Madras High Court
State Of Tamil Nadu vs C.Esakkimuthu ... 1St on 21 September, 2023
W.A.(MD) No.1557 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.1557 of 2023
and
C.M.P.(MD)No.12063 of 2023
1.State of Tamil Nadu
Rep. by its Principal Secretary,
Department of School Education,
Fort St. George, Chennai-600 006.
2.The Commissioner of School Education,
DPI Campus, Chennai-5.
3.The Chief Educational Officer,
Office of the Chief Educational Officer,
Thoothukudi District.
4.The District Educational Officer,
Office of the District Educational Officer,
Tiruchendur, Thoothukudi District.
... Appellants/Respondents 1 to 4
-vs-
1.C.Esakkimuthu ... 1st Respondent/Writ Petitioner
2.S.Shunmugasundara Nadar Higher Secondary School,
Rep. by its Secretary,
Authoor-628 151,
Thoothukudi District. ... 2nd Respondent/5th Respondent
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W.A.(MD) No.1557 of 2023
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent to set
aside the order, dated 02.09.2023 made in W.P.(MD)No.4384 of 2022 on the
file of this Court.
For Appellants : Mr.D.Sadiq Raja
Additional Government Pleader
For R1 : Mr.S.Rajasekar
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
This Writ Appeal is directed against the order of the learned Single
Judge dated 02.09.2022 made in W.P.(MD)No.4384 of 2022 in and by which,
the learned Single Judge allowed the writ petition filed by the first respondent.
2. In the said writ petition, the first respondent/writ petitioner had
challenged the order of the appellants, dated 10.02.2022 refusing to approve
his appointment as B.T. Assistant (Science) as against the sanctioned aided
post in the second respondent school.
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3. The brief facts leading to the filing of the writ appeal are that the
second respondent in the appeal is an Aided Non-minority School. In the year
2019, one K.S.Murugan holding the post of B.T. Assistant (Science) voluntarily
retired from service. The second respondent school sought the permission of
the appellants to fill up the resultant vacancy and by an order dated
29.01.2019 permission was granted. Accordingly, after due selection, the first
respondent was appointed as B.T. Assistant (Science) with effect from
05.03.2019 and the proposal was immediately sent for approval thereof. The
proposal was returned by an endorsement dated 10.03.2019 and was again
re-presented. Thereupon the order impugned in the writ petition dated
10.02.2022 was passed thereby refusing to approve the appointment of the
first respondent. The relevant portion of the impugned order reads as follows:
“NkYk; cghpg; gzpaplq;fs; rhh;ghfTk; ,J rhh;ghd tof;F
WA(MD)No.76 of 2019-y; toq;fg;gl;l 31.03.2021 jPh;g;GiugbAk;> murpd;
njspTiufs; ngwhj epiyapYk; ,f;fUj;JUtpidg; ghpe;Jiu
nra;a ,ayhJ vd;w tpguk; gs;spr;nrayUf;Fj; njhptpf;fg;gLfpwJ.”
4. Challenging the same, the above writ petition was filed. The learned
Single Judge considered the case along with the batch of writ petitions and
allowed the writ petition by directing approval of appointment by considering
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W.A.(MD) No.1557 of 2023
the issue of redeployment of the surplus teachers and held that in view of the
judgment of this Court in L.Princeton Fernando Vs. The State of Tamil
Nadu, Department of Higher Education and Others1, the stand of the
appellants that approval cannot be granted till redeployment of the surplus
teachers in the District cannot be sustained. Aggrieved by the same, the
present writ appeal is filed.
5. Mr.D.Sadiq Raja, the learned Additional Government Pleader taking
this Court through the impugned order would submit that it can be seen from
the impugned order that the appointment was refused to be approved only
because of the judgment in Iruthaya Amali's case2. The Hon'ble Division
Bench of this Court in Iruthaya Amali's case has categorically considered
the questions regarding surplus teachers. It has held inter alia that it is the
school as such will be taken as a unit and not the corporate management for
the purpose of determining whether the teaching post is in surplus. Secondly,
it is also categorically held that so long as there is a surplus in the district,
unless and until such surplus teachers are redeployed and exhausted, no
appointment can be made by the schools. Eventhough a Special Leave Petition
is preferred by the Government against the Division Bench regarding various
2 (2021) SCC Online Mad 1285
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W.A.(MD) No.1557 of 2023
other questions and the same is pending and the judgment is stayed only in
respect of paragraph 95(i) which is relating to the grant for additional staff
employed in the aided schools and in other respects as on date the ratio of the
said judgment governs the field. Therefore, he would submit that when
surplus teachers in the cadre of B.T. Assistants (Science) 14 in number were
available in the district as on date of the appointment, there was no question
of any approval.
