Madras High Court
P.Saravanan vs Director Of School Education on 10 January, 2022
W.P. No.18279 of 2020
IN THE HIGH COURT OF JUD9ICATURE AT MADRAS
DATED: 10.01.2022
CORAM
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
W.P. No.18279 of 2020
and WMP Nos.26656 and 26657 of 2020
P.Saravanan
… Petitioner
Vs
1. Director of School Education,
DPI Campus, Chennai – 600 006.
2. Chief Educational Officer,
Thiruvannamalai District.
3. The District Educational Officer,
Arani, Thiruvannamalai.
4. The Secretary/Correspondent,
Subramanian Sastriar Higher Secondary School
(Aided), Arani.
… Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India praying
for the issuance of Writ of Certiorarified Mandamus calling for the records of
the 2nd respondent in Na.Ka.No.162/E2/2020 dated 19.03.2020 and the
consequential order of the 3rd respondent dated 03.07.2020 in
Na.Ka.No.3623/Aa2/2019 and quash the same and consequently direct the
respondent to approve the appointment of the petitioner to the post of Nigh
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W.P. No.18279 of 2020
Watchman in the 4th respondent school with effect from 24.07.2019 with all
attendant including service and monetary benefits to the petitioner.
For Petitioner : Ms.Dakshayani Reddy
For Respondent : Mr.V.Nanmaran
Additional Government Pleader
ORDER
The case of the petitioner is that the 4th respondent school is a
Government Aided non-minority school, which selected and appointed the
petitioner as Night Watchman, with effect from 24.07.2019. According to him,
before selection, the 4th respondent school has obtained a list of candidates from
the Employment Exchange and also caused paper advertisement calling for
candidates. Only after going through the regular selection process, the
petitioner was selected and appointed. .
2. After the appointment of the petitioner, the school has forwarded the
proposal for his approval to the respondent authorities. The fixation of staff
strength for the 4th respondent school included a post of Night Watchman.
However, according to the petitioner, the proposal was rejected by the
respondents only on the ground that prior permission was not obtained in terms
of Rule 15(4) of the Tamil Nadu Private Schools Regulation, 1974.
Challenging the same, the petitioner is before this Court.
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W.P. No.18279 of 2020
3. Ms.Dakshayani Reddy, learned counsel for the petitioner would
submit that the rejection by the respondents on the stated grounds is
misconceived and also contrary to the legal dictum laid down by this Court on
several occasions. According to the learned counsel, that the provision that has
been relied on by the respondent authorities is held to be not applicable to the
appointment of non-teaching staff against sanctioned vacancy. This Court has
repeatedly held so, but unfortunately, despite the directions of this Court
consistently, over the years, the educational authorities regularly reject such
application without any application of mind.
4. The learned counsel for the petitioner would draw the attention of this
Court a Division Bench decision rendered in W.A.No.4011 of 2019 dated
11.02.2020 and relying upon paragraph No.6, wherein, on the basis of the
earlier legal precedent, it has been held that Rule 15(4) of 1974 Rules does not
specifically mandate requirement of prior permission in relation to the
appointment of non-teaching staff in an Aided High or Higher Secondary
School. The relevant observation and the ruling of the Division Bench of this
Court as found in paragraph No.6 is extracted hereunder:
6. We have considered the submissions raised and we find that the provisions
of Rule 15(4) of the 1974 Rules, does not specify the applicability of the Rule
of prior permission in relation to the appointment of a non-teaching staff of an
Aided High or Higher Secondary School. In the instant case, the issue is about
the appointment of a Lab Assistant, which is admittedly a non-teaching post.
We, therefore, find that in the absence of any such specific intention in the
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W.P. No.18279 of 2020
Rule, to apply the same for seeking a prior permission to appoint a non-
teaching staff would be contrary to the ratio of the judgment in the case of
R.Kuttiswamy (supra) as relied on by the respondent that is squarely
applicable. We see no reason to differ from WA.No.4011 of 2019 the view
taken therein in relation to appointments against non-teaching posts that have
been made prior to the issuance of G.O.Ms.No.101 dated 18.05.2018. The
judgment in the case of The Director of Elementary Education and others Vs.
P.Manikandan and another (supra) was in relation to the appointment of a
teacher and not a non-teaching staff. The ratio thereof is, therefore,
distinguishable and not applicable in the present case. Accordingly, no prior
permission was required in the present case for appointing the respondent/writ
petitioner as a Lab Assistant.
