Madras High Court

The Correspondent vs The Government Of Tamil Nadu on 30 June, 2023

W.P.No.18179 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.06.2023

CORAM:

THE HONOURABLE MR. JUSTICE M.S. RAMESH

W.P.No.18179 of 2023
and
W.M.P.Nos.17380 and 17381 of 2023

The Correspondent,
R.C.Primary School, Valipalayam,
Bhavani Sagar, Erode District 638 402. ... Petitioner

-vs-

1. The Government of Tamil Nadu,
Rep. by its Secretary, Department of Elementary
Education, Fort St. George,
Chennai 600 009.

2. The Director of Elementary Education,
College Road, Chennai 600 006.

3. The District Education Officer,
District Educational Office,
Government Boys Hr. Sec. School Campus,
Vadakkupettai, Sathyamangalam,
Erode 638 401.

4. The Block Educational Officer,
Block Educational Office, Bhavanisagar Range,
Erode 638 459. ... Respondents

PRAYER: Writ Petitions filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus calling for the records
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W.P.No.18179 of 2023

relating to the impugned order passed by the 3rd respondent District
Educational officer in Na.Ka. No. 1840 / A3 / 2022 dated 24.08.2022 ( as
signed) quash the same and further direct the 3rd and 4th respondents to
approve the appointment of Sr.James Parisutha as secondary Grade Teacher
in the Petitioner-school with effect from the date of her appointment viz.
07.06.2017 and release salary and all attendant benefits with effect from
the said date.

For Petitioner : Mr.A.Bisha Isaac
for M/s.Isaac Chambers

For Respondents : Mr.P.Baladhandayutham
Special Government Pleader
for RR 1 to 3

*****

ORDER

By consent of both the parties, this Writ Petition is taken up for final

disposal.

2. The petitioner school is a recognised Christian Minority

Educational Institution. When a vacancy arose owing to the transfer of a

teacher in the School, one Sr.James Parisutha was appointed by the

petitioner school, through an appointment order dated 07.06.2017. On

01.08.2018, the petitioner school herein had submitted a proposal to the https://www.mhc.tn.gov.in/judis

W.P.No.18179 of 2023

third respondent herein / District Educational Officer through the fourth

respondent herein/ Block Educational Officer seeking for approval of the

appointment of Sr.James Parisutha with effect from her date of

appointment. The approval petition has been rejected by the fourth

respondent through the order dated 24.08.2022 on the ground that, since the

group of schools under the Corporate Management to which the petitioner

School is attached, have surplus teachers, the approval to the appointment

of the Sr.James Parisutha, cannot be considered. The petitioner school

challenges this order of rejection in the present Writ Petition.

3. The issue as to whether the Educational Authorities can reject a

proposal of the Management seeking for approval of the appointment of a

teacher in Minority Institution on the ground that there are surplus teachers

either in the District or under the Corporate Management of the School is

no more res integra, since it has been dealt with in various decisions,

against the Authorities.

4. In a batch of Writ Petitions filed before this Court in the case of

The Secretary to Government, Government of Tamil Nadu, School

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W.P.No.18179 of 2023

Education Department and others Vs. Iruthaya Amali and another

reported in 2021 SCC online Madras 1285, the Honourable Division Bench

of this Court had held that for the purpose of fixing the staff strength of the

School, the School as such, shall be the unit and not the Educational

Agencies / School Management / Corporate Management. This finding has

been applied in various other orders in Writ Petitions, whereby, it was held

that the existence of surplus teachers in other Schools under the same

Management, cannot be a ground for rejection of the proposal.

5. In a recent decision taken in a batch of Writ Petitions in

W.P.No.3194 of 2020, etc., dated 18.04.2022 in the case of

B.Kurinjimalaron vs. the State of Tamil Nadu, Represented by its

Secretary, Education Department, Fort St.George, Chennai 600 009, this

aspect was dealt with in the following manner:-

“5. The learned counsel appearing for the petitioners would submit that the G.O.Ms.No.165 dated 17.9.2019 as well as the judgment passed by the Division Bench of this Court in a Batch of Writ Appeals in W.A.(MD) No.76 of 2019 are prospective in nature.

