Madras High Court
Sri Veerappa Vidyalaya Higher ... vs The Director Of School Education on 20 September, 2022
W.P.(MD)No.7069 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 20.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.7069 of 2020
Sri Veerappa Vidyalaya Higher Secondary School,
Rep., by its Secretary,
M.Veerasekaran ... Petitioner
Vs
1.The Director of School Education,
DPI Campus, College Road,
Chennai 600 006.
2.The Chief Educational Officer,
O/o., The Chief Educational Officer,
Virudhunagar District.
3.The District Educational Officer,
O/o., The District Educational Officer,
Aruppukottai, Virudhunagar District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus, to direct the second respondent to grant
approval to the appointment made by the petitioner in the post of
B.T.Assistant (Mathematics) at the petitioner's school with effect from
28.11.2018 with all consequential benefits by considering the proposal
submitted by the petitioner dated 10.12.2018 within the time period
stipulated by this Court.
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W.P.(MD)No.7069 of 2020
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.N.Satheeskumar
Additional Government Pleader
ORDER
Heard the learned counsel on either side.
2.The writ petitioner is a Non-Minority Educational Institution. A
vacancy arose in the post of B.T.Assistant (Mathematics) following the
retirement of one N.Sundararajan on 31.05.2018. The school committee
applied to the competent authority seeking permission to fill up the said
vacancy. The competent authority, namely, Chief Educational Officer,
Virudhunagar, vide proceedings bearing Mu.Mu.No.7463/A2/2018,
dated 26.10.2018 granted permission to the school management to fill up
the said vacancy subject to certain conditions. Adhering to the said
stipulations, the school committee appointed one S.Ravikumar in the said
vacancy with effect from 28.11.2018. The appointee also joined in the
said post and is working ever since. Thereafter, proposal was submitted
to the second respondent for approval of the said appointment. Since no
order was passed in the proposal, the present writ petition came to be
filed in June-2020.
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W.P.(MD)No.7069 of 2020
3.During the pendency of the writ petition, the proposal was
returned on the ground that since surplus teachers are available in
Virudhunagar District, no new appointment can be approved. Since this
order returning the proposal came to be passed after the filing of the writ
petition, this Court is entitled to mould the relief.
4.The learned counsel appearing for the petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to set aside the order dated 23.10.2020 returning
the proposal and direct the respondents to approve the appointment of the
said S.Ravikumar as B.T.Assistant (Mathematics).
5.Per contra, the respondents have filed a detailed counter affidavit
and the learned Additional Government Pleader appearing for the
respondents reiterated all the contentions set out therein. His primary
contention is that the Hon'ble Apex Court is seized of the matter in SLP
(Civil) No.12693 of 2022. A compilation set has been filed. It is seen
therefrom that one E.K.M.Abdul Gani Matharasa Islamia Primary
School, Erode, filed W.P.No.2991 of 2020 for directing the department to
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W.P.(MD)No.7069 of 2020
grant approval of appointment of certain B.T.Assistant teachers. The
said writ petition was opposed by the respondents on the ground that
G.O.Ms.No.165, School Educaiton SE2(1) Department, dated 17.09.2019
envisages deployment of surplus teachers in the district and that
therefore, no approval can be granted for appointment.
6.The learned Single Judge noted that the said Government Order
had been suspended by the Hon'ble Division Bench and that therefore,
the said Government Order ought not to come in the way. In that view of
the matter, the writ petition was disposed of on 10.02.2020 by directing
the competent authority to consider the proposal seeking approval of
appointment of B.T.Assistant. Questioning the same, the department
filed W.A.No.1177 of 2022. In the meanwhile, the Hon'ble Division
Bench had disposed of a batch of writ appeals vide a common order
dated 31.03.2021 in W.A.No.76 of 2019 etc., batch. A set of directions
had been issued therein. The department had pointed out that the said
order dated 31.03.2021 passed by the Hon'ble Division Bench had been
put to challenge before the Hon'ble Apex Court in SLP(Civil)No.15702
of 2021 and that an interim stay was also granted. The Hon'ble Division
Bench hearing W.A.No.1177 of 2022, noted that only one direction
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W.P.(MD)No.7069 of 2020
issued by the Hon'ble Division Bench in W.A.No.76 of 2019 etc., batch
alone has been stayed and that the operation of the entire judgment had
not been stayed. In that view of the matter, the writ appeal in W.A.No.
1177 of 2022 was dismissed. The appointees were however asking to
give an undertaking that they would abide by the outcome of SLP.
7.W.A.No.1177 of 2022 was dismissed on 27.04.2022. The
learned Additional Government Pleader pointed out that this judgment
was put to challenge in SLP No.12693 of 2022 before the Hon'ble Apex
Court, which by order dated 22.07.2022 stayed the judgment of the High
Court. According the learned Additional Government Pleader, thus, the
issue projected in this writ petition is the subject matter of SLP pending
before the Hon'ble Supreme Court and that therefore, the adjudication of
this writ petition ought to be deferred.
8.I carefully considered the rival contentions and went through the
materials on record. As rightly pointed out by the learned counsel
appearing for the writ petitioner, there is one fundamental factual
distinction. The institution that is subject matter of W.A.No.1177 of
2022 is a minority institution. It had filled up three vacancies, on their
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W.P.(MD)No.7069 of 2020
own, without getting any prior permission from the department by
asserting its status as a minority institution. But, in the case on hand, the
petitioner had obtained permission from the competent authority to fill
up the vacancy in the post of B.T.Assistant (Mathematics). After
adhering to the conditions set out therein, one S.Ravikumar was
appointed as B.T.Assistant (Mathematics). When the appointment of the
candidate was preceded by permission from the competent authority, it is
not open to the competent authority to now decline the approval of the
said appointment.
9.In the case of hand, G.O.Ms.No.165, School Educaiton SE2(1)
Department, dated 17.09.2019 had been relied upon. The appointment in
question was made on 28.11.2018 i.e., some 10 months before the
issuance of the aforesaid Government Order. The said Government
Order cannot operate retrospectively. The validity of any appointment
will have to be tested with reference to the legal and factual position that
obtained on the date of appointment and not on the date when the
appointment is considered for approval. Thus, looked at from any angle,
the order dated 23.10.2020 returning the proposal cannot be sustained.
The proceedings of the competent authority namely Chief Educational
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W.P.(MD)No.7069 of 2020
Officer, Virudhunagar, issued in Mu.Mu.No.7463/A2/2018, dated
23.10.2020 is hereby quashed. The respondents are directed to approve
the petition mentioned appointment forthwith w.e.f., 28.11.2018. Grant-
in-aid shall be disbursed towards the appointee's salary and other
allowance without any delay and forthwith.
10.The Writ Petition stands allowed on these terms. No costs.
20.09.2022
Index : Yes/No
Internet : Yes/No
Rmk
To
1.The Director of School Education,
DPI Campus, College Road,
Chennai 600 006.
2.The Chief Educational Officer,
O/o., The Chief Educational Officer,
Virudhunagar District.
3.The District Educational Officer,
O/o., The District Educational Officer,
Aruppukottai, Virudhunagar District.
G.R.SWAMINATHAN, J.,
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.7069 of 2020
Rmk
W.P.(MD)No.7069 of 2020
20.09.2022
https://www.mhc.tn.gov.in/judis