6. Mr. Sadiq Raja, would further submit that the appointment of the writ
petitioner was made on 05.03.2021 and thereafter, on 10.04.2019, the Hon'ble
Division Bench of this Court had in fact granted an interim order restraining
the appellants/respondents from approving any appointment pending disposal
of the batch of appeals and ultimately by the judgment dated 31.03.2021 held
that the district surplus teachers have to be redeployed and as such the said
judgment even though is on 31.03.2021 has to be applied to the instant case.
Before the approval is granted to the writ petitioner, the judgment has come
into force, the same would have to be applied retrospectively and would affect
all the pending proceedings. Therefore, he would submit that the order of the
learned Single Judge requires interference.
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7. Per contra Mr.S.Rajasekar, the learned counsel for the first
respondent would submit that the judgment of the Hon'ble Division Bench of
this Court in Iruthaya Amali's case came into force only on 31.03.2021,
whereas the appointment of the writ petitioner was on 05.03.2019. The
appointment was even prior to the interim order granted by the said Division
Bench. As a matter of fact, earlier to the said judgment, the Government has
passed G.O.Ms.No.165, dated 17.09.2019 and this Court had in a catena of
judgments considered that only after passing of the said G.O., the district
surplus can be taken into account and prior to the said Government Order,
the district surplus cannot be shown a a reason for refusing approval.
8. The learned counsel would rely upon the judgment of this Court in
The Director of School Education and Others Vs. Ms.N.Prathiba and
another3, wherein this Court has held that if an appointment is made prior to
the coming into force G.O.Ms.No.165, then the first respondent cannot deny
approval of the appointment. Further, the learned counsel would submit that
the position as to district surplus, was made clear only after the final
judgment in Iruthaya Amali's case dated 31.03.2021 and as far as the
appointments made prior to the judgment, the appellants themselves have
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W.A.(MD) No.1557 of 2023
taken a categorical stand that the judgment will not apply to the earlier
appointments in an earlier proceedings in W.P.(MD)No.3194 of 20210 etc.,
batch, before the learned Single Judge of this Court and therefore, having
taken such a stand and batch of writ petitions being allowed pursuant to the
said stand taken by the Government, in the case of the present writ petitioner
alone, a contra stand cannot be taken.
9. The learned counsel appearing for the first respondent would further
rely upon the judgment of this Court in State of Tamil Nadu and 3 others
Vs. The Correspondent, ST. John Vianney's Girls Higher Secondary
School, Palliyadi, Kanayakumari District4 to contend that even though in
the said case, the Government had pleaded that there were 311 surplus B.T
Assistants in Kanniyakumari Dsitrict, still the Hon'ble Division Bench of this
Court considered the Iruthaya Amali's case and the fact that the special
leave petition pending and still held that the availability of the surplus
teachers in the district cannot be a ground to reject the approval of the
appointment. Therefore, he would submit that this Court need not interfere
with the Order of the learned Single Judge.
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10. We have considered the rival submissions made on either side and
perused the material records of the case. The question which arises for
consideration is :
“Whether in ratio in Irudaya Amali's case, that schools cannot make
an appointment until the district surplus is exhausted, has to be
applied to the appointments made prior to the decision of the said
case ?”
11. There is no quarrel over the proposition that the questions as to
whether the school should be taken as a unit or the educational agency as
such should be taken as the unit for determining the surplus teachers and
whether if the surplus teachers are available in the district, appointments can
be made, have been considered in detail by the Hon'ble Division Bench of this
Court in Iruthaya Amali's case. It is also not in dispute that after detailed
consideration of the issue, the Hon'ble Division Bench of this Court has held
that only the concerned school alone and not the education agency should be
taken as a unit while determining the surplus and that until the surplus
teachers available in the district are redeployed, no appointment can be made
by the aided schools. The said judgment came to be delivered on 31.03.2021.
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12. It cannot also be disputed that any judgment is retrospective unless
it is rendered prospective. Useful reference can be made in this regard to the
Judgment of the Hon'ble Supreme Court of India in Assistant Commissioner
of Income Tax, Rajkot -Vs- Saurashtra Kutch Stock Exchange Limited5 to
paragraphs 35 -37.