In the present cases, the appointment was made prior to the Government order passed in G.O.Ms.No.165 https://www.mhc.tn.gov.in/judis

W.P.No.18179 of 2023

issued by School Education Department, dated 17.9.2019. Therefore, there is no legal impediment for approving the appointment made by the School Management to the aforesaid posts in the light of the existing Rules thereunder.

6. The learned Additional Advocate General submitted that as against the judgment passed by the Division Bench of this Court in a Batch of Writ Appeals in W.A.(MD) No.76 of 2019, etc., the State Government has preferred an appeal before the Hon'ble Supreme Court in Special Leave to Appeal (C) No.15702 of 2021. It is further submitted that the Hon'ble Supreme Court stayed the judgment only in respect of Clause (i) of paragraph 95 of the said judgment. Further, it is also brought to the notice of this Court that the Division Bench in paragraph 6 of the said judgment, has observed that, ''no fresh appointment even in the sanctioned vacancy shall be made by any school which are managed by the Corporate Management.

7. The learned counsel appearing for the petitioners would submit that in the instant case, no appointment was made by the School Management pursuant to the judgment passed by the Division Bench of this Court. All the appointments were made prior to the issuance of G.O.Ms.No.165 dated 17.9.2019 and the proposals were also sent to the educational https://www.mhc.tn.gov.in/judis

W.P.No.18179 of 2023

authorities prior to the said G.O.Ms.No.165 dated 17.9.2019. Thus, G.O.Ms.No.165 dated 17.9.2019 and the Division Bench judgment will not bind over the appointment made by the School Management in the instant writ petitions. Therefore, the learned counsel appearing for the petitioners seeks to quash the impugned orders and consequently, direct the educational authorities to accord approval to the appointment to the post of B.T. Assistant and Secondary Grade Teacher, made by the School Management in the instant writ petitions.

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 in sofar 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 17.9.2019 and therefore, it can be considered and an appropriate order may be passed.

9. On perusal of the judgment of the Division https://www.mhc.tn.gov.in/judis

W.P.No.18179 of 2023

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 17.9.2019, 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 17.9.2019 and proposals for the said appointment were also forwarded to the educational authorities prior to the issuance of G.O.Ms.No.165 dated 17.9.2019. 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.

10. Having regard to the rival submissions of the parties, taking note of the judgment passed by the Division Bench of this Court in a Batch of Writ Appeals in W.A.(MD) No.76 of 2019, etc., G.O.Ms.No.165 issued by the School Education department, dated 17.9.2019 will not prohibit the educational authorities to approve the appointment made by the School Management in the instant writ petitions since the proposals for approval of appointment made by the School Management were forwarded to the educational authorities prior to the issuance of G.O.Ms.No.165 dated 17.9.2019. Therefore, this Court is of the view https://www.mhc.tn.gov.in/judis

W.P.No.18179 of 2023

that the respondent department without considering the G.O.Ms.No.165 dated 17.9.2019 in proper perspective and passed the impugned order rejecting the proposals submitted by the School Management. Therefore, the impugned orders passed by the respondent department are liable to be quashed.”

6. Thus, the reason assigned by the respondents for rejecting the

proposal, on the ground of availability of surplus teachers under the

Corporate Management of the petitioner's School, cannot be sustained.

7. For all the foregoing reasons, the impugned order passed by the

third respondent herein vide Na.Ka. No. 1840 / A3 / 2022 dated 24.08.2022

is hereby quashed. Consequently, the third respondent herein is called upon

to resubmit the proposal to the first respondent herein and on receipt of

such proposal, the first respondent herein shall pass appropriate orders

approving the appointment of Sr.James Parisutha in the sanctioned post of

Secondary Grade Teacher with effect from 07.06.2017. Such orders shall be

passed, atleast within a period of six weeks from the date of receipt of re-

submission of the proposal.