Madras High Court
The Chief Educational Officer vs The Secretary on 28 April, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)Nos.99, 108 and 119 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.03.2025
PRONOUNCED ON : 28.04.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)Nos.99, 108 and 119 of 2025
and
C.M.P.(MD)Nos.660, 697 and 752 of 2025
1.The Chief Educational Officer,
Virudhunagar District.
2.The District Educational Officer,
Virudhunagar District. ... Appellants in all cases
Vs.
The Secretary,
S.H.N.Esthel Harvey Girls' Higher
Secondary School,
Sattur, Virudhunagar District. ... Respondent in all cases
Prayer in W.A.(MD)No.99 of 2025: Writ Appeal filed under Clause 15 of the
Letter Patent against the order of this Court in W.P.(MD)No.5677 of 2024, dated
19.03.2024.
Prayer in W.A.(MD)No.108 of 2025: Writ Appeal filed under Clause 15 of the
Letter Patent against the order of this Court in W.P.(MD)No.5743 of 2024, dated
12.04.2024.
1/22
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W.A.(MD)Nos.99, 108 and 119 of 2025
Prayer in W.A.(MD)No.119 of 2025: Writ Appeal filed under Clause 15 of the
Letter Patent against the order of this Court in W.P.(MD)No.5678 of 2024, dated
19.03.2024.
In all cases:
For Appellants :Mr.J.Ashok
Additional Government Pleader
For Respondent :Mr.V.Panneerselvam
***
COMMON JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
All the three writ appeals are arising from the common order passed in
the three writ petitions and the issue raised is same. Hence the three writ appeals
are taken together and a common judgment is passed.
2.(i) The writ appeal in W.A.(MD)No.99 of 2025 is filed by the
respondents against the order dated 19.03.2024 passed in W.P.(MD)No.5677 of
2024. The writ petition in W.P.(MD)No.5677 of 2024 was filed for issuance of a
Writ of Certiorarified Mandamus, to quash the order, dated 15.02.2022 and the
consequential order, dated 23.02.2022 and to direct the respondents to approve
the appointment of K.Karuppasami as Junior Assistant with effect from
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01.11.2019 with salary and other benefits.
2.(ii) The writ appeal in W.A.(MD)No.108 of 2025 is filed by the
respondents against the order dated 12.04.2024 passed in W.P.(MD)No.5743 of
2024. The writ petition in W.P.(MD)No.5743 of 2024 was filed for issuance of a
Writ of Certiorarified Mandamus, to quash the order, dated 15.02.2022 and the
consequential order, dated 22.02.2022 and to direct the respondents to approve
the appointment of K.Packiyalakshmi as Office Assistant with effect from
11.12.2019 with salary and other benefits.
2.(iii) The writ appeal in W.A.(MD)No.119 of 2025 is filed by the
respondents against the order dated 19.03.2024 passed in W.P.(MD)No.5678 of
2024. The writ petition in W.P.(MD)No.5678 of 2024 was filed for issuance of a
Writ of Certiorarified Mandamus, to quash the order, dated 15.02.2022 and the
consequential order, dated 23.02.2022 and to direct the respondents to approve
the appointment of M.Mercy Kiruba Rani as Lab Assistant with effect from
01.11.2019 with salary and other benefits.
3. The school is the writ petitioner is all the writ petitions. The brief
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facts of the case as stated in the writ petitions are that the school was established
in the year 1948 to provide education for girl students. Now, 1731 students are
studying as per staff fixation order. The school is sanctioned with 6 posts under
non-teaching category namely, Junior Assistant, Record Clerk, Lab Assistant,
Office Assistant, Waterman-cum-Sweeper and Scavenger. A post of Junior
Assistant fell vacant on 01.06.2017 due to voluntary retirement of Tmt.S.Padma.
A post of Office Assistant fell vacant on 01.06.2018 due to promotion of
Mr.M.Muthumanikandan. A post of Lab Assistant fell vacant on 04.08.2018 due
to death of the incumbent Mr.G.Paramasivam.