5. The learned counsel would also refer to paragraph Nos.8 and 9 of a
very recent decision of yet another Division Bench of this Court rendered in
W.P.(MD) No.2192 of 2021 dated 15.12.2021, which read as follows:
8. As far as the mode of appointment is concerned, it is to be noted that the
second respondent school sought for eligible candidates from the Employment
Exchange. However, the Employment Exchange did not furnish the list of
eligible candidates, instead he sent a reply, stating that the appointment of the
Secretary of the second respondent school was not approved. Therefore, the
second respondent school has given a publication in a newspaper, calling for
the eligible candidates and after shortlisting the candidates by conducting
interview, they selected the first respondent. Since it is a sanctioned post and
the person who was working in the place also died, subsequently, the petitioner
was appointed in the place of said vacancy. Since it is a sanctioned post and
the second respondent school is a aided non-minority school and the post in
which the first respondent was appointed, is a nonteaching post, the grounds
taken by the appellants are not sustainable. Regarding the appointment of non-
teaching staff in the sanctioned post is concerned, the first respondent referred
to the judgment in the case of Deva Asir vs. Secretary to the Government,
School Education Department, Chennai, reported in [2016-III-LLJ-49(Mad)]
where it is held as follows:
“ 24.1.The learned counsels for the petitioners submitted that once the
posts are sanctioned by the Director under Rule 15(1) of the Rules, the
DEOs/DEEOs are bound to sanction grant as per Rule 11(2) of the
Rules and there is no need to get prior permission from any authority
to fill the vacancies that would arise in those sanctioned posts. Unless
the Sate Government suitably amends the provisions of the Act and the
Rules making it mandatory to obtain prior permission for filing up of
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W.P. No.18279 of 2020
those sanctioned non-teaching posts, the Government could not issue
impugned Government orders. I am in entire agreement with the said
submission. Since there is no such provision in the Act and the Rules to
seek prior permission, the official respondents in these writ petitions,
DEOs/DEEOs, could not rely on the impugned Government
Orders/Government Letters to seek permission of the State Government
or the Director or any authority to fill up the sanctioned posts for
approving of the same for the purpose of grant and therefore, the
impugned Government Orders and the consequential proceedings
refusing to approve of the non-teaching posts for the purpose of grant
are issued in gross violation of the provisions of Section 19 and 20 of
the Act read with Rule 15 of the Rules.”
9.For the foregoing reasons, there is no merit in this Writ Appeal, therefore,
this Writ Appeal stands dismissed. No costs. Consequently, connected
miscellaneous petition is also closed.
6. On behalf of the respondents, a counter affidavit has been filed.
However, the learned counsel appearing for the respondents would have no
quarrel with the above stated legal principles in respect of the subject matter of
lis before this Court. In fact, in the counter affidavit, it has been perfunctorily
repeated that no prior permission was obtained by the 4 th respondent school
from the second respondent while appointing the petitioner as Night
Watchman. Apart from the above objection, there are other objections raised
in the counter affidavit. In fact, the counter affidavit replicated the reasons set
forth in the impugned orders of rejection of appointment.
7. This Court considered the objections of the respondents and also the
submissions made on behalf of the petitioner.
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W.P. No.18279 of 2020
8. As far as the issue of obtaining prior permission for appointment of
non-teaching staff in a sanctioned post is concerned, it has been consistently
held by the Courts that no such requirement could be insisted upon. The Rules
that are relied upon by the respondents are not to be made applicable to the
appointment of the non-teaching staff. In such circumstances, the rejection of
the proposal of the petitioner's appointment as Night Watchman in the 4 th
respondent school cannot be sustained in law.
9. This Court finds that there are other objections raised in the impugned
order as well as in the counter affidavit and in the event of the 4th respondent
school satisfying the objections as raised like non-furnishing of a copy of the
newspaper advertisement and non-furnishing of documents relating to obtaining
list of eligible candidates from the Employment Exchange etc., the approval
cannot be withheld for not obtaining prior permission by the 4 th respondent
school.
10. In the aforesaid circumstances, the respondent authorities are directed
to grant approval subject to the school satisfying the questions raised by the
authorities as to the procedure in which the selection was conducted and final
appointment made. The 4th respondent school is also directed to submit copies
of the documents that are required to be taken into consideration for grant of
approval by the authorities.
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W.P. No.18279 of 2020
11. On being satisfied with the other requirements as stated above, the
authorities are directed to pass appropriate orders granting approval, if it is
otherwise in order, in respect of appointment of the petitioner as Night
Watchman and such order shall be passed within a period of six (6) weeks from
the date of receipt of a copy of this order.
12. The Writ Petition stands allowed in the above terms. No costs.
Connected Miscellaneous Petitions are closed.
10.01.2022
sl
Index:Yes/no
speaking/non-speaking order
To
1. Director of School Education,
DPI Campus, Chennai – 600 006.
2. Chief Educational Officer,
Thiruvannamalai District.
3. The District Educational Officer,
Arani, Thiruvannamalai.
4. The Secretary/Correspondent,
Subramanian Sastriar Higher Secondary School
(Aided), Arani.
V.PARTHIBAN,J.
Sl
https://www.mhc.tn.gov.in/judis
W.P. No.18279 of 2020
W.P. No.18279 of 2020
and WMP Nos.26656 and 26657 of 2020
10.01.2022
https://www.mhc.tn.gov.in/judis
