Tmt.R.Shymala v. The Government Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.03.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAJA W.P. Nos.6861 to 6865 2018 and W.M.P.Nos.8502 to 8506 of 2018 R.Shymala, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Petitioner [in W.P.No.6861 of 2018] G.Selvam, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Petitioner [in W.P.No.6862 of 2018] C.H.Srinivasalu, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Petitioner [in W.P.No.6863 of 2018] K.Sarammal, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Petitioner [in W.P.No.6864 of 2018] T.Rajendran, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Petitioner [in W.P.No.6865 of 2018] Vs.
1.The Government of Tamilnadu, Rep. by its Secretary, Department of School Education, Fort St.George, Chennai - 600 009.
2.The Director of School Education, DPI Campus, College Road, Chennai - 600 006.
3.The Chief Educational Officer, The Office of the Chief Educational Officer, Saidapet, Chennai - 600 015.
4.The District Educational Officer, The Office of the District Educational Officer, Chennai North, Chennai - 600 008.
5.The Correspondent, Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007.
.. Respondents [in all W.Ps.] COMMON PRAYER: Writ Petitions have been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents 1 to 4 to accord approval to the petitioner, as Scavenger, Watchman, Gardener, Sweeper and Office Assistant respectively in Bentinck Higher Secondary School for Girls, Vepery, Chennai - 600 007 w.e.f. 18.04.2016, with all service and monetary benefits.
For Petitioner : Dr.Fr.A.Xavier Arul Raj [in all W.Ps.] Senior Counsel for M/s.Father Xavier Associates For Respondents 1 to 4 : Mr.C.Munusamy [in all W.Ps.] Special Government Pleader C O M M O N O R D E R By consent, these Writ Petitions are taken up and disposed of at the stage of admission itself.
2. Challenging the impugned action of the State in returning the Proposal submitted by the respective Minority Schools, seeking to approve the appointments made by them against the sanctioned vacancies in the Non-Teaching Posts, these Writ Petitions have been filed.
3. It is submitted by the learned Senior Counsel for the petitioners that, as and when vacancies arose against the regular & sanctioned posts relating to Non-Teaching staff in various cadres, the Aided Minority Schools concerned had filled up the same by appointing suitable hands without prior permission to fill up those vacancies and, while this practice
continued till the academic year 2000-2001 with the Government according approval to such appointments regularly, now, by way of the present impugned proceedings, the Education Department have returned the proposals sent by the Minority Institutions, seeking approval for the appointment of Non-Teaching Staff, and such exercise is arbitrary and absolutely unwarranted.
4. The issue involved in these Writ Petitions for filling up of vacancies against the sanctioned strength of Non-teaching staff by the Minority Institutions is no longer res integra, for, a Division Bench of this Court, even three years ago, in P.Ravichandran v. State of Tamil Nadu and others reported in [(2013) 7 MLJ 641], has settled that issue and, following the said judgment, I have also, in a batch of Writ Petitions, i.e., in W.P.(MD)Nos.14115 to 14119 of 2016 etc. (batch cases), (decided on 19.08.2016), ordered the official respondents therein to accord approval for filling up of the vacancies against sanctioned posts of non-teaching Staff by the Private Aided Schools. For better appreciation, relevant portions of the order passed by me are extracted below:- "2.
With regard to the legal position in respect of minority institutions, whether prior permission should be obtained before filling up any vacancy in a sanctioned Post, the Honourable Division Bench of this Court even three years ago, in P.Ravichandran v. State of Tamil Nadu and others reported in (2013) 7 MLJ 641, has settled the issue. It is relevant to extract paragraph Nos.
17. A Division Bench of Madurai Bench of this Court in W.A(MD)No.462 of 2006, judgment, dated 01.12.2006, considered the scope of Rule 11(1) of the Tamil Nadu Private Colleges(Regulation) Rules, 1976 relying upon the earlier order passed on 13.08.2006, and held that for filling up an existing post in a Private Aided College, no prior approval is necessary as any such appointment shall be subsequently approved by the Department, and at that point of time the Department would have an opportunity to consider the availability of such post and rejection of approval on the ground that no prior approval was obtained before appointment, was set aside. Same is the view taken in the following orders of this Court .