4.(i) The school contended that though the school is not required to get
prior permission to fill up the post under the statute in order to avoid the
controversy and complications, the management submitted a proposal and the 1st
respondent granted permission on 11.09.2019 after two years. Thereafter, paper
publication was issued on 19.09.2019 and a list from employment exchange was
also sought for. Then selection process was conducted as per rules and
regulations and one K.Karuppasami was selected and appointed as Junior
Assistant on 01.11.2019. The management submitted the proposal for approval on
01.11.2019 but the official respondents in the writ petition rejected the approval,
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vide order, dated 23.02.2022, by citing various litigations in W.P.No.31575 of
2019, dated 08.11.2019, W.A.(MD)No.76 of 2019, Government letter, dated
04.12.2019 and SLP Diary No.22676 of 2021. Aggrieved over the same, the writ
petition in W.P.(MD)No.5677 of 2024 was filed.
4.(ii) Likewise, for the post of Office Assistant which became vacant on
01.06.2018 due to promotion vacancy, the prior permission was sought and the
same was granted on 05.09.2019 after lapse of one year, thereafter the said post
was filled by granting compassionate appointment on 11.12.2019 to one
K.Packiyalakshmi wife of Paramasivam who died while serving as Lab Assistant.
The management submitted the proposal for approval on 11.12.2019 but the
official respondents in the writ petition rejected the approval, vide order, dated
23.02.2022, by citing various litigations in W.P.No.31575 of 2019, dated
08.11.2019, W.A.(MD)No.76 of 2019, Government letter, dated 04.12.2019 and
SLP Diary No.22676 of 2021. Aggrieved over the same, the writ petition in W.P.
(MD)No.5743 of 2024 was filed.
4.(iii) The Lab Assistant post became vacant on 04.08.2018 due to the
death of the incumbent namely Paramasivam, prior permission was granted on
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W.A.(MD)Nos.99, 108 and 119 of 2025
05.09.2019 after lapse of one year. Thereafter, paper publication was issued on
19.09.2019 and a list from employment exchange was also sought for. Then
selection process was conducted as per rules and regulations and one M.Mercy
Kiruba Rani was appointed as Lab Assistant with effect from 01.11.2019. The
management submitted the proposal for approval on 01.11.2019 but the official
respondents in the writ petition rejected the approval, vide order, dated
23.02.2022, by citing various litigations in W.P.No.31575 of 2019, dated
08.11.2019, W.A.(MD)No.76 of 2019, Government letter, dated 04.12.2019 and
SLP Diary No.22676 of 2021. Aggrieved over the same, the writ petition in W.P.
(MD)No.5678 of 2024 was filed.
5. The contention of the writ petitioner is that the said litigations are
pertaining to teaching staff in the school and the same has nothing to do with the
appointment of non-teaching staff. On the other hand, the Additional Government
Pleader submitted that even before the district wise surplus came to be exhausted,
the appointment was made. Further G.O.Ms.No.238, dated 13.11.2018, was
upheld by the Learned Single Judge. Aggrieved over the same, the school
managements and individuals had preferred appeal in W.A.(MD)No.816 of 2023
and had obtained stay and a batch of writ appeals are pending. In such
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circumstances, the appointments cannot be approved.
6. After considering the rival submissions, the Writ Court had held that
the appellants have granted permission to fill the vacancy. Having granted
permission, the respondents cannot deny the approval of appointments. The Writ
Court further held that the school is a “stand-alone non-minority school” and it is
an admitted fact that there is no surplus in the petitioner school. The existence of
surplus is irrelevant as far as stand-alone institutions are concerned and prior
permission to fill the posts are not necessary. The order passed in W.A.(MD)No.
76 of 2019 is not applicable to the non-teaching staffs, moreover the SLP filed
against the order passed in W.A.(MD)No.76 of 2018 is already dismissed.
Therefore, the Writ Court quashed the denial order and the official respondents
were directed to grant approval. Aggrieved over the same, the present writ appeals
are preferred by the official respondents.
