Sr.Arockia Mary v. State Of Tamil Nadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.03.2017 CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P(MD)Nos.3614 of 2017 and W.M.P(MD)No.2914 of 2017 Sr.Arockia Mary ... Petitioner vs.
1. The State of Tamil Nadu, Through its secretary to Government, Department of School Education, Fort. St. George, Chennai - 9
2. The Director of School Education, DPI Campus, College Road, Chennai - 6
3. The District Educational Officer, Dindigul.
4. The Correspondent, Our Lady of Lourdes'Girls' Higher Secondary School, Dindigul -2.
...Respondents
Petition filed under Article 226 of the Constitution of India, praying for the issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 3rd respondent in his proceedings in O.Mu.No.4837/A3/09, dated 10.12.2009 and quash the same as illegal and consequently direct the respondents to approve the petitioner appointment in 4th respondent school as Record Clerk from the date of joining on 18.06.2009 and to pay all the service and monetary benefits by sanctioning grant within stipulated time.
For Petitioner : Mr.T.A.Ebenezer For R1 to R3 : Mr.A.K.Baskarapandian Special Government Pleader
ORDER
This writ petition has been filed, seeking to quash the order of the 3rd respondent passed in O.Mu.No.4837/A3/09, dated 10.12.2009, vide which, the 3rd respondent has returned the proposal of the 4th respondent school quoting G.O.Ms.No.115, School Education Department, dated 30.05.2007. The petitioner has also sought for direction to the respondents to accord approval for her appointment as Record Clerk in the 4th respondent school w.e.f. 18.06.2009 with all service and monetary benefits. 2.Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents 1 to 4.
3.The petitioner was appointed as Record Clerk in the 4th respondent school w.e.f. 18.06.2009, which is a Christian aided minority school. The 4th respondent school forwarded the proposal of approval of appointment on 23.04.2009. The eligibility of the petitioner to the post of Record Clerk is not in dispute. 4.The learned counsel for the petitioner would submit that the school is governed by the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and the Rules 1974 framed thereunder. Section 19 stipulates the qualifications and the conditions of service of employees in private schools. Section 20 speaks about the conditions of appointment. In addition to that, the Tamil Nadu Minority Aided Schools (Recognition and Payment of Grant) Rules, 1977 also stipulates the rules in respect of Administration of Aided Minority School.
Annexure - III of Rule 8 provides for the sanctioning and appointment of Library Clerk, Record Clerk and Laboratory and Library Assistants, Peons, Watchman, Waterman, Gardener, Sweeper and Scavenger in the Minority Aided Schools. 5.It is seen that the Government of Tamil Nadu vide G.O.Ms.212 dated 29.11.2001 imposed ban on appointment of different categories of post, excepting Police, Doctors and Teachers. The ban was lifted vide G.O.14 dated 07.02.2006 enabling the fulfillment of nonteaching staff. G.O.Ms.115 dated 30.05.2007, directed filling up of certain categories of non-teaching staff by appointment and the remaining categories of non-teaching staff to be outsourced. Vide G.O.Ms.No.189 dated 29.07.2009, the vacancies of Junior Assistant and Office Assistant are to be filled upon on a priority basis. Subsequently, G.O.203 dated 23.
07.2010 mandated that certain categories of non-teaching staff like Junior Assistant, Librarian, Laboratory Assistant, Record Clerk and Office Assistant are to be approved from the date of appointment.
6.The learned counsel for the petitioner submitted that once the post is sanctioned by the Director under Rule 15(1) of the Rules, sanction of grant ought to have been done as per Rule 11(2) of the Rules and there is no need to get prior permission from any authority to fill the vacancies that would arise in the sanctioned post. Unless the State Government suitably amends the provisions of the Act and the Rules making it mandatory to obtain prior permission for filling up of those sanctioned non-teaching posts, the Government could not issue Government Orders. 6.1.This Court is in entire agreement with the said submission.
