Madras High Court
H.Vinoth vs The Chief Educational Officer on 23 June, 2022
W.P.(MD).No.3184 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD).No.3184 of 2021
and
W.M.P.(MD).No.2523 of 2021
H.Vinoth ... Petitioner
Vs.
1.The Chief Educational Officer,
Tuticorin,
Tuticorin District.
2.The District Educational Officer,
Kovilpatti,
Tuticorin District.
3.The Correspondent,
St.Louis Higher Secondary School,
Keelavaippar – 628 903,
Tuticorin District. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings issued by the first respondent
herein in Na.Ka.No.824/A3/2020 dated 03.02.2020 and quash the same and
further direct the first respondent herein to approve the petitioner's appointment
as BT Assistant (English) in the third respondent school w.e.f., the date of
appointment viz., 01.06.2018 with salary and attendant benefits.
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W.P.(MD).No.3184 of 2021
For Petitioner : Mr.A.Ajith Geethan
For R-1 and R-2 : Mr.S.Shaji Bino,
Special Government Pleader.
For R-3 : No appearance
ORDER
The petitioner herein was appointed as a BT Assistant (English) with
effect from 01.06.2018 by the third respondent School. When the third
respondent had submitted a proposal for approval of the petitioner's
appointment, the same came to be rejected by the first respondent through the
impugned order, dated 03.02.2020, by observing that when the sanction post
from Secondary Grade Teacher to Graduate Teacher is sought to be converted,
prior permission from the Department has to be obtained. It was further stated
that 31 surplus Graduate Teachers are there in the entire Tuticorin District for
the academic year 2018-2019 and therefore, the petitioner's appointment cannot
be approved.
2. Both the reasons cited by the first respondent herein in the impugned
order have already been settled against them in various decisions of this Court.
Insofar as the first reason cited that prior permission for upgradation of a post is
concerned, the Hon'ble Division Bench of this Court, in the case of The
Government of Tamil Nadu, Represented by Secretary to Government,
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W.P.(MD).No.3184 of 2021
Department of School Education, Madras and others Vs. J.Remila and
another, reported in 2018-1-Writ L.R. 410, had held that such prior permission
was not required in the case of minority institution and that the Government
Orders relied upon by the respondents in this regard including
G.O.(Ms).No.144, School Education Department dated 04.07.2008 were not
applicable.
3. I had the occasion to consider this aspect in the case of Immaculate
Arputha Mary Usha Vs. The Government of Tamil Nadu, Represented by its
Secretary, Education Department, Chennai and others passed in
W.P.No.16977 of 2018, dated 08.02.2022, in the following manner:
“7. In the case of J.Remila (supra), the facts
involved in that case was when the School appointed a
B.T. Assistant Teacher in the vacancy of a Secondary
Grade Teacher, the proposals for approval was rejected
by the Educational Authorities. The stand taken by the
Educational Department was that a prior permission for
conversion of a post is required for making
appointments even in a Minority Institution. Various
Government Orders were referred to, in support of their
claim including G.O.Ms.No.144, dated 04.07.2008. The
Hon'ble Division Bench of this Court, had held that
these Government Orders are not applicable to the
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W.P.(MD).No.3184 of 2021
Government Aided Schools and the rejection of the
proposal for approval would amount to interfering with
the administration of a Minority Institution. The relevant
portion of the orders are as follows:-
“17. The Learned counsel for the First
Respondent, then drew our attention to the
observations recorded by the Learned Single
Judge in W.P.(MD)No.18044 of 2011, filed by
the Second Respondent, wherein the
Government Orders namely, G.O.(Ms).
Nos.244, 125 and 144, which the Appellants
have relied upon in this Appeal have been duly
considered in the impugned judgment, which is
the subject matter of challenge in this Appeal.
The Learned Single Judge, has held that G.O.
(Ms).No.244 and G.O.(Ms).No.144 are not
applicable to the Government Aided Schools
for want of jurisdiction of the Government to
issue any such instructions.
...
30. In the case on hand, it is not the case
of the Appellants that the appointment
procedure as regards the First Respondent was
not fair, discriminatory and irrational.