13. As a matter of fact, the conclusions/directions are made in
Iruthaya Amali's case :
“95. In view of the aforesaid discussions, we are inclined to pass
the following orders in this batch of cases :
"(a) For the purpose of fixing the students-teacher ratio, the
provisions of RTE Act followed by the G.O. passed in this regard
shall be taken as the basis and the student pupil ratio shall be
either 1:30 or 1:35 as the case may be as per the provisions of RTE
Act.
(b) For the purpose of fixing the staff strength of a school,
school shall be the unit and not the Educational agency / joint
management / corporate management.
(c) Once the staff strength is fixed in a particular academic year
of a school, it is the duty of the Educational authorities to identify
the excess staff and once the excess staff are identified, the same
shall be intimated to the school concerned as per the compendium of
schedule and thereafter, take steps to redeploy those excess staff to
5 (2008) 14 SCC 171
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W.A.(MD) No.1557 of 2023
the needy school.
(d) Once the excess staff are identified and after keeping the
Institution intimated, if those excess staff are redeployed to the
needy school within a stipulated time as per the compendium of
schedule, the redeployed staff shall join duty in the redeployed
school.
(e) The following compendium of schedule, for the aforesaid
purpose, i.e., for fixing the teaching staff, identifying the excess
teaching staff and to redeploy the identified excess teaching staff to
the needy school, are framed as hereunder.
(f) COMPENDIUM OF SCHEDULE :
(i) Closing of Admission for the purpose of
fixation of staff strength - 31st July of that
academic year.
(ii) Fixation of staff strength of the school concerned,
based on the student strength as on 31st July as per the
strength of the pupil updated in the EMIS - 10th August.
(iii) The aforesaid fixation of staff strength of the
school shall be intimated to the school on or before 15th
August.
(iv) On receipt of information from the Department,
the School concerned shall give its objection if any, based
on the teacher-pupil ratio on such fixation of staff strength
by 25th of August.
(v) On receipt of such objection, if any, from the
school concerned, the final order of fixing the staff
strength of the school, with the provisional order for
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W.A.(MD) No.1557 of 2023
identification and redeployment of excess staff shall be
passed by the Department by 5th of September.
(vi) On receipt of such intimation of provisional order
on identification and redeployment of excess staff, the
school under corporate or joint management, shall act
upon to give its consent to the redeployment of excess
teacher concerned after keeping the teacher informed, to
the Department, by 15th of September.
(vii) On receipt of such reply / intimation from the
school concerned, final redeployment order shall be made
and communicated to the school from where redeployment
is made with a copy marked to the teacher concerned and
also to the needy school to which the deployment is to be
made, by 25th September.
(viii) On receipt of such orders by the teachers who
are redeployed, they shall report to the school where they
have been redeployed, on or before 30th September.
(ix) After making this redeployment process, still
excess staff are available, the Education Department shall
take further effort, and those excess teachers still
available at the hands of the Education Department to be
redeployed to a needy school beyond the corporate
management concerned, i.e., to any school located in the
same Educational District or Revenue District and even
beyond which if still excess staff are available, they can
be redeployed to any school beyond the Revenue District
of course after getting the choice of such teacher
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concerned and that shall be completed by 10th October.
(x) Those teachers who got such redeployment
within the Revenue District or beyond the Revenue District
by orders to be issued on or before 10th of October, shall
report duty to the School where they have been redeployed
on or before 15th of October.
(xi) It is made clear that beyond 15th October of
every academic year, no redeployment of teacher shall be
made or given effect to.
(g) Once the teachers are redeployed from a particular
school, after the joining time as provided under the compendium
of schedule, the school from which the teacher has been
redeployed cannot get teaching aid for the next month salary for
that redeployed teacher and that salary shall be paid only
through the school, where the teacher has been redeployed, for
which, teaching grant shall be sent by the Educational
authorities only to the needy school, where the teacher has
already been redeployed.
(h) While identifying the excess staff for redeployment
purpose as indicated above, regard has to be given that as far as
possible junior most teacher shall be subjected to such
redeployment. Also in case of high and higher secondary
schools, while making such redeployment based on teacher-pupil
ratio, regard has to be given to ensure that, atleast the minimum
required teacher, for each subject being taught in the school, are
in possession.
