Madras High Court

A.Usha Juliet Daisy vs The District Educational Officer on 30 June, 2022

                                                                        W.P.(MD)No.3347 of 2021

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 30.06.2022

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE M.S.RAMESH

                                             W.P.(MD)No.3347 of 2021
                                                      and
                                            W.M.P.(MD)No.2702 of 2021

                     A.Usha Juliet Daisy,
                     B.T.Assistant,
                     St.Aloysius Middle School,
                     T.Kallikulam,
                     Tirunelveli District.                                   ... Petitioner

                                                        Vs.

                     1. The District Educational Officer,
                        Vallioor,
                        Tirunelveli District.

                     2. The Block Development Officer,
                        Radhapuram,
                        Tirunelveli District.

                     3. The Correspondent,
                        St.Aloysius Middle School,
                        T.Kallikulam,
                        Tirunelveli District.                              ... Respondents




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https://www.mhc.tn.gov.in/judis
                                                                              W.P.(MD)No.3347 of 2021

                     PRAYER: Petition filed under Article 226 of the Constitution of India
                     praying for issuance of Writ of Certiorarified Mandamus, calling for the
                     records relating to the impugned proceedings issued by the first respondent
                     herein in Na.Ka.No.2625/A1/2020 dated 15.12.2020 and quash the same
                     and further direct the first respondent herein to approve the petitioner's
                     appointment as B.T.Assistant (Tamil) in the third respondent School with
                     effect from the date of appointment viz., 23.06.2017 with salary and
                     attendant benefits.

                                  For Petitioner     :        Mr.E.V.N.Siva
                                                              for Mr.A.Ajith Geethan

                                  For Respondents    :        Mr.S.Shaji Bino
                                                              Special Govt. Pleader for R1 & R2
                                                              Fr.Savarimuthu
                                                              for M/s.Father Xavier Associates
                                                              for R3

                                                     ORDER

The third respondent herein is a Minority Aided School, who had

appointed the petitioner herein in a sanctioned post of B.T.Assistant, with

effect from 23.06.2017. The proposal submitted by the School to the first

respondent on 13.11.2017, was returned by the second respondent herein

predominantly on the ground that the petitioner herein, who is a

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B.T.Assistant (Tamil), sought to be appointed in the sanctioned post of

B.T.Assistant (Maths) and further that there are surplus teachers in the

School run by the R.C.Corporate Management. When this proceedings came

to be challenged by the petitioner, this Court, by order dated 22.03.2013 in

W.P.(MD)No.25232 of 2018, directed the Authorities to re-consider the

proposal. In pursuance to the order of this Court, the proposal of the School

came to be rejected through the impugned order dated 15.12.2020 on the

ground that as per the Government Letter dated 04.12.2019, fresh

appointments should not be made and also on the ground that no prior

approval was obtained by the School for conversion of the sanctioned post

of B.T.Assistant (Maths) into B.T.Assistant (Tamil).

2. The letter of the Government dated 04.12.2019 referred to was

the outcome of the decision of this Court passed in a batch of Writ Petitions

in the case of Secretary to Government and others v. Iruthaya Amali and

another reported in 2021 SCC OnLine Mad 1285. In the said decision,

what was ordered is that the excess teaching staffs are required to be

identified in all category schools and till such time, the "Government" shall

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not appoint Teachers under any category. The order does not speak about

appointment that have already been made and which are awaiting approval

of the authorities. This decision has been ratified in several judgments

passed by this Court in identical circumstances. As such, placing reliance on

the Government Letter dated 04.12.2019 and rejecting the petitioner's claim

on the ground that until surplus teachers are filled, no approval can be

granted, is misplaced and liable to be set aside.