7. The primary contention of the appellants is that the school had
appointed the following persons in the non-teaching posts on such dates as stated
in the tabulation, but in the meantime the G.O.Ms.No.238, School Education
Department, dated 13.11.2018, had come into force, hence the school is not
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entitled to approval of appointment. The particulars of the appointed persons are
stated below:
S. No. Particulars regarding existing Particulars regarding
vacancy appointments
1 Junior Assistant fell vacant on After selection process
01.06.2017 due to voluntary appointed K.Karuppasami as
retirement of Tmt.S.Padma. Prior Junior Assistant on 01.11.2019
permission granted on
11.09.2019
2 A post of Office Assistant fell Compassionate appointment as
vacant on 01.06.2018 due to Office Assistant on 11.12.2019
promotion of Mr.M. Muthu to K. Packiyalakshmi wife of
Manikandan. Prior permission Paramasivam who died while
granted on 05.09.2019 serving as Lab Assistant
3 A post of Lab Assistant fell After selection process
vacant on 04.08.2018 due to appointed M.Mercy Kiruba
death of the incumbent namely Rani as Lab Assistant on
Mr.G.Paramasivam. Prior 01.11.2019
permission granted on
19.09.2019
It is seen that the Chief Educational Officer had granted prior permission to fill up
the vacancy on 11.09.2019 (Junior Assistant), 05.09.2019 (Office Assistant) and
19.09.2019 (Lab Assistant). Based on the same, the school granted
Compassionate Appointment on 11.12.2019 and the school had conducted
selection process and appointed other candidates on 01.11.2019. However, before
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granting “prior permission” to fill up the post, the G.O.Ms.No.238, School
Education Department, dated 13.11.2018, came into force. In such circumstances,
the Chief Educational Officer had committed mistake by granting prior
permission to fill the post without considering the impact of G.O.Ms.No.238. It is
pertinent to state that the said G.O.Ms.No.238 is the new “non-teaching staffs
cadre strength fixation order”. And the school cannot take advantage of such
mistake committed by the officials. Therefore, this Court is of the considered
opinion the permission to fill up the post dehors G.O.Ms.No.238 is erroneous,
hence the school may not be entitled to approval of appointment dehors
G.O.Ms.No.238. But if the writ petitioner school is coming within the purview of
G.O.Ms.No.238, then the school is entitled to approval. Hence it ought to be
scrutinized, “whether the appointments are made within the parameters of
G.O.Ms.No.238”, which this Court had analyzed in the following paragraphs.
8. The next issue raised by the school is that even though the validity of
the said G.O.Ms.No.238 is upheld by the Writ Court in W.P.(MD)No.13428 of
2020 dated 07.02.2023, the issue in pending in W.A.(MD)No.816 of 2023,
wherein a portion of the order was stayed. Hence it is contended by the school
that when there is stay for the said G.O.Ms.No.238, the approval cannot be denied
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by citing G.O.Ms.No.238. This Court is of the considered opinion, such
contention of the school ought to be rejected. When there is stay neither approval
can be granted nor approval can be denied, but the approval ought to be kept in
pending or proposal ought to be kept is abeyance. The interim stay in writ
petitions or writ appeals will not give a right to claim approval of appointment to
the writ petitioner school. The said issue is already considered by another
Division Bench in W.A.(MD)No.703 of 2020 batch and vide order dated
15.09.2020 it has been held as under:
“15. It is a well settled position of law that interim orders are granted to
maintain status-quo to protect the interest of the parties pending
disposal of the writ petition and it cannot be the basis to allow the main
writ petition. As rightly pointed out by the learned Special Government
Pleader, there is likelihood of dismissal of the writ petitions with a
consequential order for vacating the interim orders also.
16. In the light of the above facts and circumstances and the reasons
assigned above, the impugned orders passed in the writ petitions
warrant interference.