(i) Insofar as the teaching grant for the additional staff
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employed in the already aided school as on the academic year
1991-92, irrespective of the medium of instructions or
irrespective of the students strength, as per the teacher pupil
ratio as indicated above especially in the context of RTE Act and
subsequent G.O issued in this regard, the staff fixation shall be
made and for those additional teaching staff, who are pressed
into service for additional standard or additional class started,
from the academic year 2021-22, staff grant shall be sanctioned
by the State Government as such sanctioning of staff grant will
be the essential requirement to meet the object of the provisions
of the RTE Act, otherwise, the Fundamental Right guaranteed to
the children between the age of 6 and 14 studying in those
schools would get affected.
(j) Irrespective of the medium of instruction, whether Tamil or
English, such a staff grant for additional sections or standard
shall be provided with the same condition as indicated above
from the academic year 2021-22.
(k) The State Government shall ensure that, the provisions of
the Tamil Nadu Tamil Learning Act, 2006 are implemented in
letter and spirit, of course subject to the judicial orders / court
orders, if any, passed in this regard for giving exemption to a
group or class of students as provided under Section 5 of the
said Act.
(l) Until the Tamil Nadu Private Schools (Regulation) Act,
2018 and the Rules to be made thereunder are given effect to,
these set of directions issued in this order shall mandatorily be
followed by the stakeholders, i.e., both State Government as well
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W.A.(MD) No.1557 of 2023
as the Educational Institutions.
(m) Once the 2018 Act and the Rules to be made in this
regard comes into effect and the issues which are covered under
this order as per these mandatory directions are taken care,
these mandatory directions shall be ceased to be in execution.
(n) In order to give effect to such comprehensive legislation,
i.e., 2018 Act, the work of framing necessary Rules under the
Act shall be completed as early as possible.
(o) In view of the aforesaid, the G.O.Ms.No.165, School
Education [Tho.Ka.2(1)] Department, dated 17.09.2019 is hereby
declared to be inoperative.
(p) In view of the statistics given by the communication of the
Director of School Education and Director of Elementary
Education, dated 28.10.2020, as the import of the same in
entirety has already been quoted herein above, the Education
Department shall take endeavour to identify the exact excess
teaching staff in various category of Schools, i.e., Government
schools (Panchayat Union, Municipality and Corporation) Primary
and Middle Schools, Government aided primary and middle
schools, Government High and Higher secondary schools and
aided High and Higher Secondary Schools separately by taking
into account the recent policy decision taken by the State
Government, whereby the superannuation age of the
Government servants including the teachers was enhanced from
59 to 60, thereby there would be no superannuation of teachers
for the next one year and accordingly, the correct statistics shall
be made ready within a period of two months.
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(q) Once the statistics of excess teaching staff under various
category of schools as referred to above are made by taking into
account the superannuation age of teachers, batch as 60, such
excess teaching staff identified in various category of schools
with details of name of the school both Government as well as
Private aided, shall be uploaded in the website / web portal of
the School Education Department within the aforestated period of
two months.
(r) Once such information are uploaded in the web portal by
the Education Department, after verifying the same, the private
aided schools, both minority and non-minority can point out any
wrong information if given with regard to the identification of the
excess teaching staff in the concerned school and such
intimation or clarification can be given by the school concerned
through the management to the DEO / CEO concerned within a
period of one month thereafter.
(s) On receipt of such objections, information / clarification
from the school concerned with regard to the alleged wrong
information provided by the State Government / Education
Department in the web portal as indicated above, the same shall
be verified and rectified by the Education Department, within one
month thereafter.
(t) This exercise shall be completed on or before 31st July
2021, so that the identification of excess staff and follow up
action as indicated in the compendium of schedule herein above
can be undertaken and be followed strictly.
(u) Till such excess teaching staff are identified under all
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category of schools as indicated above, no recruitment shall be
made by the State Government / Education Department for the
purpose of appointment of teachers under various categories like
Secondary grade teacher, Graduate teacher, Post-Graduate
teacher, Language teacher, Physical education teacher etc.,
(v) Like that insofar as aided minority institutions are
concerned,if it is a stand alone institution, their right of
appointing a teacher in a vacancy within the sanctioned strength
for the academic year 2021-22 shall not be affected because of
the identified excess teachers in other schools. At the same time,
even if the school is a minority institution, however being
administered by a joint management or corporate management,
in respect of those schools, even though vacancy arose within
the sanctioned strength of such school or schools under
corporate management or joint management, those vacancies
shall not be filled up unless the excess staff identified in all
other schools under the same corporate or joint management are
exhausted fully and only after exhausting the redeployment
process on all excess teachers identified in the group of schools
under the same corporate management, they shall be free to
make appointment afresh from open market in the vacancy if any
still, within the sanctioned strength."