(i) W.P.No.30618 of 2005, order dated 21.09.2005;
(ii) W.P.No.28396 of 2004, order dated 29.03.2006;
(iii) W.A.Nos.92 & 93 of 2008, judgment dated 06.01.2010;
(iv)W.P(MD)No.174 of 2009, order dated 27.04.2010;
(v) W.A.Nos.140, 811/2006 & 805/2007, judgment dt. 21.10.2010;
(vi)W.A.No.2858 of 2010, judgment dated 21.03.2011;
(vii) W.A(MD)Nos.1088 of 2011, judgment dated 19.10.2011;
(viii) W.A.Nos.2345 of 2011, judgment dated 05.03.2012;
(ix) Dr.S.Sukumaran v. State of Tamil Nadu, (2012) 5 MLJ 670 rendered by one of us (NPVJ); and (x) W.A.No.474 of 2013, judgment dated 03.04.2013.
Thus, the issue regarding seeking prior permission for filling up the vacant post in aided College within the academic year was already settled in series of decisions and all the above said orders are implemented by the respondents 1 and 2. In such circumstances, it is not open to the respondents to again and again contend that only after getting prior permission from the Director of Collegiate Education, vacant sanctioned posts can be filled up by the management.
.....
20. In the light of the above findings as well as the decisions, we conclude this judgment in the following manner:
(1) There is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.
(2) If the appointment made by the College Committee in the sanctioned vacant post is in violation of any of the statutory provision, it is open to the Regional Joint Director of Collegiate Education to deny grant-in-aid to the said person appointed in the vacant post.
(3) The teaching staff appointed must be fully qualified, whose qualification is approved by the University to which the college is affiliated. Insofar as the nonteaching staff are concerned, the candidate must possess the qualification prescribed by the Government.
(4) The College Committee while filling up the vacant post, should follow the procedures stated in Rule 11(1A) to 11(4) (ii).
(5) If there is no rival candidate for any post, the appointment is bound to be approved for the purpose of payment of pay and allowances, by the Regional Joint Director of Collegiate Education.
The writ appeal is disposed of with the above directions. No Costs.
3.A cursory reading of the aforementioned Honourable Division Bench judgment in (2013) 7 MLJ 641, clearly shows that the issue raised in the present Writ Petitions, is no longer res integra, because the Honourable Division Bench of this court in the aforementioned judgment has also made it clear that there is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.
4. Therefore, the issues raised in the present Writ Petitions having been settled by this Court, I have no hesitation to accept the prayer made by the petitioners.
5. In the result, (i) All the Writ Petitions are allowed.
(ii) The impugned orders are set aside.
(iii) The respective respondents are directed to approve the appointments of nonteaching staff in the Private Aided Schools in these cases and to sanction grant, within a period of four weeks from the date of receipt of a copy of this order."
5. Thus, the issue is well settled now that any school, either minority/private/aided or unaided, is entitled to fill up the vacancy arising on account of promotion, retirement, removal, dismissal etc., against a sanctioned post already approved by the school authorities, without even obtaining prior permission from the Government. In the cases on hand, admittedly, the writ petitioners have been appointed against vacancies relating to sanctioned posts as Non-teaching staff in various cadres and therefore, by following the above cited case laws, this Court hereby directs the respective respondents to approve the appointments of the Non-teaching staff by the Private Aided Schools and to sanction the grant within a period of four weeks from the date of receipt of a copy of this order. 6.In fine, for the reasons stated above, the Writ Petitions are allowed. No Costs. Consequently, connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar sri To 1.The Secretary, Government of Tamilnadu, Department of School Education, Fort St.George, Chennai - 600 009.
2.The Director of School Education, DPI Campus, College Road, Chennai - 600 006.
3.The Chief Educational Officer, The Office of the Chief Educational Officer, Saidapet, Chennai - 600 015.
4.The District Educational Officer, The Office of the District Educational Officer, Chennai North, Chennai - 600 008.
5.the correspondent, Bentiwek Higher Secondary School for girls, Vepery, chennai 600 007.
+6cc to Mr. Advocate, S.R.No.23231, 23232, 23229, 23230, 23228 +1cc to the Government Pleader, S.R.No. 23938 W.P. Nos.6861 to 6865 2018 and W.M.P.Nos.8502 to 8506 of 2018 nrl(CO) TR(11/04/2018)