17. In the result, the writ appeals are partly allowed and the order dated
22.10.2019 passed in W.P(MD)No.20761 of 2019 and the orders dated
20.11.2019 passed in W.P(MD)Nos.21121 and 21123 of 2019
respectively, are set aside and the writ petitions are once again
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remanded to the Honourable Single Bench for disposal. In the
circumstances of the case, there shall be no order as to costs.
Consequently, connected Miscellaneous Petitions are closed.”
9. This Court fully concur with the aforesaid judgement of the Division
Bench. It is a well settled position of law that interim orders are granted to
maintain status-quo to protect the interest of both the parties pending litigations.
Hence, the contention of the school that some individuals and the school
managements had preferred writ appeal and the litigation is pending along with
interim stay and they are eligible for approval and approval cannot be denied by
citing G.O.Ms.No.230 is totally against law. Hence, the interim stay in writ appeal
cannot be the ground to allow the main writ petition that too with a positive
direction to grant approval. At the most it can be held that the proposal for
approval of appointment will be kept pending and the proposal would be
considered after the disposal of the writ appeal. In the present case the Writ Court
had granted positive direction to approve the appointment, which is totally illegal.
Further if the writ appeals filed by the individuals and schools are dismissed, then
the approval granted to the writ petitioner would become illegal. In such
circumstances, the individual would claim equity. In the entire process the State
Government would be put to prejudice. Hence such an argument can never be
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entertained and accepted. Accordingly this contention is rejected. Therefore, this
Court categorically holding that neither the school is entitled to approval nor the
government be forced to grant approval if there is interim stay of government
orders. Further in this case already the G.O.Ms.No.238 is upheld and the appeal is
preferred by the schools and individuals and not by the government. In such
circumstances, the Mandamus with positive direction granted by the Writ Court to
grant approval of appointment is illegal and totally against the settled principle of
law.
10. The next contention of the school that all the appointments are made
in the voluntary retirement vacancy, promotion vacancy and death vacancy,
therefore the said post is sanctioned post, in such circumstances the department
cannot deny approval. This Court is of the considered opinion that the “sanctioned
post” is claimed frequently by the individuals and the schools without
understanding that there cannot be a “permanent sanctioned post”, since the same
varies based on students’ strength for each academic year. Infact the staff fixation
order is issued every academic year based on the students’ strength, therefore
“sanctioned post” will come into play only after issuance of staff fixation order
for every academic year. If the students strength is reduced then the school shall
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not be entitled to the said post. If any person is working in the said post without
students strength, then the post would be declared as “surplus along with person”
and the person ought to be transferred or post on deputation to needy school.
Likewise, if there no person working in the said surplus post then the same would
be declared as “surplus without person” and the said post would be reverted to
“Director’s Common Pool”. If in the next academic year the school had increased
the students strength and as per the strength if the school is entitled to the said
post which was reverted to the “Director’s Common Pool”, then the school would
be permitted to submit a request to revert the said post and the same ought to be
considered in favour of the school. From the aforesaid procedure it is evident that
there cannot be any “permanent sanctioned post”. Consequently any claim that the
appointment is made is “sanctioned post”, cannot straight away be accepted. The
said claim ought to be scrutinised based on the staff fixation order for the disputed
academic year. Therefore, the claim of the writ petitioner that the appointment is
made in sanctioned post is a misnomer and the same cannot be accepted.
11. Now comes the crucial question regarding non-teaching posts granted
to schools. It is seen as early as 1966 the government issued G.O.Ms.No.583
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School and Public Health Department dated 23.04.1966, wherein the staff fixation
was granted as under:
Categories of Number Strength
Non-Teaching Below 250 More than More than More than
Staff 250 but 1000 but below 1500
below 1000 1500
Librarian or Nil 1 Nil Nil
Clerks for
Library
Office
Waterman - - - -
Gardener Cum - - - -
Sweeper
Gardener - - - -
12. All these years the government was following the G.O.Ms.No.583 for
granting non-teaching posts. Even in the aforesaid G.O. the post of Waterman,
Gardener-Cum-Sweeper, Gardener posts are not granted to any schools as early as
1966 itself. The sweeper and scavengers were granted as part time only. Hence,
the claim of the writ petitioner school that they were granted waterman-cum-
sweeper is incorrect. Further the post of sweeper and scavenger are part time only.
