Madras High Court
The Commissioner Of School ... vs Aided Muslim Committee Primary ... on 23 June, 2023
W.A.(MD)No.2119 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.2119 of 2021
and
C.M.P.(MD)No.9878 of 2021
1.The Commissioner of School Education,
O/o. The Commissioner of School Education Department,
College Road, Chennai-6.
2.The Director of Elementary Education,
O/o.The Director of Elementary Education,
D.P.I.Complex, Chennai-6.
3.The District Educational Officer,
O/o. The District Educational Officer,
Cheranmahadevi, Ambasamudram Taluk,
Tirunelveli District.
4.The Block Educational Officer,
O/o. The Block Educational Officer,
Ambasamudram Taluk,
Tirunelveli District. ... Appellants / Respondents
Vs.
Aided Muslim Committee Primary School,
Rep. by its Correspondent,
S.Sheik Shajakhan Sithik ... Respondent / Writ Petitioner
1/7
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.2119 of 2021
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying this
Court to set aside the order dated 08.07.2021 made in W.P.(MD)No.11363
of 2021 on the file of this Court.
For Appellants : Mr.A.Kannan,
Additional Government Pleader
For Respondent : Mr.H.Mohammed Imran,
For M/s.Ajmal Associates
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
The respondent School is a minority run institution, where a
Secondary Grade Teacher post became vacant, which is in fact a sanctioned
post, where an eligible teacher has been appointed.
2.The said appointment was made on 03.07.2018 and thereafter, it
was sent to the authorities concerned for approval.
3.However, the authorities had not approved the same on the
ground that G.O.Ms.No.165, dated 17.09.2019 has been issued by the
School Education Department, under which unless excess teachers are
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W.A.(MD)No.2119 of 2021
deployed properly, no new appointment could be made and if anything is
made, that cannot be approved. Challenging the same, the respondent
School approached the Writ Court and filed W.P.(MD)No.11363 of 2021,
which was allowed by the learned Single Judge of the Writ Court vide order
dated 08.07.2021, which is impugned herein.
4.Though the submissions were made by the learned Additional
Government Pleader for the appellants that the issue with regard to the
deployment of excess teacher is still lingering and in this context, even
though judgments have been made by more than one Division Bench of this
Court, the issue is ultimately pending before the Hon'ble Supreme Court of
India. Therefore, at this juncture the order passed by the Writ Court through
the impugned order whether can be implemented is a question.
5.However, the learned counsel for the respondent School has
submitted that insofar as the issuance of G.O.Ms.No.165, is concerned, first
of all, the said G.O., has already been declared by a Division Bench of this
Court in W.A.(MD)No.76 of 2019, etc., batch vide order dated 31.03.2021
as inoperative. This has been taken note of by the learned Single Judge.
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W.A.(MD)No.2119 of 2021
6.Even though an appeal has been filed by way of S.L.P., against
the said judgment dated 31.03.2021, only Clause (i) of paragraph 95, where
a direction was given with regard to the grant alone, was stayed by the
Hon'ble Supreme Court and in respect of other aspects, there has been no
stay. This has been in fact accepted on behalf of the appellant Department
in a similar issue when came up before the learned Single Judge in a batch
of cases on 18.04.2022 in W.P.Nos.3194 of 2020 etc., batch, where the
following stand was taken by the appellant Department and that has been
recorded by the learned Single Judge:-
“8.According to the learned Additional Advocate
General, the State Government has preferred an appeal before
the Hon'ble Supreme Court in Special Leave to Appeal (C)No.
15702 of 2021 as against the judgment passed by the Division
Bench of this Court in the Batch of Writ Appeals in W.A.
(MD)No.76 of 2019, etc., and obtained stay insofar as Clause (i)
of paragraph 95 of the said judgment. Except the aforesaid
clause (i) of paragraph 95, there was no stay in respect of
remaining portion of the judgment. It is agreed by the learned
Additional Advocate General that the writ petitioners were
appointed prior to the G.O.Ms.No.165, dated 17.09.2019 and
therefore, it can be considered and an appropriate order may be
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W.A.(MD)No.2119 of 2021
passed.
9.On perusal of the judgment of the Division Bench of
this Court in the aforesaid Batch of cases and also the
G.O.Ms.No.165 issued by the School Education Department,
dated 17.09.2019, both the judgment as well as G.O.Ms.No.165
are prospective in nature. The appointments made by the School
Management in the instant writ petitions are prior to the
issuance of G.O.Ms.No.165 dated 17.09.2019 and proposals for
the said appointment were also forwarded to the educational
authorities prior to the issuance of G.O.Ms.No.165 dated
17.09.2019. Therefore, there is no legal impediments for the
respondents to accord approval to the appointment made by the
School Management in the instant writ petitions.”
7.his position cannot be controverted by the learned Additional
Government Pleader for the appellants and admittedly, there has been no
appeal.
8.Moreover, the said G.O., was issued only on 17.09.2019,
whereas the teacher was appointed well before the issuance of the said G.O.,
ie., 03.07.2018. Therefore, assuming if the said G.O., ultimately would be
declared to be valid, that will have a prospective effect. Moreover, as on
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W.A.(MD)No.2119 of 2021
today, the said G.O., is no more available to the appellant department to say
the reason that by virtue of G.O.Ms.No.165, the appointment made in
respect of the teacher concerned at the 1st respondent school cannot be
approved.
9.In that view of the matter, we have no hesitation to hold that the
order impugned passed by the learned Single Judge is perfectly valid and
therefore, it is to be sustained. In the result, this Writ Appeal fails,
therefore, it is to be dismissed, accordingly, it is dismissed. As a sequel,
there shall be a direction to the appellant Department to approve the
appointment of the teacher concerned in the 1st respondent School and
extend all service benefits from the date of such appointment to the teacher
concerned within a period of six weeks from the date of receipt of a copy of
this order. No costs. Consequently, connected miscellaneous petition is
closed.
(R.S.K., J.) & (K.K.R.K, J.)
23.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
MYR
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.2119 of 2021
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
MYR
W.A.(MD)No.2119 of 2021
23.06.2023
https://www.mhc.tn.gov.in/judis
