Madras High Court
Manager & Correspondent vs The State Tamil Nadu on 26 September, 2023
W.P.No.27910 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P.No.27910 of 2021
and WMP.No.29461 of 2021
Manager & Correspondent
Nusrathul Islam Aided Primary School
Peranambut – 635 810. ... Petitioner
Vs.
1. The State Tamil Nadu
Rep. By its Secretary to Government
Education Department, Chennai – 9
2. The Director of Elementary Education,
D.P.I. Buildings, College Road,
Chennai – 600 006.
3. The District Educational Officer,
Vaniyambadi,
Thirpattur District.
4. The Block Educational Officer,
Peranambut Range,
Peranambut. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of
India, seeking Writ of Certiorarified Mandamus to call for the entire records
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W.P.No.27910 of 2021
connected with the impugned order passed by 4th respondent vide
A.Thi.Mu.No.199/A1/2019, dated 10.03.2020 and quash the same and
consequently direct the respondents to approve the appointment of
Tmt.Shabana Begum as Secondary Grade Teacher in the petitioner school with
effect from 01.12.2019 with all consequential monetary benefits in the light of
the order passed in W.P.No.3189 of 2020 dated 26.02.2020.
For Petitioner : Mr.R.D.Ashok Kumar
For Respondents : Mr.T.Chezhiyan
Additional Government Pleader
ORDER
The petitioner has filed the above writ petition praying for a Writ of
Certiorarified Mandamus to call for the entire records connected with the
impugned order passed by 4th respondent vide A.Thi.Mu.No.199/A1/2019,
dated 10.03.2020 and quash the same and consequently direct the respondents
to approve the appointment of Tmt.Shabana Begum as Secondary Grade
Teacher in the petitioner school with effect from 01.12.2019 with all
consequential monetary benefits in the light of the order passed in
W.P.No.3189 of 2020 dated 26.02.2020.
2. The learned counsel for the petitioner submitted that the petitioner
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W.P.No.27910 of 2021
school is a Linguistic and as well as religious minority institution started way
back in the year 1967, with noble object to cater the education to the needy and
poor downtrodden people in and around Vaniyambadi and got permanent
recognition from the Government with effect from 01.06.1995 and continues to
be a primary school imparting education in Urdu Medium. The school is
governed by certain provisions of Tamil Nadu (Recognised) Private Schools
(Regulations) Act, 1973 and various other Government orders issued from time
to time and as on date the school has around 941 students studying from 1st to
Vth standard with 1 Headmaster, 16 Secondary Grade Teacher, one teacher
under Regional Language Teacher (RLT) and a Music Teacher.
3. The learned counsel for the petitioner further submitted that the
vacancy arose for the post of Secondary Grade Assistant on 01.12.2019, due to
retirement of one Mrs.Haseen Taj Secondary Grade Urdu Teacher, on
30.11.2019. The petitioner school management being Religious and as well as
linguistic Minority School selected and appointed one Tmt.Shabana Begum,
who possessed all requisite qualifications as Secondary Grade Teacher (Urdu)
vide an order dated 01.12.2019 and she joined the school on the same day.
Pursuant to her appointment, the school submitted a proposal dated 14.12.2019
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W.P.No.27910 of 2021
seeking approval of appointment of Tmt.Shabana Begum, as Secondary Grade
Teacher with effect from 01.12.2019. The 4th respondent without forwarding
the proposal to the 3rd respondent passed impugned order vide
O.Mu.No.199/A1/2019, dated 10.03.2020 and returned the proposal for
approval of appointment of Tmt.Shabana Begum as Secondary Grade Teacher,
on the ground that as per G.O.Ms.No.165, dated 17.09.2019, if surplus posts
are available approval could not be granted for appointment and the order
passed by the 4th respondent is without jurisdiction.
4. The learned counsel for the petitioner further submitted that the
competent authority to grant approval of appointment is only the 3rd respondent.
The 4th respondent being the forwarding authority has no jurisdiction to reject
the proposal and the petitioner school is a religious and as well as linguistic
minority institution imparting education in Urdu Medium and the vacancy was
caused in the school in the sanctioned post on account of retirement of earlier
incumbent on 30.11.2019 and the recruitment process commenced way prior to
issuance of G.O.Ms.No.165, dated 17.09.2019. The Madurai Bench of Madras
High Court vide interim order dated 20.09.2019 has suspended the operation of
G.O.Ms.No.165, School Education Department, dated 17.09.2019.
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W.P.No.27910 of 2021
Subsequently, the Division Bench declared the G.O.Ms.No.165 dated
17.09.2019, as in-operative in W.A.(MD).No.76 of 2019 etc., batch dated
31.03.2021 and brushing aside these vital factors, the 4th respondent
mechanically rejected the proposal for approval of appointment of the
petitioner. The Education Department, every year, after inspecting the school
would fix the staff strength for the school and the post of Secondary Grade
Assistant has been shown in the staff strength and the school having enormous
strength and requires the work of Secondary Grade post and without this post,
the education of the students would be jeopardised.