Nearly after 52 years the government had taken a policy decision to modify the
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cadre fixation for non-teaching staffs through G.O.Ms.No.238 School Education
Department dated 13.11.2018 and the same is detailed below:
Categories of Students Strength
Non-Teaching Until 250 From 251 to More than Remarks
Staff 1000 1001
Junior Assistant Nil 1 2 Maximum 2
or Assistant or
Record Clerk
Office Assistant 1 2 Maximum 2
Watchman 1 Maximum 1
13. As per the aforesaid G.O. the post of Junior Assistant or Assistant or
Record Clerk are considered as single post . Further the Lab Assistant post was
granted provided if it was already granted to school prior to the academic year
1991-1992. The other posts like sweepers and scavengers were directed “not to
appoint” and such work shall be outsourced. The G.O. also states as under:
i. If the school is having below 250 students, then the school is
not entitled to any Junior Assistant or Assistant or Record Clerk
posts, but is entitled to one post of Office Assistant and one post
of Watchman.
ii. If the school is having above 250 and below 1000 students,
then the school is entitled to one post of Junior Assistant or
Assistant or Record Clerk and one post of Office Assistant and
one post of Watchman.
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W.A.(MD)Nos.99, 108 and 119 of 2025
iii. If the school is having above 1001 students, then the school is
entitled to two posts of Junior Assistant or Assistant or Record
Clerk (with maximum of two posts only) and two post of Office
Assistant (with maximum of two posts only) and one post of
Watchman (with maximum of one post only).
14. Now the staff fixation order ought to be scrutinized in the light of
G.O.Ms.No.238. On perusal of the staff fixation order for the academic year
2019-2020 it is seen that the school is having standards 6 to 10 and also 11 th and
12th standards, in which “self-finance” section is also available. The total strength
of the students without self-finance section is more than “1001”. Then as per
G.O.Ms.No.238 the school is entitled to “Junior Assistant or Record Clerk or
Assistant to the maximum of two”. As per staff fixation one Record Clerk and
one Junior Assistant is already granted and the said Record Clerk and Junior
Assistant post are considered as single post in G.O.Ms.No.238. But based on
students strength the school is entitled with maximum of two of either Junior
Assistant or Record Clerk or Assistant.
15. The respondent school contended that “prior permission to appoint in
the vacant place is not necessary”. This Court is of the considered opinion that
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even though there are several orders, where it is held that prior permission is not
necessary, this Court is not able to accept, since any new appointment ought to be
made based on the staff fixation order for the said academic year. But the earlier
orders cited by the respondent school had not dealt with the staff fixation order
being the permission order, therefore the earlier orders had not laid down the
correct position. In other words, the earlier judgments it has not be considered in
the light to staff fixation order, therefore the said judgments cannot be relied on.
Therefore, the staff fixation order for the said academic year which starts
from June this year to May next year will be the “permission order” to fill
the vacancy. In the present case, all the appointments were appointed during
November and December 2019. Then the staff fixation order for the academic
year June 2019 to May 2020 would be the “prior permission order” to fill the
said vacancy. And this is applicable to stand-alone school also. Therefore, this
Court is of the considered opinion that the Writ Court has erred in holding that the
prior permission is not necessary to stand alone school. Therefore, this Court is
categorically holding that staff fixation order passed in every academic year
is the prior permission to fill up any vacant post. If in between any post
become vacant, either the school may appoint any person as temporary or may
wait until the staff fixation order is issued.
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16. The next contention of the school is that there is no surplus in the said
school and also submitted that the challenge in W.A.(MD)No.76 of 2019 is
regarding teaching staff, hence the same may not be applicable for non-teaching
staff. But it is stated by the appellants that there are few posts of Junior Assistant,
Record Clerk and Assistant were declared as surplus in the Revenue District.