19 and 20 of the Act read with Rule 15 of the Rules. 6.2.The Hon'ble Division Bench of this Court in The Manager, Concordia High and Higher Secondary Schools V. Tmt.S.Christy and Others, reported in 2013 Writ L.R. 691 held as under:
"4. In considering the contentions as put forth in the writ petition, learned single Judge pointed out to the judgment passed by this Court in W.A.Nos.93 and 94 of 2009 decided on 06.01.2010 that for any sanctioned post, no prior approval is necessary. In respect of proceedings noting the availability of posts, the learned single Judge pointed out that there is no necessity for prior approval. In any event, the appointment without getting approval could not be a ground for not considering the writ petitioner's plea"
6.3.A similar question arose for consideration in the case of S.Rasheetha Banu V. State of Tamil Nadu, rep. by its Secretary to Government, Chennai and others, reported in (2012) 4 MLJ 198 wherein this Court has categorically held that "if a person is appointed in a sanctioned post in the Private Aided Minority School, the approval cannot be rejected for the purpose of grant on the ground that no prior permission was obtained before appointment". It is useful to extract paragraph 7 of the said order in this regard :
"7. The issue involved in this Writ Petition was already considered by a Division Bench of this Court in W.A.No.1263 of 2001, dated 22.1.2004. In the said Judgment, it is held that if a person is appointed in a sanctioned post, the approval of appointment cannot be rejected and if there is fall in strength and the post become surplus, after granting approval of the post, the said teacher along with post could be transferred/deployed to a needy school. The said Judgment of the Division Bench was followed in W.P.(MD)No.11353 of 2008, dated 11.9.2009. As against the said order dated 11.9.2009, the department preferred W.A. (MD)No.703 of 2009. A Division Bench of this Court, by Judgment dated 1.2.2011, dismissed the said Writ Appeal."
7. The question of approval to the appointment of non-teaching staff in the sanctioned post after the introduction of G.O.Ms.No.115 and G.O.203 came to be considered by this Court and the Madurai Bench of Madras High Court quashed G.O.Ms.115 dated 30.05.2007 and G.O.203 dated 23.07.2010 vide order dated 15.03.2016 passed in W.P.(MD) Nos.11481 of 2008, etc. batch. It will be appropriate to extract the operative portion of the order as under:- "38. In the result, for the details reasons mentioned above, (i) All these writ petitions are allowed.
(ii) Impugned G.Os., namely, G.O.Ms.No.115, School Education Department, dated 30.05.2007 and G.O.Ms.No.203, School Education Department, dated 23.07.2010 and Government Letter No.8884/D1/2011-2, dated 09.07.2012, are quashed.
(iii) The impugned orders of the DEOs/DEEOs refusing to approve of the appointments of various non-teaching posts in these writ petitions are set aside and the official respondents are directed to approve of those appointments of the non-teaching staff in the Private Aided Schools concerned in these writ petitions and to sanction grant.''
8. In view of the above stated position and also in the light of the judgment of this Court in W.P.(MD) Nos.11481 of 2008, etc. batch (stated supra), this Court is of the view that the impugned order is liable to be set aside.
9. Accordingly, the impugned order is set aside and the 3rd respondent is directed to accord approval to the appointment of the petitioner as Record Clerk in the 4th respondent school w.e.f. 18.06.2009 with all monetary and other service benefits, within a period of four weeks from the date of receipt of a copy of this order.
In the result, this Writ Petition is allowed. No costs. Consequently, W.M.P(MD)No.2914 of 2017 is closed. Sd/- Assistant Registrar(RTI) /TRUE COPY/ Sub Assistant Registar To
1. The Secretary to Government, State of Tamil Nadu, Department of School Education, Fort. St. George, Chennai - 9
2. The Director of School Education, DPI Campus, College Road, Chennai - 6
3. The District Educational Officer, Dindigul +1 cc to M/R.T.A.EBENEZER, Advocate, SR.NO:11723 NBI SVA/PM/PN/21.03.2017/4P/5C W.P(MD)No.3614 of 2017 01.03.2017(2/2)