Madras High Court
K. Liji vs The State Of Tamil Nadu on 12 September, 2025
W.P.(MD) No.840 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 01.08.2025
Pronounced On : 12.09.2025
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
W.P. (MD) No.840 of 2017
and
W.M.P(MD)Nos.696 & 697 of 2017
K. Liji,
W/o. S. Sreejith,
6-178, Valanvilai,
Swamiyarmadam,
Kattathurai Post- 629 158,
Kanayakumari District. ... Petitioner
Vs.
1. The State of Tamil Nadu,
Rep by its Secretary,
Department of School Education,
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
College Road,
Chennai- 600 006.
3. The Chief Educational Officer,
Chief Educational Office,
Nagercoil, Kanyakumari District
4. The District Educational Officer,
District Educational Office,
Thuckalay,Kanyakumari District-629 163.
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W.P.(MD) No.840 of 2017
5. The Correspondent,
St,Mary Goretty Higher Secondary School,
Manalikarai - 629164,
Kanyakumari District. ... Respondents
PRAYER in W.P.:
To issue a a Writ of Certiorarifed Mandamus or any i other writ or
order or direction like nature to call for the records on the files of the 4th
respondent pertaining to his order bearing Oo. Mu. No. 4257/A2/2016
dated 07.12.2016 and to quash the same and consequently direct the
respondents to approve the appointment of the petitioner as B.T Assistant
(English) in the 5th respondent school with effect from the date of
appointment that is on 01.06.2015 with all attendant benefits within a
stipulated time that may be prescribed by this Hon’ble Court by
considering the proposal resubmitted by the 5th respondent dated
14.12.2016 and pass such further or other orders as this Hon’ble court
may deem fit and proper in the circumstance of the case and thus render
justice.
PRAYER in WMP(MD)No.696 of 2017:
To dispense with the production of original impugned order of the
4th respondent pertaining to its bearing Oo. Mu. No. 4257/A2/2016 dated
07.12.2016 for the present and thus render justice.
PRAYER in WMP(MD)No.697 of 2017:
To issue an interim direction, directing the respondents to release
the grant in aid towards salary to the petitioner with effect from
01.06.2015 with arrears and other benefits to the petitioner pending
disposal of the writ petition and thus render justice.
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W.P.(MD) No.840 of 2017
APPEARANCE OF PARTIES:
For Petitioner : Mr.S.C.Herold Singh, Advocate
For Respondents : Mr.T.Amjad Khan,
Government Advocate for R1 to R4
: Mr.K.A.Thirumalaiappan,
Advocate for R5
JUDGMENT
Heard.
2. The Petitioner, who was appointed by the 5th Respondent–a
private aided school–in an unapproved post, seeks a direction to approve
her appointment as B.T. Assistant (English) with effect from 01.06.2015,
together with all consequential benefits, within a stipulated time, by
considering the proposal submitted by the 5th Respondent school on
14.12.2016. When the matter was listed for admission, the learned
Special Government Pleader took notice, and private notice was
permitted to the other private respondents. No interim order was granted
pending disposal of the writ petition.
3. Upon notice from this Court, the 4th Respondent–District
Educational Officer (DEO)–filed a counter affidavit dated Nil, April
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2017. The Petitioner thereafter filed a reply affidavit on 05.01.2018 and
placed reliance on two unreported judgments of this Court. It is settled
that the appointment of a teacher, subject to the applicable rules, lies
within the discretion of the school management. In the present case,
however, the 4th Respondent, by order dated 07.12.2016 (impugned in
the writ petition), merely directed the school management to obtain a No
Objection Certificate from the 3rd Respondent–Chief Educational
Officer, Kanyakumari District–for filling up the post of Graduate Teacher
in English.