After hearing the rival submissions this Court is of the considered opinion that the
order passed in W.A.(MD)No.76 of 2019 is applicable only to teaching and not
for non-teaching staff and the same is rightly pointed out by the school. As far as
surplus of non-teaching staff is concerned firstly, it has to be seen whether there is
surplus in the school, then it has to be seen whether there are surplus in the
Revenue District, then only it can be declared there is surplus or not. When there
is surplus in Revenue District, then the school is not entitled for fresh recruitment.
17. At this juncture, this Court is inclined to record that all educational
institutions have “social responsibility”. Since the government is granting grant-
in-aid from the “tax payers money”, then the government has every power to
control and reduce the surplus staffs, until then all the educational institutions are
bound to discharge their social responsibility by refraining from appointing any
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new person until the surplus staffs are accommodated in any available vacancy.
The government cannot be put to financial constraints.
18. Therefore, all private aided schools whether it is stand-alone school or
corporate management, whether it is minority or non-minority schools, if the
school has surplus or if the Revenue District has surplus, then the non-teaching
post shall not be filled up until the surplus of non-teaching staff in the Revenue
District becomes “Nil”. It is made clear that by such direction the minority status
of the school will not be affected, since the minority school are extending their
support to the government to full fill their social responsibility. Further it is only a
temporary situation, once the surplus becomes ‘Nil’ then the schools would get
their right to appoint non-teaching staffs as per G.O.Ms.No.238.
19. Based on the aforesaid discussion, the appointment of Junior Assistant
ought to be considered. The school is having more than 1001 students, as per
G.O.Ms.No.238 the school is entitled to two Junior Assistants post with maximum
of two posts alone (Junior Assistant or Record Clerk or Assistant – all the three
posts are considered as single post). The staff fixation order 2019-2020 issued in
March 2020 has granted two posts which is the maximum as per G.O.Ms.No.238,
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W.A.(MD)Nos.99, 108 and 119 of 2025
The new incumbent K.Karuppasami was appointed on 01.11.2019 (which fell
vacant on 01.06.2017) and another post is Record Clerk. Hence, the two posts
which is as per G.O.Ms.No.238 and the same is valid and consequently the new
appointment of K.Karuppasami is valid. As far as the compassionate appointment
of Office Assistant, the school is having the strength of 1001 and above and hence
the school is entitled to maximum of two posts of Office Assistant and in one post
the said K.Packiyalakshmi is appointed and hence the same is valid. As far as the
Lab Assistant is concerned, if the school was sanctioned with the said post prior
to 1991-1992, then the school is entitled to approval. Both the school and the
appellants have not placed any details or documents whether the said post was
granted prior to 1991-1992. Therefore the case is remitted as far as the
appointment of Lab Assistant is concerned. The authorities are directed to
ascertain whether the said post was granted prior to 1991-1992 to the school, if so
the same may be approved. It was brought to the knowledge of this Court that
pending these writ appeals, the authorities have granted approval of appointments
to all the posts. Except for the Lab Assistant post, the other approval to Junior
Assistant and Office Assistant post shall be confirmed and the Lab Assistant post
is remitted for verification as stated supra.
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W.A.(MD)Nos.99, 108 and 119 of 2025
20. For the reasons stated supra, the orders, passed by the Writ Court is
interfered to the extent stated supra. The W.A.(MD)No.99 of 2025 is dismissed,
W.A.(MD)No.108 of 2025 is dismissed and W.A.(MD)No.119 of 2025 is disposed
of with the above said direction. No costs. Consequently, connected
miscellaneous petitions are closed.
[J.N.B., J.] [S.S.Y., J.]
28.04.2025
Index : Yes / No
Tmg
To
1.The Chief Educational Officer,
Virudhunagar District.
2.The District Educational Officer,
Virudhunagar District.
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W.A.(MD)Nos.99, 108 and 119 of 2025
J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
W.A(MD)Nos.99, 108 and 119 of 2025
28.04.2025
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