Madras High Court
The Director Of School Education vs The Correspondent & Headmistress on 29 October, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.A.No.3147 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2024
CORAM :
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.A.No.3147 of 2024
1.The Director of School Education,
College Road,
Chennai.
2.The Chief Educational Officer,
Collectorate Campus,
Salem-636 001.
3.The District Educational Officer,
Collectorate Campus,
Salem-636 001. .. Appellants
Vs
The Correspondent & Headmistress,
Fathima Girls Higher Secondary School,
Omalur-636 455,
Salem District. .. Respondent
Prayer: Appeal filed under Section 15 of the Letters Patent against the
order passed by the learned Single Judge in W.P.No.23167 of 2021,
dated 26.9.2023.
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W.A.No.3147 of 2024
For the Appellants : Mr.U.M.Ravichandran
Special Government Pleader
For the Respondent : Mr.Mutharasu
for M/s.S.Amala Irudhaya Mary
JUDGMENT
(Delivered by D.Krishnakumar, J.)
This intra-Court appeal is filed by the appellants against the
order of the learned Single Judge dated 26.9.2023 passed in
W.P.No.23167 of 2021.
2. The respondent had filed the writ petition for issuance of
a writ of certiorarified mandamus calling for the records relating
to the staff fixations in Na.Ka.No.18945/P3/2018 dated
27.12.2018 and Na.Ka.No.14491/A3/2019 dated 12.11.2019
respectively for the years 2018-2019 and 2019-2020 and the
order in Na.Ka.No.5814/B4/2019 dated 4.9.2019 issued by the
second appellant and quash the same and further direct the
second appellant herein to approve forthwith the appointment of
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R.Paul Raj as Waterman in the respondent school with effect from
1.12.2009 with all attendant benefits including the arrears of
salary and allowance.
3. The learned Single Judge quashed the orders impugned
in the writ petition and directed the second appellant to approve
forthwith the appointment of R.Paul Raj as Waterman in the
respondent school with effect from 1.12.2009 with all attendant
benefits, including arrears of salary and allowances, within a
period of six weeks from the date of receipt of a copy of the
order. Aggrieved by the same, the appellants have filed the
present appeal.
4. Assailing the order of the learned Single Judge, learned
Special Government Pleader for the appellants submitted that the
Management of the respondent school has not obtained prior
permission to fill up the vacant post. The respondent school has
been intimated through the Staff Fixation Orders from 2009 to
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2017 that though the Gardner, Waterman, Watchman, Scavenger
and Sweeper, who are currently rendering service in their school,
are declared surplus, they are allowed to work in the same school
till their retirement with grant-in-aid and on their retirement,
these posts may not be filled up in reference to G.O.Ms.No.115,
School Education (D2) Department, dated 30.05.2007 and, in
case the school Management wishes to fill up these posts, they
may do so on condition that the school Management itself should
bear the expenditure incurred towards hiring, as it has been in
the case of Government run schools. Thus, the respondent
school had been informed sufficient number of times the stand of
the Government in the matter of approval of appointment of non-
teaching staff such as Waterman/Sweeper. It is only the
respondent school which did not pay heed to what has been
communicated to the school Management.
5. Learned Special Government Pleader would submit that
the learned Single Judge ought to have considered the fact that
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the second appellant has acted in strict compliance of the law in
force and the Government Orders in G.O.Ms.No.238, School
Education Department, dated 13.11.2018 and G.O.Ms.No.64,
School Education Department, dated 3.4.2018 are unequivocal in
this regard. It is only the respondent school which has given a
go-by to what is stated in Serial Number 18 of the Staff Fixation
Orders issued by the second appellant right from the year 2009.
The learned Single Judge failed to consider the said aspects in
proper perspective.
6. Learned Special Government Pleader further submitted
that the learned Single Judge ought to have considered the fact
that the alleged appointment of R.Paul Raj was never approved
by the authorities and the respondent had furnished wrong and
misleading information to the Court. When there was no
approval from the authorities to an appointment by the
respondent Management, the respondent cannot claim that the
appointment of R.Paul Raj is much earlier than the Government
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Orders. The appointment process reaches its fruition only when
the proposal is duly approved by the competent authorities.
7. Learned Special Government Pleader next submitted that
the learned Single Judge ought to have considered the fact that it
is wrong on the part of the respondent to claim that neither any
notice nor any opportunity of hearing was provided before
issuance of the impugned orders. The respondent school has
been annually informed of the position of the department over a
period of nine years since 2009 through the Staff Fixation Orders.
