Madras High Court
Jp Allwin Nicholas Jesudoss vs The District Educational Officer on 22 November, 2023
Author: M.S.Ramesh
Bench: M.S. Ramesh
W.P.No.6334 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.No.6334 of 2022
and W.M.P.Nos.6434 & 6436 of 2022
JP Allwin Nicholas Jesudoss ... Petitioner
Vs.
1.The District Educational Officer,
Thiruvannamalai.
2.The Chief Educational Officer,
Thiruvannamalai.
3.The Secretary,
Arcot Lutheran Church,
ALC Central Office,
No.9, ALC Campus,
Cuddalore – 697 001.
4.The Correspondent,
Danish Mission Higher Secondary School,
Thiruvannamalai.
5.Mrs.W. Beulah ... Respondents
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1/10
W.P.No.6334 of 2022
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, calling for the records
of the 1st respondent vide Na.Ka.No.9314/A2/2019 dated 9.9.2021 and
quash the same and consequently direct the 1st and 2nd respondents herein
to approve the appointment of the petitioner, in terms of the 3rd
respondent's letter vide S/455/2016-19 dated 20.11.2017.
For Petitioner : Mr.Bhagavath Krishnnan
For R1 & R2 : Mr.V. Manoharan,
Additional Government Pleader
For R3 : M/s.Aishwarya & Nathan
For R4 : No appearance
For R5 : Mr.S. Nedunchezhiyan
ORDER
Heard the learned counsel for the petitioner, learned Additional
Government Pleader for the respondents 1 & 2, learned counsel for 3rd
respondent, as well as learned counsel for 5th respondent. There is no
representation on behalf of 4th respondent.
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2. The fourth respondent herein is a Minority Educational
Institution, in which, as per the staff fixation done in the year 2017-2018,
3 posts of Office Assistant were sanctioned for the School. When one of
the Office Assistant namely Solomon had retired, the vacancy was filled
up by the appointment of the fifth respondent herein. When the approval
for such an appointment was not granted to the fifth respondent, she had
approached this Court and by an order dated 15.12.2021 passed in
WP.No.3324 of 2020, the authorities were directed to grant approval to
the fifth respondent. In the said order, the learned Single Judge had
rejected the contention of the Government that in G.O.Ms.No.238, School
Education Department dated 13.11.2018, the Government had reduced
the sanctioned posts of Office Assistant from 3 to 2 and held that the said
Government Order will only have a prospective effect and that the fifth
respondent was appointed on 01.09.2018, which is prior to
G.O.Ms.No.238 dated 13.11.2018. The aforesaid order reads as follows:-
..... “9. From the above extracted judgments, it is
clear that the proposal which was mooted and
initiated prior to issuance of the said G.O.Ms.No.238,
dated 13.11.2019, (School Education Department),
cannot be covered under the said G.O. and this Court
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allowed similar claims either at the instance of the
employee concerned or by the School which sought
approval for the appointments in the sanctioned
vacancies.
10. As the present batch of the Writ Petitions, is
covered by the above orders passed in Writ
Petitions/Writ Appeals and factually established that
the appointments in question had taken place much
prior to issuance of G.O.Ms.No.238, dated 13.11.2019
(School Education Department), the non-grant of
approval by relying upon the said G.O., cannot be
countenanced both in law and on facts.
11. Further, if the impugned rejection order is
passed on the basis of the said G.O.Ms.No.238, the
respective impugned rejection orders passed by the
educational authorities, are hereby set aside and the
concerned educational authorities are directed to
consider the proposal seeking approval to the
respective appointments without reference to the said
G.O.Ms.No.238, if such appointments were otherwise
in order.
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12. The educational authorities are directed to
pass appropriate orders in respect of each of the
proposals pending consideration, within a period of
four weeks from the date of receipt of a copy of this
order, or on production of a web-copy of this order,
whichever is earlier. On approval of the appointments,
it is hereby clarified that, the staff concerned will be
entitled to all consequential and attendant benefits,
including the arrears of salary and allowances, as
admissible.....”
(Emphasis supplied)
3. The aforesaid extract is self explanatory. In the present case, the
petitioner herein was appointed to the post of Office Assistant on
20.11.2017 in the vacancy that arose owing to the retirement of one
Kanagaraj. The School's proposals to approve the appointment of the
petitioner herein have been rejected stating that in view of the orders
passed by this Court, the fifth respondent's appointment have already
been approved and therefore, the appointment of the petitioner cannot be
considered.
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4. The fact that 3 posts of Office Assistant were sanctioned to the
fourth respondent/School for the year 2017-2018 and the petitioner
having been appointed in a sanctioned vacancy on 20.11.2017, is not in
dispute. The only objection that seems to be raised by the first and
second respondents is that there are only 2 sanctioned vacancies in view
of G.O.Ms.No.238 dated 13.11.2018 and since the fifth respondent has
already been appointed in one of vacancies pursuant to the orders of this
Court, the approval of the petitioner's appointment cannot be considered.
5. When similar objection was raised that when the fifth
respondent herein had sought for a direction for approval of her
appointment, this Court had held that G.O.Ms.No.238 dated 13.11.2018,
will only have a prospective effect and therefore, the appointment of the
fifth respondent in 1 vacancy among 3 sanctioned posts prior to
G.O.Ms.No.238, is legally sustainable. The same analogy will also apply
to the petitioner herein, who was appointed on 20.11.2017, which is prior
to G.O.Ms.No.238 dated 13.11.2018.
6. This apart, merely because the fifth respondent herein was
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appointed through orders of this Court, it does not mean that all the
incumbents of the sanctioned vacancy have to approach the Court to
obtain orders for the purpose of directing the authorities to grant
approval. When it is well established that there was a sanctioned post in
the year 2017 when the petitioner was appointed, there cannot be any
impediment on the part of the first and second respondents in filling up
the post and the rejection of the sanctioned post through G.O.Ms.No.238
dated 13.11.2018, will have no bearing on his appointment. Thus, the
reasoning adopted by the first respondent in the impugned order, cannot
be sustained.
7. At this juncture, the learned counsel for the petitioner submitted
that even assuming the sanctioned posts as 2, apart from the fifth
respondent herein, one Raja, who was also an approved appointee to the
post of Office Assistant, had expired on 22.04.2023. If that be so, the
petitioner would be entitled for orders of approval in view of the fact that
one post of Office Assistant is now vacant on the death of the said Raja.
8. In the result, the Writ Petition stands allowed and the impugned
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order dated 09.09.2021 passed in Na.Ka.No.9314/A2/2019 by the first
respondent is quashed. Consequently, there shall be a direction to the
first and second respondents, to pass appropriate orders, approving the
appointment of the petitioner with effect from 20.11.2017 and thereby,
disburse all the salaries payable to the petitioner. Such order shall be
passed, at least within a period of eight (8) weeks from the date of receipt
of a copy of this order. No costs. Connected miscellaneous petitions are
closed.
22.11.2023
Speaking/Non-speaking Order
Index: Yes/No
Internet: Yes/No
Neutral Citation: Yes/No
Sni
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To
1.The District Educational Officer,
Thiruvannamalai.
2.The Chief Educational Officer,
Thiruvannamalai.
3.The Secretary,
Arcot Lutheran Church,
ALC Central Office,
No.9, ALC Campus,
Cuddalore – 697 001.
4.The Correspondent,
Danish Mission Higher Secondary School,
Thiruvannamalai.
https://www.mhc.tn.gov.in/judis
M.S.RAMESH,J.
Sni
22.11.2023
https://www.mhc.tn.gov.in/judis
