Ulagappar Higher Secondary v. The Director Of School

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.11.2016 CORAM :

THE HONOURABLE DR.JUSTICE S.VIMALA Writ Petition (MD) No.22656 of 2016 Ulagappar Higher Secondary School, Ramachandrapuram, Ramachandrapuram Post, Thirumayam Taluk, Pudukottai District, rep.by its Secretary C.Ravi.

.... Petitioner Vs.

1.The Director of School Education, College Road, Egmore, Chennai.

2.The Chief Educational Officer, Pudukottai.

3.The District Educational Officer, Aranthangi, Pudukottai District.

.... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the respondents to approve the appointment of Thiru.N.Suresh, Watchman in petitioner school i.e. Ulagappar Higher Secondary School Ramachandrapuram and to sanction grant by considering the petitioner's representation dated 31.08.2016. For Petitioner :Mr.R.P.Ramachanthiran For Respondents :Mr.A.Muthukaruppan Additional Government Pleader.

ORDER

This writ petition has been filed, seeking a direction to the respondents to approve the appointment of N.Suresh, Watchman in the petitioner school i.e., Ulagappar Higher Secondary School, Ramachandrapuram and to sanction grant by considering the petitioner's representation dated 31.08.2016. 2.Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. By consent, the writ petition itself is taken up for final disposal at the stage of admission.

3.The petitioner school appointed one N.Suresh as Watchman with effect from 25.07.2016 which is a Government aided private higher secondary school. The petitioner sent a letter to the third respondent dated 31.08.2016 requesting to approve the appointment of the said N.Suresh. The third respondent sent a letter dated 20.09.2016 to the petitioner school, directing to produce the order of the first respondent to fill up the vacancy by direct appointment.

4.The learned counsel for the petitioner would submit that the petitioner school is governed by the Tamil Nadu Recognized Private Schools (Regulation) Rules 1974 framed thereunder and as per Rule 11(2) of the said Rules, no prior permission is required from any authority to fill up the vacancy of a non teaching staff, which would arise in a sanctioned post. 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 non-teaching staff. G.O.Ms.115 dated 30.05.2007, directed filling up of certain categories of nonteaching staff by appointment and the remaining categories of nonteaching staff by outsourcing. 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, the 4th respondent is bound to sanction grant 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 nonteaching posts, the Government could not issue impugned Government Orders.

6(1).This Court is in entire agreement with the said submission. Since there is no such provision in the Act and the Rules to seek prior permission, the act of the third respondent in not approving the appointment of Watchman is in gross violation of the provisions of Sections 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 nonteaching 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 present writ petition, has to be allowed.

9.Accordingly, this Writ Petition is allowed. The third respondent is directed to approve the appointment of N.Suresh, Watchman in the petitioner school i.e. Ulagappar Higher Secondary School, Ramachandrapuram and to sanction grant, within a period of two weeks from the date of receipt of a copy of this order. No costs.

Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar To 1.The Director of School Education, College Road, Egmore, Chennai.

2.The Chief Educational Officer, Pudukottai.

3.The District Educational Officer, Aranthangi, Pudukottai District.

+1 CC to M/s.R.P.RAMACHANTHIRAN, Advocate, SR No.73112 MJ PSM/BS-MR/06.02.2017/4P/5C Writ Petition (MD) No.22656 of 2016 25.11.2016