The claim of the respondent is not only illegitimate, but also
misleading.
8. Adding further, learned Special Government Pleader
submitted that by accepting to the respondent's claim, the
Government may have to incur a huge loss by way of salary and
other benefits to the one who is attempting to pull the wool over
everyone's eyes and hoodwink his way to undue benefits. This is
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nothing, but an attempt with malafide intent to avail an
unwarranted benefit at the cost of the public exchequer. Thus,
learned Special Government Pleader prayed for setting aside the
order of the learned Single Judge and dismissing the writ petition
filed by the respondent school.
9. Supporting the order of the learned Single Judge, learned
counsel for the respondent submitted there is no error in the
order of the learned Single Judge and the present appeal has
been preferred only to drag on the proceedings. He would submit
that R.Paul Raj has been appointed as early as 1.12.2009 and,
therefore, G.O.Ms.No.238, dated 13.11.2018 may not be
applicable. In fact, G.O.Ms.No.238 in no way bans the approval
of R.Paul Raj, as his post is already a sanctioned one and the
issue of surplus never arose in the respondent school. The
learned Single Judge, after referring to the earlier decisions of
this Court, rightly allowed the writ petition and the same
warrants no interference. Thus, he prayed for dismissal of the
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appeal.
10. We have considered the rival submissions and also
perused the materials available on record.
11. There is no dispute that the respondent school is a
minority institution run by the Roman Catholic Congregation of
Immaculate Heart of Mary Pondicherry and there arose a vacancy
in the post of Waterman/Sweeper in the school on 1.12.2009 due
to the retirement of the previous incumbent on 30.11.2009. One
R.Paul Raj was appointed in the said vacant post with effect from
1.12.2009. The respondent school Management has sent a
proposal to the educational authorities for approval of the said
appointment, however, the same was returned by the authorities
citing G.O.Ms.No.64, School Education Department, dated
3.4.2018 and G.O.Ms.No.238, School Education Department,
dated 13.11.2018.
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12. It is the contention of learned Special Government
Pleader that the learned Single Judge ought to have considered
the fact that there arose a vacancy in the respondent school in
the post of Waterman/Sweeper on 1.12.2009 due to the
retirement of D.Chenbagam on 30.11.2009 and, in this regard,
he has drawn our attention to Serial No.18 of the Staff Fixation
Orders, which reads thus:
“18. In Column 6 of the Staff fixation order,
though it is informed that the Gardener,
Waterman, Watchmen, Scavenger and Sweeper
who are currently rendering service are declared
surplus, they are allowed to work in the same
school till their retirement with grant-in-aid and on
their retirement, these posts may not be filled up
in reference to G.O.Ms.No.115, School Educational
Department (D2) dated 30.05.2007 and in case
the school management concerned wishes to fill up
these posts viz. Watchman, Scavenger, Sweeper,
Scavenger/Sweeper, they may do so on the
condition that the school management itself should
bear the expenditure incurred toward the hiring as
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it has been done in the case of government run
schools.”
13. It is also the contention of learned Special Government
Pleader that the learned Single Judge ought to have considered
the fact that the Government has unequivocally announced its
stand with regard to appointment of non-teaching posts in aided
schools in Para (v) in G.O.Ms.No.64, School Education
Department, dated 3.4.2018, wherein it is stated as under:
“(v) When the posts such as Librarian, Library
Assistant, Gardener, Waterman are not approved
even in respect of government schools, such
incumbent posts in government aided schools may
be withdrawn either when the incumbent
employees retire or in the event of their promotion
and as and when these posts become vacant. The
approval granted to such schools should be
withdrawn. The Director of School Education is
instructed that the posts that become vacant in the
above fashion should be informed to the
government specifying the name of the school, the
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vacant post and the date on which a particular post
is rendered vacant.”
14. At the relevant point of time, the students strength of
the respondent school is 2432. That apart, 51 teaching and 6
non-teaching staff were employed. One post of Waterman/
Sweeper in the school fell vacant on 1.12.2009 due to retirement
of D.Chenbagam and in that vacancy, R.Paul Raj was appointed
as Waterman with effect from 1.12.2009 and the incumbent had
also joined duty on the same day. Thus, G.O.Ms.No.238, dated
13.11.2018 is of no avail to the case of the appellants, as the
appointment of R.Paul Raj was made by the respondent school as
early as 1.12.2009 and the non-teaching staff R.Paul Raj had
joined duty on the same day, which is much prior to the issuance
of the said Government Order.