4. The 5th Respondent–School Management, by letter dated
14.12.2016 addressed to the 4th Respondent, stated that being a
minority-run institution, there was no necessity to obtain a No Objection
Certificate, and that since the Petitioner was working in the only
available post of Graduate Assistant (English), approval ought to be
granted. However, after sending the said letter to the Education
Department, the management did not pursue the matter further by filing
any writ petition. It is therefore unclear how the Petitioner has
independently chosen to institute the present writ petition and seek the
relief noted above. It is needless to state that, in the case of a minority-
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aided school, the right of appointment vests with the management,
subject to the appointee possessing the requisite qualifications and the
post being available in the sanctioned strength of the school. It is not
open to an individual teacher, purportedly appointed by the management,
to challenge the decision of the authorities when the management itself
has not questioned the same before the appropriate forum.
5. In paragraphs 5 to 8 of the counter affidavit, the following
statements were made:
5. I submit that the petitioner’s school staff fixation
order issued by 3rd respondent for the academic years
2012-2013 in Mu.Mu.No.7756/Aa1/2012 dated 31.01.2013
one post Tamil Pandit has been rendered surplus with teacher
as per said staff fixation order. Subsequently staff fixation
order for the academic year of 2013-14 in mu mu No.
6453/AA1/2013 dated 03.10.2013 the following Post are
rendered surplus
Sl. Post No. of With
No. Post Teacher/Without
Teacher
1. B.T.Asst (History) 1 With Teacher
2. Tamil Pandit 1 Without Teacher
3. Secondary Grade 2 With Teacher
Teacher
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6. I submit that initially the petitioner’s school
correspondent 5th respondent of this writ appointed one
Tmt.M.Anitha as Tamil pandit w.e.f. 01.06.2012 in the vacancy
also out of retirement of Thiru.A.Xavier Tarcius and sent a
approval proposal to this respondent stating to approve the
appointment of Tmt.M.Anitha as Tamil Pandit w.e.f.
01.06.2012. The proposal was returned to the correspondent for
the reason that the said teachers has not at all completed the
mandatory TET Exam as per G.O.Ms.No. 181, School
Education Department dated 15.11.2011. In the meantime,
since the said school has short of student strength, one post of
Tamil Pandit has been rendered surplus with staff as per the
proceedings of the 3rd respondent dated 30.01.2013.
7. I submit that when the petitioner school has been
informed of the surplus teachers staffs vide the staff fixation
proceeding dated 03.10.2013, issued by the 3rd respondent, he
make matters complicated there by appointing one S.Srijith, as
B.T.Assistant (History) on 04.06.2014 in a surplus post.
8. I submit that subsequently staff fixation order for the
academic year of 2015-16 in mu mu No 6996/AA1/2015 dated
03.10.2015 the following Post are rendered surplus
Sl.No. Post No.of With Teacher /
Post Without Teacher
1. B.T.Asst (Maths) 1 With Teacher
2. B.T.Asst (Science) 1 With Teacher
3. B.T.Asst (Social Science) 1 With Teacher
4. Secondary Grade Teacher 4 Without Teacher
Further, the petitioner school Correspondent appointed the
petitioner as B.T.Assistant (English) with effect from 01.06.2015
one secondary grade teacher Tmt. A.Puspa Bai retired on
31.05.2015 which is also a surplus post, which is totally an
irregular appointment. It is totally suppressing the fact of the staff
fixation order for the academic year 2015-16, Issued by the 3rd
respondent in his proceedings Mu.Mu.No. 6996/B1/2015 dated
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03.10.2015. Hence, these respondents are not in a position to
approve the appointment of petitioner as B.T.Assistant (English)
w.e.f. 01.06.2015 and to disburse the grant-in-aid to the said post.”
6. In paragraphs 2 and 3 of the reply affidavit, the Petitioner has
contended as follows:
“2. I state that I was appointed in the retirement vacancy
of A.Pushabai who attained the age of superannuation on
31-05-2015 and was receiving her salary till the date of
superannuation. I state that G.O.Ms.No. 100 School Education
dated 27-06-2003 issued orders to fill up the vacancy for the
standard 6 to 10 with the teachers qualified with B.Ed with
regard to English, Science, Maths and Geography. I state that
the 5th respondent school is a Higher Secondary School and I
was appointed to take classes from 6 to 10. In fact I am a BA
(English), MA(English) with B.Ed.graduate. Therefore
considering my qualification, I was appointed to the said post.