Therefore, applying the ratio held in the
judgment reported in (2017) 3 SCC 619, cited
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W.P.(MD).No.3184 of 2021
supra, it is held by this Court that the grounds
raised by the Appellants for sustaining the
impugned proceedings dated 19.05.2014 and
21.09.2015, does not deserve any merit.
31.This Court opines that even though
the State has the power to regulate Minority
Educational Institutions in the interest of
'Efficiency', 'Discipline', 'Health', 'Sanitation',
'Morality', 'Public Order', the impugned
proceedings dated 19.05.2014 in
O.Mu.No.1143/83/2014, on the file of the Third
Appellant and the consequential proceedings
dated 21.09.2015 in O.Mu.No. 4309/AA1/2015,
on the file of the Fourth Appellant, do not
come within those parameters and therefore,
the said impugned proceedings interferes with
an overall administrative control of the Second
Respondent Minority Institution over its staff
and abridges/dilutes their right to establish
and administer their Educational Institution.”
8. Likewise, in the case of R.C. Susai Higher Secondary
School rep. by its Correspondence Kazhugumalai
Tuticorin District Vs. Government of Tamil Nadu rep.
by its Secretary to Government, School Education
Department and Others passed in W.P.No.18044
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W.P.(MD).No.3184 of 2021
of 2011, dated 21.03.2012, the applicability of G.O.Ms.
No.144, dated 04.07.2008 was negatived as follows:-
“94. However, the second part of the
order stipulating that once the post is
converted, under no circumstances, it can be
re-converted in future is certainly contrary to
the object sought to be achieved. In case of
necessity of the teacher is of the particular
subject depending on the strength of the school
and students, there can be no bar to re-convert
the post. (There is no necessity to go into this
point), as the G.O.Ms.No.144 dated 04.07.2008
has no application to the case of the petitioner,
as it is not published in the Government
Gazette, nor the rules have been framed as per
the procedure laid down under Section 56 of
the Act. Unless the amended rules are
published in the Government Gazette, it can
have no force of law and, cannot apply to
privately managed aided schools.”
The aforesaid extracts are self-explanatory. In the
background of the aforesaid decisions cited above, the
rejection of the proposal for approval of the petitioner's
post is illegal.”
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W.P.(MD).No.3184 of 2021
4. The aforesaid decision itself is self-explanatory. Hence, the first
reason assigned by the first respondent in the impugned order, that prior
permission for approval is required, cannot be sustained in view of the
aforesaid decisions.
5. Insofar as the second reason cited by the first respondent in the
impugned order for rejecting the proposal for approval is concerned, the first
respondent has treated the surplus Graduate Teachers for the year 2018-2019
for the entire district as one unit. This reasoning is contrary to the decision of
the Hon'ble Division Bench of this Court in the case of Secretary to
Government and others Vs. Iruthaya Amali and another, reported in 2021
SCC Online Mad 1285, whereby, the Hon'ble Division Bench had held that for
the purpose of fixing the staff strength of the School, the School as such shall
be treated as one unit and not the Educational agency / joint management /
corporate management.
6. In the instant case, the respondents have taken into consideration the
surplus Graduate Teachers in the entire district which is contrary to the decision
of the Hon'ble Division Bench and hence, the second reason stated for rejection
also cannot be sustained. In the result, the impugned order requires
interference and the petitioner's appointment requires to be approved.
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W.P.(MD).No.3184 of 2021
7. Accordingly, the impugned order dated 03.02.2020 is quashed.
Consequently, there shall be a direction to the second respondent herein to
forthwith pass fresh orders on the proposal sent by the third respondent dated
09.05.2019, approving the petitioner's appointment dated 31.05.2018 as
BT Assistant (English), within a period of four (4) weeks from the date of
receipt of a copy of this order.
8. This Writ Petition stands allowed accordingly. There shall be no order
as to costs. Consequently, connected miscellaneous petition stands closed.
23.06.2022
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Chief Educational Officer,
Tuticorin,
Tuticorin District.
2.The District Educational Officer,
Kovilpatti,
Tuticorin District.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.3184 of 2021
M.S.RAMESH, J.
Lm
W.P.(MD).No.3184 of 2021
23.06.2022
https://www.mhc.tn.gov.in/judis