5. The learned counsel for the petitioner further submitted that the 4th
respondent failed to consider the fact that G.O.Ms.No.165, dated 17.09.2019
was passed only in respect of Corporate Managements or other cluster of
Managements and in the present case the school is a single unit and the bare
perusal of the fixation of the staff strength would prove that there is no surplus
staff working in the school. Therefore the G.O.Ms.No.165 dated 17.09.2019,
was declared to be in-operative by the Division Bench of this Court and the
same cannot put against the School. As per the provisions of the Tamil Nadu
Private School Regulation Act, 1973, the petitioner School is the competent
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W.P.No.27910 of 2021
person to appoint teachers and there is no ban on appointment of teaching posts
in an Aided Institution which is imposed under the Tamil Nadu Recognised
Private School Regulation Act. The Educational Authorities are Supervising
Authorities under the Act and the respondents being a supervisory authority
cannot step into the shoes of Appointing Authority and thereby make
deployment in the permanent vacancy caused in the sanctioned post contrary to
the Tamil Nadu Private School Regulation Act and Rules.
6. The learned counsel for the petitioner further submitted that the
issue involved in the writ petition is covered by the order of this Court rendered
in W.P.No.3189 of 2020, dated 26.02.2020 and the same was confirmed in
W.A.No.1090 of 2020 dated 04.02.2021 and the said order was implemented by
the respondent. The third respondent has granted approval to the appointments
made in other aided institutions and altogether a different yardstick was applied
in respect of the petitioner for extraneous reasons and the impugned order
passed by the 4th respondent rejecting to approve the appointment of the
petitioner is a clear case of discrimination under Article 14 of Constitution of
India. In a similar matter the intra-court appeal filed by the Government in
W.A.No.941 of 2021 against the order passed in W.P.No.35326 of 2019 dated
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W.P.No.27910 of 2021
20.12.2019 was confirmed by an order dated 18.08.2021. Therefore, there is no
impediment in approving the appointment of Tmt.Shabana Begum Secondary
Grade Teacher with effect from 01.12.2019.
7. In this context, the learned counsel for the petitioner relied upon
the order passed by this Court in W.P.No.14240 of 2022 dated 15.06.2022 and
W.P.No.19229 of 2023 dated 02.08.2023, wherein this Court has directed the
respondent to consider the appointment of approval of the petitioner.
8. Counter affidavit dated 04.02.2022 has been filed by the 3 rd
respondent and it is relevant to extract paragraph No.7 of the counter affidavit
and the same is extracted as hereunder:-
7. Regarding the averments in para 4 and 5 of the affidavit of
the petitioner, it is submitted that it is not disputed that the vacancy was
caused due to the retirement of one Hassen Taj who was working as
Secondary Grade Teacher in petitioner's School on 30.11.2019. It is not
correct to say that the petitioner has commenced the recruitment process
well before the issue of the Government order in G.O.Ms.No.165 School
Education Department dated 17.09.2019. But a perusal of the letter dated
01.12.2019 seeking approval of the said appointment reveals that there
was no such earlier process since the appointment was made on very next
date of the retirement of previous incumbent. Though the reason assigned
for returning the proposal is the guidelines in the above government
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W.P.No.27910 of 2021
orders, there are several violations in the matter of the appointment as
follows:-
(a) that the vacancy arose only on 30.11.2019 and even
without getting approval of the said retirement order by the competent
authority, fresh appointment was made on the very next day i.e.,
01.12.2019.
(b) that the said appointment was made after getting list of
suitable candidates from the District Employment exchange and after
making advertisement in two daily news papers as prescribed in
G.O.Ms.No.44, Labour and Employment Department dated 11.03.2015
which was issued as per the observations of this Hon'ble Court in
W.A.No.1027 of 2013 dated 09.06.2014 in order to comply with Article 14
and Article 16 of the Constitution of India.
(c) the petitioner has not obtained prior permission from the
competent authority as required under Section 35(2) of Tamil Nadu
Private Schools (Regulation) Act, 2018.
(d) a perusal of the letter dated 01.12.2019 seeking approval
of the said appointment reveals the proposal did not contain the
following documents.
(i) genuineness certificate of the applicant's Educational
Certificates.
(ii) School Committee resolution is not available.
(iii) physical fitness Certificate is not available.
(iv) copy of orders declaring the petitioner's institution as Minority one
(v) copy of orders approving the Manager/Correspondent of the
School by the competent authority.
9. Heard both sides and perused the materials available on record.
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W.P.No.27910 of 2021
10. The petitioner was appointed as the Secondary Grade Teacher
(Urdu) vide order dated 01.12.2019 by the petitioner school and the proposal
dated 14.12.2019 seeking approval of the appointment of the petitioner as
Secondary Grade Teacher with effect from 01.12.2019 was forwarded to the 4th
respondent. The main contention of the learned counsel for the petitioner is
that the 4th respondent without forwarding the proposal to the 3rd
respondent has passed the impugned order vide A.Thi.Mu.No.199/A1/2019,
dated 10.03.2020 returning the proposal for approval of the petitioner
school to appoint Tmt.Shabana Begum as Secondary Grade Teacher on the
ground that as per G.O.Ms.No.165, dated 17.09.2019 if surplus posts are
available approval could not be granted for appointment and the order
was passed by the 4th respondent without jurisdiction and the competent
authority to pass order is only the third respondents. The vacancy was
caused in the school for the sanctioned post on the ground of retirement for
earlier incumbent on 13.11.2019 and the institution being a linguistic
minority institution imparting education in Urdu Medium.
