Madras High Court

The Director Of Elementary ... vs Thiruvavaduthurai Adheenam ... on 5 June, 2023

                                                                         W.A.No.295 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 05.06.2023

                                                        CORAM

                             THE HON'BLE MRS. JUSTICE J.NISHA BANU
                                              AND
                       THE HON'BLE MR. JUSTICE D.BHARATHACHAKRAVARTHY

                                               W.A.No.295 of 2020
                                                      and
                                              C.M.P.No.5063 of 2020


                     1.The Director of Elementary Education,
                       DPI Campus, College Road,
                       Chennai – 600 006.

                     2.The District Educational Officer,
                       Mayiladuthurai,
                       Nagapattinam District.

                     3.The Block Educational Officer,
                       Kuthalam,
                       Nagapattinam District.                         ... Appellants

                                                        Versus

                     Thiruvavaduthurai Adheenam Middle School,
                     Thiruvavaduthurai,
                     Kuthalam Union,
                     Nagapattinam District,
                     Rep. By its Correspondent,
                     P.Sundaresan.                                    ... Respondent




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                                                                                         W.A.No.295 of 2020

                                  Prayer : Appeal filed under Clause 15 of the Letters Patent, to set
                     aside the order dated 08.01.2020 passed in W.P.No.368 of 2020 and allow
                     this Writ Appeal.


                                        For Appellants        : Mr. Abisekmurthy,
                                                               Government Advocate

                                        For Respondents : Mr. G. Sankaran, Senior Counsel.
                                                           For Mr. S. Nedunchezhiyan


                                                         JUDGMENT

(Delivered by D.Bharatha Chakravarthy, J.)

This Appeal is directed against the order of the Learned Single

Judge, dated 08.01.2020 in W.P.No.368 of 2020, in and by which, the

Writ Petition filed by the respondent-school, challenging the order dated

21.11.2019 of the appellants, refusing to approve the appointment of the

Secondary Grade Teachers, namely, Thiru. A.Kalaimaran and

Tmt. B.Sridevi, was allowed.

2.The admitted case of the parties is that the respondent-school is an

aided middle school. While so, in a sanctioned post of Secondary Grade

Teacher, a vacancy arose due to the retirement of a teacher in the year

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2013. One Thiru. A.Kalaimaran was appointed on 28.4.2014. Similarly,

on account of the retirement of one more teacher in the year 2017, Tmt.

B.Sridevi was appointed as a Secondary Grade Teacher on 13.07.2017.

After their appointments, since no orders were passed approving their

appointments, a writ petition was filed for Mandamus, whereupon, the

appellants were directed to consider the representation of the respondent-

school. Pursuant to such direction, by the order impugned in the writ

petition dated 21.11.2019, the said representation was rejected. Aggrieved

by the same, the present writ petition came to be filed by the respondent-

school.

3.The contention of the respondent-school in the writ petition is that

the individuals have requisite qualifications and they were appointed by

following the due process and are appointed in the sanctioned posts.

Therefore, there is no impediment whatsoever to approving their

appointments. The writ petition was resisted by the appellants on the

ground that Government issued G.O.Ms.No.165 dated 17.09.2019 by

which, it was directed that all the surplus posts throughout the State have

to be bunched together and until such time the surplus teachers are

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absorbed, fresh appointments shall not be made.

4.The Learned Single Judge found that the above mentioned G.O

cannot be given retrospective effect in respect of a sanctioned vacancy and

further found that even the said G.O stood suspended by interim orders of

the Division Bench of this Court and therefore allowed the writ petition as

prayed for. Aggrieved by the same, the present Writ Appeal is filed by the

respondents in the writ petition.

5.Heard Mr.Abisekmurthy, Learned Government Advocate

appearing on behalf of the appellants and Mr.G.Sankaran, Learned Senior

Counsel appearing on behalf of the respondent.