3. Insofar as the reason assigned by the first respondent that the

conversion of the sanctioned post is impermissible is concerned, this aspect

has been considered in the light of various decisions of this Court, including

the case of C.V.Sreeja Vs. The Chief Educational Officer and others

passed in W.P.(MD)No.16293 of 2020 dated 18.02.2021 whereby, it is held

as follows:

"2.2. Insofar as the second reason assigned in the impugned order that the approval for conversion of the subject was not obtained is concerned, the issue was already dealt with by the Hon'ble Division Bench of this Court in the case of State of Tamil Nadu vs. the Correspondent,

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St.Thomas Higher Secondary School in W.A.(MD) No.716 of 2014 and the relevant portion of the order reads thus:

“4. The learned Single Judge, while considering the matter referred to the decision of the Division Bench, in W.A.No.1198 of 2007 and allowed the writ petition. The legal question involved in this matter is as to whether the Minority Institution can be compelled to follow a subject roaster without there being appropriate amendment to the relevant Rules. This issue was considered by the Division Bench and it was held in favour of the institution. It was pointed out by the learned counsels on either side that the case of the appellants / respondents itself is based on G.O.(Ms).No.144, Education (D1) Department, dated 04.07.2008. This Government Order was subject matter of challenge in R.Emerson Udaisingh vs. The State of Tamil Nadu, Rep. by its Secretary, Department of School Education and others, W.P.(MD).No. 2750 of 2012 and this Court by order, dated 22.08.2013, allowed the said writ petition and quashed the said Government Order. The operative portion of the said order, dated 22.03.2013, reads as follows:

" 3. Similar issue was considered by this Court in the decision reported in 2006(5) CTC 504 - The Corporate Management, CSI Corporate Schools, CSI Diocese of Kanyakumari, Nagarcoil vs. The State of Tamil Nadu, rep by its Secretary, Chennai and others and this Court quashed the

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Circular, dated 26.10.2004 issued, restricting the number of teachers having degrees in the same subject in a school.

4.The said decision was considered by a Division Bench 4 of the Principal Seat in the Judgment dated 20.09.2007 made in W.A.No.1198 of 2007 wherein it is held thus:

'3. In fact the legal implication of the said proceedings dated 26.10.2004, was considered by this Court in the light of Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 (in short T.W. Act 29 of 1974) in the Correspondent, Britannia Higher Secondary School, Chennai vs. State of Tamil Nadu, rep. by its Secretary, Department of School Education, Chennai and others (2007 (2) MLJ 760) and held that the said Act 29/74 does not contemplate any subject roster to be followed regarding the appointment of Middle Grade Graduate teachers. That was also the decision taken earlier by the Madurai Bench of Madras High Court in the corporate Manager, CSI Corporate Schools Vs. State of Tamil Nadu (2006 (5) CTC 504). It was also considered in the above said cases that the executive instruction cannot supersede the statutory provision, by relying upon the decision of the Supreme Court in B.N. Nagarajan Vs. State of Karnataka (1979 II LLJ 209 (SC), which was subsequently reiterated by the Supreme Court in V.Sreenivasa Reddy Vs. Government of A.P. (AIR 1995 SC 586). Therefore, by virtue

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of the above said judgments, it is the categoric decision of this Court that the proceedings of the second appellant dated 5 26.10.2004 by imposing subject roster in making appointment is not Valid and is in violation of the provisions of the Act 29/74. In view of the same, there is absolutely no reason to interfere with the order of the learned Single Judge. Consequently, the writ appeal fails and the same is dismissed with direction to the appellants to approve the appointment of V.J. Titus Prabhakar (Mathematics) with effect form the date of his appointment with salary and other benefits within a period of four weeks from the date of receipt of copy of this order ”.

4. The aforesaid extract is self explanatory. As such, the reason

assigned by the first respondent that prior approval for conversion of the

sanctioned post was not obtained, as a pre-requisite for granting approval of

the appointment, is opposed to the aforesaid decision of the Hon'ble

Division Bench of this Court.

5. Accordingly, the impugned order, dated 15.12.2020 on the file

of the first respondent is quashed and consequently, the third respondent is

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called upon to resubmit the earlier proposal dated 13.11.2017 to the first

respondent herein and on the receipt of the said proposal, the first

respondent shall forthwith pass orders, approving the appointment of the