It is pertinent to note that I have passed Teacher Eligibility
Test conducted during August 2013. As such I posses all
qualifications for being appointed as graduate teacher.
3. I state that as per G.O.Ms.No. 100, the vacancies
arises due to the retirement of secondary grade teachers has to
be filled up by B.T.Assistants. Therefore I am appointed as
English teacher. It is pertinent to note that there are 58
teachers working in the said school. There is no B.T.Assistant
in English available in the school to educate the students from
standard 6 to 10.”
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7. The Petitioner’s attempt to present the case without reference to
the staff strength fixed for the school by the Department is overly
simplistic. It is precisely for this reason that any challenge to the
determination of staff strength or the approval of appointments made
against vacancies must be initiated by the school management. In all
private aided schools, including minority-run institutions, the attendance
of students is verified during the month of August in each academic year,
and based on such student strength, the posts for the succeeding
academic year are determined and sanctioned by the authorities.
8. It may be accepted that once the general strength of teachers in
any private aided school is fixed, there would ordinarily be no
requirement to seek further approval for filling up posts already
sanctioned. However, the necessary corollary is that, while assessing
student strength, teacher appointments for the succeeding academic year
are determined solely on the basis of the actual number of students
enrolled. In essence, the appointment of teachers is contingent upon the
continued patronage of the institution by its students.
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9. A Full Bench of the Madras High Court, presided over by P.K.
Misra, J., while examining the scope of determining minimum teacher
strength in private aided schools, in its judgment in Director of
Elementary Education v. Tmt. S. Vigila, reported in 2007 (1) MLJ 199,
issued several directions. One such direction, as contained in paragraph
23(4), reads as follows:
“(4) Even after maintaining the aforesaid ratio by
taking into account the students strength of each individual
standard and additional section, as the case may be, by
keeping in view the teacher-students ratio 1:40 of the entire
school if the teachers strength is required to be increased, the
same has to be allowed, but in no case, the teachers strength
should be less than the number of standards including the
additional sections. If more teachers are thus sanctioned
keeping in view the over all strength of the school, the
authorities of the school should create additional section in
respect of any particular Standard according to the need and
convenience keeping in view the standard of eduction. This
requirement is not only in respect of aided schools or
Government schools, but also in respect of any private
recognised school. In other words, this ratio is to be
maintained for any school which requires recognition.”
10. In the present case, Tmt. A. Pushpabai retired during the
academic year 2014–2015. As per the Government Order, when a teacher
retires in the middle of an academic year, such teacher shall be continued
in service until the end of that academic year, i.e., up to 31st May, in
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order to safeguard the interests of students and to ensure continuity in
academic activity. However, as early as 03.10.2015, four posts of
Secondary Grade Teachers were declared surplus, one of which was the
post held by Tmt. A. Pushpabai.
11. In the above factual context, it is not open to the 5th
Respondent school to appoint a Graduate Teacher against a non-existent
Secondary Grade Teacher post. The decision of the Hon’ble Supreme
Court in Kolawana Gram Vikas Kendra v. State of Gujarat, reported in
(2010) 1 SCC 133, is apposite in point. In that case of a private school, it
was held that, even where the standard teacher strength is prescribed by
the Department in respect of a private school, each individual
appointment nevertheless requires prior approval. The same position
prevails under the Tamil Nadu Recognized Private Schools (Regulation)
Act, 1973. This is because student strength is variable, and in the event
of a decline in enrolment, there may be no necessity to continue a
teacher’s post into the next academic year. If the management of any
school requires additional teachers, it is always open to them to appoint
such teachers and pay their salaries from their own funds, but they
cannot, as a matter of right, claim financial aid from the State.