15. So far as permission to be obtained before making
appointment is concerned, the First Bench of this Court in the
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case of Director of School Education and others v. S.Murugan and
another, W.A.No.1022 of 2020, dated 7.1.2021, held as under:
“6. What is of importance is whether an aided School is
required to obtain prior permission from any authority
to undertake the process of appointment upon a
vacancy arising in a sanctioned non-teaching post. The
appellants have not been able to indicate any Rule or
Notification or the like requiring prior permission to be
sought before undertaking the exercise to look for a
replacement upon a sanctioned post falling vacant in
the non-teaching category.
7. It is possible that there may be surplus staff in other
Government-aided Schools in the District or nearby
areas. It is equally possible that the Government may
require the surplus staff to be deployed at other aided
Schools upon vacancies in similar post arising thereat.
However, there has to be a mechanism which has to be
put in place for such purpose and the process has to be
certain. It would not do for the Department to refuse
an appointment merely because at the time of
appointment, the Department finds surplus staff of
similar description in other aided Schools in the District
or the locality. The position as to surplus staff ought to
exist at the time when the vacancy arose or, at any
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rate, prior to the process of appointment being
initiated. Once the appointment process is undertaken
and a person is identified, it may no longer be open to
the Department to refuse the appointment and undo
the process by citing surplus staff.
8. In such a scenario, the Department may do well to
either bring in Rules that would require aided Schools
to obtain permission from the relevant District
Educational Officer before undertaking an appointment
procedure and the District Educational Officer being
required to respond to the request within a fixed time,
so that the relevant School can fill up the vacancy
without undue delay. In the alternative, the relevant
District Educational Officer may circulate the
description and number of the surplus staff at various
levels to all Schools for such Schools to be able to fill
up any vacancy that arises from the surplus staff at the
relevant post. In the absence of either, an aided School
cannot be faulted for undertaking the exercise of
appointing a person to a sanctioned post or seeking the
appointment. The permission that is sought is not
permission to fill the post as such, but permission to
enable the District Educational Officer to scrutinise
whether the appointment procedure was alright and
whether the incumbent fits the bill.
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9. In the present case, the order impugned cannot be
faulted, since there was no mechanism of either kind
as referred to above. It is irrelevant that the vacancy
arose in 2014 and the attempt to fill the vacancy was
undertaken in 2018. Since there was no Rule to seek
prior permission from the District Educational Officer
before the appointment procedure was undertaken, the
School cannot be blamed. The appointment cannot be
denied merely because there was surplus staff which
the School was not made aware of before the School
undertook the appointment procedure."
16. It appears that G.O.Ms.No.115, dated 13.05.2007
referred to in the Staff Fixation Orders was already quashed by
this Court in W.P.(MD) No.11481 of 2008 on the ground that the
same was issued without jurisdiction and also violative of the
scheme of the Tamil Nadu Recognized Private Schools Act, 1973.
That apart, the Act also does not prescribe obtaining permission
before making appointment in the sanctioned posts, whenever a
vacancy arose against the same.
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17. In similar matters, (i) The Director of School Education
and others v. DBTR National Higher Secondary School,
W.A.No.42 of 2021, decided on 3.8.2021 and (ii) The Director of
School Education and others v. St. Gabriel's Higher Secondary
School, W.A.No.1645 of 2021, decided on 3.8.2021, a Division
Bench of this Court negatived the argument of the State that
prior permission ought to have been obtained by the school
before the appointment is made of any non-teaching staff and
surplus staff should have been engaged in view of
G.O.Ms.No.238. The decision rendered in the aforesaid two cases
is squarely applicable to the case on hand. Thus, both the
grounds raised by the appellants herein have already been
decided by this Court. Therefore, in the absence of any specific
rule or regulation mandating that prior permission is required for
appointing a non-teaching staff in a sanctioned post, the
appointment made by the respondent school cannot be faulted
with and the learned Single Judge rightly quashed the orders
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impugned in the writ petition and directed the second appellant
to approve the same within the stipulated period. We see no
reason to interfere with the same.
In the result, the writ appeal is dismissed and the order of
the learned Single Judge is confirmed. The appellants are
directed to comply with the directions issued by the learned
Single Judge within a period of eight weeks from the date of
receipt of a copy of this judgment. Consequently,
C.M.P.No.24157 of 2024 is closed. No costs.
(D.K.K., J.) (P.B.B., J.)
29.10.2024
Index : Yes/No
NC : Yes/No
bbr
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D.KRISHNAKUMAR,J.
AND
P.B.BALAJI,J.
bbr
29.10.2024
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