6.Mr. Abishekmurthy, the Learned Government Advocate would

submit that even though it was contended that only on account of

G.O.Ms.165 dated 17.09.2019, the appointments of the teachers made in

the respondent-school could not be approved, the fact remains that as on

date the said G.O.Ms.No.165 stands quashed by a Division Bench of this

Court by a Judgement dated 28.9.2020 in W.P(MD).No.76 of 2019 and

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batch of cases. But, however, as against the said Judgement an Appeal is

pending before the Hon'ble Supreme Court of India. In any event, he would

submit that G.O. Ms.No.165 is not applicable to the present case. Even in

the absence of the above Government Order, the matter is governed by

G.O. Ms. No.49 dated 21.03.2018 which clearly held that right from the

academic year 2013-2014 all the surplus teachers ought to be absorbed by

the common pool and until and unless such surplus teachers are once again

redeployed, fresh appointments cannot be made. Therefore, he would

submit that the learned Single Judge, ought not to have allowed the prayer

of the respondent-school. The Learned Government Advocate would

submit that the appellants have also filed a detailed affidavit clarifying this

position. Therefore, so long as surplus teachers are available for re-

deployment, the appointments cannot be approved. Similarly, he would

submit that the gender ratio has also not been followed by the school, and

therefore, this is also an irregularity committed by the respondent/school.

7.Per contra, Mr. G.Sankaran, Learned Senior Counsel appearing

on behalf of the respondent school submits that not only G.O.Ms.No.169

has been quashed by the Court, already several orders have been passed by

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the Division Benches of this Court in allowing similar prayers, in the

absence of surplus teacher in the same school. He would further submit,

that in respect of the additional affidavit filed, a detailed counter is also

filed explaining as to how G.O.Ms.No.49 is also not applicable to the facts

of this case. He would submit that even in respect of G.O.Ms.No.165, no

interim orders have been granted by the Hon'ble Supreme Court of India.

He would further submit that after being appointed in the year 2014 and

2017, till date both the teachers have been working without salary being

paid to them. He therefore prays that the Writ Appeal be dismissed and the

appellants be directed to pass the consequential orders, within a time

frame.

8.We have considered the rival submissions made on either side and

perused the material records of the case.

9.Even though before the Learned Single Judge arguments were

based on G.O.Ms.No.165, now in the appeal, the said arguments are given

up. As per the additional affidavit filed before this Court, the contention is

that the proposal cannot be approved with reference to G.O.Ms.No.49,

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School Education Department, dated 21.03.2018. In this regard, on a

perusal of G.O.Ms.No.49 dated 21.03.2018, it is clear from paragraph

No.2 that the said G.O. lays down that up to the end of the academic year

2013 – 2014, the surplus staff has to be ascertained on the basis of teacher-

student ratio, and unless and until, such surplus teachers are redeployed,

approval cannot be granted for appointing new teachers.

10.Without going into the details, even as per the said Government

Order, it took into consideration the teacher-student ratio up to the end of

2013-2014. However, the G.O directing for absorption of surplus teachers

was passed only on 21.03.2018. In the meanwhile, when the above said

two teachers, namely, Thiru. A.Kalaimaran and Tmt. B.Sridevi, were

appointed in the year 2014 and 2017 respectively. The appellants cannot

once again take the aid of G.O.Ms.No.49 which is dated 21.03.2018,

retrospectively. Therefore, the original arguments based on the said

G.O.Ms.No.165, and the present arguments based on the said

G.O.Ms.No.49 do not stand scrutiny and accordingly, this Writ Appeal is

without any merits.

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11.In the result,

(i) The Writ Appeal No.295 of 2020 is dismissed;

(ii) The respondent/School, shall implement the order of the Learned

Single Judge at the earliest, in any event not later than two months from the

date of receipt of a copy of this Order, as the concerned teachers are

working without salary for a long number of years;

(iii) There shall be no order as to costs;

(iv) Consequently, the connected miscellaneous petition is closed.

                                                                           (J.N.B,J.)    (D.B.C, J.)
                     Index        : Yes / No                                     05.06.2023
                     Speaking /Non-Speaking Order
                     Neutral Citation : Yes/No

                     klt




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