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12. In the aforesaid decision in Kolawana Gram Vikas Kendra
(supra), the Hon’ble Supreme Court observed as follows:
“….it is clear that all that the Government wants to
examine is as to whether the proposed appointments were
within the frame work of the rules considering the
workload and the availability of the post in that institution
and, secondly; whether the selected candidates had the
necessary qualifications for the subjects in which the said
teachers were appointed. The same applies to the non-
teaching staff also.”
13. Learned counsel for the Petitioner placed reliance on the
following judgments of two Division Benches of this Court:
1.The Director of Elementary Education & Ors. Vs. The
Correspondent & anr. In W.A.No. 1102 of 2020 and batch
cases dated 24.06.2021.
1.2.The Correspondent, Danish Mission Primary School
Vs. The Director of Elementary Education & Ors. in W.A.No.
253 of 2025 dated 29.01.2025.
14. It must be noted that both of the aforesaid cases turned on their
own facts, where there was no dispute with regard to the staff strength
already sanctioned, and the subsequent appointment was made against a
vacancy within such sanctioned strength. It is true that, in the first
judgment, the Division Bench also considered the applicability of the
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Kolawana Gram Vikas Kendra case (supra). In paragraph 5 of the said
judgment, the Division Bench drew the following distinction:
“In this regard, it is worthwhile to notice that the
Division Bench of this Court in the writ appeal referred to
supra (St.Joseph’s RC Primary School case) had considered
the judgment of the Hon’ble Supreme Court in Kolawana
Gram Vikas Kendra’s case (2010 (1) SCC 133) and
distinguished the same on facts holding that factually in that
case, the minimum prescribed qualification and the Circular
issued therein regarding vacancy as per the workload were
challenged. The said judgment was further distinguished on
facts that there was no dispute regarding the notification and
eligibility of the teachers, who have been appointed by the
respective schools. Therefore, the judgment of the Hon’ble
Supreme Court is not applicable to the instant cases also.”
15. While there can be no exception to the bona fide exercise of
power, the same principle cannot apply where the action of the
management is tainted by lack of bona fides. In the present case, the writ
petition has been instituted by the teacher, who has no locus standi, and
who is unlikely to possess the necessary records relating to fixation of
staff strength or suppression of posts due to the reduced student strength.
Had the management itself approached this Court, it would have been
duty-bound to explain the declaration of four surplus posts of
Secondary Grade Teachers, one of which included the post held by
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Tmt. A. Pushpabai. In such circumstances, even if the management
intended to appoint a qualified English Teacher, they were required
either to obtain sanction for a new post—which is not permissible in
view of the amendment to Section 14-A of the Tamil Nadu Recognized
Private Schools (Regulation) Act, 1973, freezing the grant of aid for new
posts from the academic year 1991–92—or to pay the salary of such
teacher from their own funds.
16. The Supreme Court has cautioned that even the right of
administer a school, though flowing from Article 30(1) of the
Constitution, in Re: Kerala Education Bill, reported in 1959 (1) SCR
995, the Court observed as follows:
“46.....The right to administer cannot obviously
include the right to maladminister”
17. In light of the foregoing discussion, the writ petition is liable to
be dismissed and is accordingly dismissed. The connected W.M.P. is
closed. No costs.
12.09.2025
ay/LS
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
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To
1. The State of Tamil Nadu,
Rep by its Secretary,
Department of School Education,
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
College Road,
Chennai- 600 006.
3. The Chief Educational Officer,
Chief Educational Office,
Nagercoil,Kanyakumari District
4. The District Educational Officer,
District Educational Office,
Thuckalay,
Kanyakumari District-629 163.
5. The Correspondent,
St,Mary Goretty Higher Secondary School,
Manalikarai - 629164,
Kanyakumari District.
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DR. A.D. MARIA CLETE, J.
LS
Pre-delivery Judgment made in
12.09.2025
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