected, by citing G.O.Ms.No.238, dated
13.11.2018. It is also submitted by the learned counsel that Clause 3(x)
of the said G.O.Ms.No.238, can be applied only to the appointments
made on or after 13.11.2018, whereas the incumbent was appointed on
03.10.2007. Therefore, the learned Judge has rightly allowed the writ
petition and directed the appellants to approve the appointment made by
the respondent school.
6. The learned counsel for the respondent in support of her
submissions, placed reliance on a Division Bench judgment of this Court
in The State of Tamil Nadu, Department of School Education vs. The
correspondent, Holy Family Girls Higher Secondary School W.A(MD)
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
No.1052 of 2020 dated 06.12.2021, wherein, in an identical case, this
Court directed the appellants to confirm the appointment and disburse the
grant-in-aid to the employees therein. The relevant paragraphs of the
judgment read as follows:
“3.The Government is the appellants herein,
challenging the direction given by this Court to disburse the
grand-in-aid towards salary of certain employees namely,
S.Ignatius and D.Jeya Seela Rajathi, who were appointed as
Record Clerk and Office Assistant respectively from the date
of their appointment with all other attendant benefits. The
appellants have rejected the approval by stating that G.O.
(Ms)No.238, School Education(Pa.Ka. 6(1))Department,
dated 13.11.2018. The said Government Order does not
recognize these two posts namely, the Record Clerk and the
Office Assistant. Admittedly, for the above said posts,
sanction was granted by virtue of Government Order in
G.O(Ms)No.1731, Education Department, dated 28.12.1996.
G.O.(Ms)No.238, School Education(Pa.Ka.6(1))
Department, dated 13.11.2018 has set out certain guidelines
for filling up the posts of non-teaching staffs in Government
Aided Private Schools and it does not refer to the post of
Record Clerk or Office Assistant. Therefore, it is now argued
by the learned Additional Government Pleader appearing for
the appellants that since the Government has taken a policy
decision to limit the non-teaching staffs, it is a power to
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
restrict the grant-in -aid for such posts, taking into account
the reduction in expenses to be incurred by the Government
and it is stated that the said Government Order could not be
issued with retrospective effect from the date of issuance of
the said Government Order. Admittedly, the staffs in question
were promoted or appointed on 1.6.2018 and the
Government Order was issued only on 13.11.2018. The Writ
Appeal filed by the appellants is based on the said grounds,
cannot be maintained.
4.Accordingly, the Writ Appeal is dismissed,
confirming the order of the learned Single Judge and the
appellants are directed to disburse the grant-in-aid to the said
two employees namely, S.Ignatius and D.Jeya Seela Rajathi
from the date of their promotion or appointment together
with all other attendant benefits, within a period of eight
weeks from the date of receipt of a copy of this order. No
costs. Consequently, connected Miscellaneous Petition is
dismissed.”
Thus, the learned counsel prayed for dismissal of this writ appeal.
7. Heard the learned Special Government Pleader appearing for the
appellants and the learned counsel for the respondent and also perused
the materials placed before this court.
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
8. Admittedly, in the present case, the appointment of Office
Assistant in the respondent – School was made on 03.10.2007, that too,
in the sanctioned vacancy, however, the appellants after relying upon
G.O.Ms.No.238, School Education [Pa.Ka.6(1)] Department, dated
13.11.2018, have rejected the proposal of grant-in-aid for the post of
Office Assistant. On the other hand, the learned judge, after relying on
the judgment of this Court in the Correspondent, Holy Family Girls
Higher Secondary School (cited supra), came to the conclusion that the
reliance placed on G.O.Ms.No.238, dated 13.11.2018 by the appellants
for the purpose of rejecting the respondent's proposal seeking approval of
appointment, cannot have retrospective effect and therefore, the rejection
of the proposal by the appellant authorities cannot be sustained.
Accordingly, the learned Judge allowed the writ petition and directed the
appellants to forthwith approve the said appointment and grant
consequential benefits. This court finds no reason to interfere with the
said order of the learned Judge, as the said G.O.Ms.No.238, cannot be
applicable with retrospective effect from the date of its issuance, to the
case of the respondent.
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
9. In fine, this Writ Appeal deserves to be dismissed as devoid of
merits and is accordingly, dismissed. As a sequel, the appellants are
directed to comply with the order of the learned Judge within a period of
eight weeks from the date of receipt of a copy of this judgment. No costs.
[R.M.D., J.] [J.S.N.P., J.]
02 .12.2022
Index : Yes / No
Internet : Yes / No
pkn
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
To
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 – 600 006.
3. The Chief Educational Officer,
Tirunelveli, Tirunelveli District.
4. The District Educational Officer,
Cheranmahadevi, Tirunelveli,
Tirunelveli District.
____________
https://www.mhc.tn.gov.in/judis
W.A(MD) No.526 of 2022
R.MAHADEVAN, J.
and
J.SATHYA NARAYANA PRASAD, J.
pkn
W.A(MD) No.526 of 2022
02.12.2022
____________
https://www.mhc.tn.gov.in/judis