11. The Madurai Bench of Madras High Court vide interim order
dated 20.09.2019 has suspended the operation of G.O.Ms.No.165, School
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W.P.No.27910 of 2021
Education Department, dated 17.09.2019. Subsequently, the Division
Bench declared the G.O.Ms.No.165 dated 17.09.2019, as in-operative in the
order passed in W.A.(MD).No.76 of 2019 etc., batch dated 31.03.2021 hence
the reason given by the 4th respondent in the impugned order is not
sustainable and the same is also passed without jurisdiction. The learned
counsel for the petitioner has rightly relied upon the order passed by this Court
in a similar case vide W.P.No.14240 of 2022 dated 15.06.2022 and the relevant
portion is extracted as below:-
2. The prayer as sought for in the instant writ petition is
squarely covered by the judgment of this Court dated 18.04.2022 in
W.P.No.3194 of 2020 etc. Batch case [B.Kurinjimalaron Vs The State
of Tamil Nadu rep. By its Secretary, Education Department, Fort
St.George, Chennai – 9] wherein this Court held as follows:
“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 appointments 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.
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 17.09.2019 will not
prohibit the educational authorities to approve the appointments made
by the School Management in the instant writ petitions since the
proposals for approval of appointments made by the School
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Management were forwarded to the educational authorities prior to the
issuance of G.O.Ms.No.165 dated 17.09.2019. Therefore, this Court is
of the view that the respondent department without considering the
G.O.Ms.No.165 dated 17.09.2019 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.
11. Accordingly, the impugned orders passed by the
respondent department in the aforesaid writ petitions are quashed and
remitted to the Chief Educational Officers/District Educational Officers
concerned to consider and pass an order of approval of the
appointments made by the School management, provided the said
proposals satisfies all the norms prescribed for such appointments and
as per the Rules, as expeditiously as possible preferably within a period
of 12 weeks from the date of receipt of copy of the order. It is made
clear that those who are appointed to the post of Secondary Grade
Teacher/B.T. Assistant/Middle Grade Assistant prior to the issuance of
G.O.Ms.No.165 dated 17.09.2019 and also the proposals for approval of
such appointments were also forwarded to the educational authorities
prior to the issuance of G.O.Ms.No.165 dated 17.09.2019 alone are
entitled to the relief granted hereinabove.”
and also in another judgment passed by this Court in W.P.No.19229 of 2023
dated 02.08.2023 and the relevant portion is extracted as below:-
3. The earlier order dated 25.06.2020 in respect of
Mrs.Fahmidunnisa is put in challenge before this Court in a writ petition
in W.P.No.14240 of 2022. This Court, by order dated 15.06.2022 set aside
the Order dated 25.06.2020 and directed the respondent to consider the
appointment of approval of the petitioner. The relevant portion of the
order is extracted below:-
“...3. In the light of the judgment cited supra, the
impugned order passed by the second respondent is quashed and
remitted to the second respondent to consider and pass an order of
approval of the appointment made by the fourth respondent School,
in the light of the judgment cited supra, provided the said proposals
satisfies all the norms prescribed for such appointment and as per
the Rules, as expeditiously as possible preferably within a period of
12 weeks from the date of receipt of copy of the order.”
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W.P.No.27910 of 2021
12. In view of the above factual matrix of the case and the ratio laid
down by this Court in W.P.No.19229 of 2023 dated 02.08.2023 and
W.P.No.14240 of 2022 dated 15.06.2022, this Court is of the considered view
that the impugned order passed by the 4th respondent vide
A.Thi.Mu.No.199/A1/2019 dated 10.03.2020 is liable to be quashed and the
same is hereby quashed.
13. In the result, this writ petition stands allowed and the respondents
are directed to approve the appointment of Tmt.Shabana Begum as Secondary
Grade Teacher in the petitioner school with effect from 01.12.2019 with all
consequential monetary benefits in the light of the order passed in
W.P.No.3189 of 2020 dated 26.02.2020 dated 26.02.2020 within a period of
eight weeks from the date of receipt of a copy of this order. No costs.
Consequently connected miscellaneous petition is also closed.
26.09.2023
dpq
Index : Yes /No
Speaking/Non speaking order
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W.P.No.27910 of 2021
To
1. The State Tamil Nadu
Rep. By its Secretary to Government
Education Department, Chennai – 9
2. The Director of Elementary Education,
D.P.I. Buildings, College Road,
Chennai – 600 006.
3. The District Educational Officer,
Vaniyambadi,
Thirpattur District.
4. The Block Educational Officer,
Peranambut Range,
Peranambut.
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W.P.No.27910 of 2021
J. SATHYA NARAYANA PRASAD, J.
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W.P.No.27910 of 2021
26.09.2023
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