14. A reading of the above directions in toto, it would be clear that first,
the staff strength of a particular academic year has to be fixed and it shall be
the duty of the authorities to identify the excess staff by taking into account
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the school as a unit. The excess staff have to be identified after keeping the
institutions intimated. A Compendium of Schedule is prescribed by the
judgment as follows: to fix the staff strength by 31 st July of the academic year;
updating of the staff strength by 10th August of the academic year; intimation
to the school by 15th August; submission of objections if any by 25th August;
consideration of objections and identification of the staff for redeployment to
be made by 5th September; to obtain the consent for redeployment by 15 th
September; to make the order of redeployment by 25th September; and that the
teacher should report before the redeployed school by 30 th September. The
Hon'ble Division Bench further directed framing of Rules under the Tamil
Nadu Recognized Private Schools (Regulation) Act, 1973 to give effect to the
set of directions. In view of these directions fixing a Compendium of Schedule
and directing framing of Rules, the Hon'ble Division Bench of this Court
declared G.O.Ms.No.165 as inoperative. Further, the Hon'ble Division Bench of
this Court directed the identification of vacancies by taking retirement age as
60 and uploading in the web portal as to the staff strength and that the said
exercise was ordered to be completed by 31.07.2021 and till such exercise is
completed, it was ordered that no recruitment shall be made by the
managements. Thus, the said exercise impossible to be carried out now
retrospectively for the year 2019.
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15. Because of the above position, even though an interim order was
granted on 10.04.2019 pending the above decision not to approve the
appointments, the Division Bench had not negated or stated anything about
the fate of those appointments of which approvals were pending. It is to be
seen that the earlier interim order given by another Coordinate Bench was
also nullified and the G.O.Ms.No.165 which was issued pursuant to the earlier
order was also expressly declared to be inoperative.
16. The Hon'ble Division Bench was consciously did not nullify the
appointments made earlier since it establishes a new norm to prevent
administrative chaos and even directs framing of rules and it is not a simple
case of upturning an earlier decision or ruling, by which it can be applied
retrospectively to all pending cases. The findings of the Division Bench and
the directions given depend on each other and without following the
compendium of schedule, information of the school, etc, in isolation, the
appointment which was made even prior to the interim order by the Hon'ble
Division bench cannot be construed as having been affected by the judgment
in Iruthaya Amali's case.
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17. More so, whether the appointment which is made pursuant to an
express permission can be refused approval or not was also not an issue in
Irudaya Amali's case and thus would result in a great hardship and undue
prejudice by applying the ratio to the a case where the appointment itself was
made after express permission. Accordingly, we hold that the appointment of
the writ petitioner cannot be refused citing the directions given in Iruthaya
Amali's case. As a matter of fact even in the impugned order, the
appellants/respondents were not clear as to whether Iruthaya Amali's case
is applicable or not and that in view of the pronouncement since the
Government has not come clear with the clarification they are not approving.
Further, it can be seen that there was no redeployment of any teacher at all to
the second respondent school and on the contrary, the appellants gave
express permission for the second respondent school to fill up the vacancy.
18. The impossibility of retrospective or retro active application of
directions in a Judgment has been considered by the Hon'ble Supreme Court
of India in Goan Real Estate Construction Limited and Another -Vs- Union
of India6 and it is specifically held in paragraph 31 that the Judgment should
be read in the context and its entirety and the observations should not be
6 (2010) 5 SCC 388
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applied out of context. In paragraph 39 it is held that the nature of directions
should be considered to give prospective effect. In paragraph 34 it is held that
whenever a new norm is established the ability to retrospectively effectuate the
new rule should be considered. Thus, applying the dictum, it can be seen that
the Division Bench had consciously did not nullify the appointments pending
approval.
19. For all the foregoing reasons, we are unable to accept the
contentions raised by the learned Additional Government Pleader. For the
reasons stated supra, we uphold the ultimate conclusion arrived at by the
learned Single Judge that the appellants are liable to approve the
appointment of the first respondent.
20. In view thereof, the Writ Appeal shall stand dismissed. The
appellants shall grant the approval as directed by the learned Single Judge
within a period of one month from the date of receipt of a copy of this order.
No costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
21.09.2023
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NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
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W.A.(MD) No.1557 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
W.A.(MD) No.1557 of 2023
and
C.M.P.(MD)No.12063 of 2023
21.09.2023
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