Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
04. 07.2014 CORAM THE HONOURABLE MR.JUSTICE.R.MAHADEVAN W.P(MD)No.1469 of 2009 **** A.Suganthi Vethavalli ... Petitioner Vs 1.The District Elementary Educational Officer, Tirunelveli. 2.The Assistant Elementary Educational Officer, Radhapuram, Tirunelveli District. 3.The Correspondent, T.D.T.A. Primary & Middle Schools, Kariachuthupudhur, Radhapuram, Tirunelveli District. ... Respondents This Writ Petition has been filed under Article 226 of the Constitution of India praying for Writs of Certiorarified Mandamus to call for the records of the first respondent in his proceedings O.Mu.No.4243/A1/2008 dated 18.08.2008 and quash the same and direct the respondents to approve the appointment of the petitioner as a Secondary Grade Teacher from the date of appointment. i.e.10.12.1998 and confer all the consequential benefits. !For petitioner : Mr.V.Paneer Selvam ^For R.1&2 : Mr.J.Gunaseelanmuthiah Government Advocate For R.3 : Mr.M.Joseph Thatheus Jerome ******* :ORDER
This Writ Petition has been filed praying for a Writ of Certiorarified Mandamus to call for the records of the first respondent in his proceedings O.Mu.No.4243/A1/2008 dated 18.08.2008 and quash the same and direct the respondents to approve the appointment of the petitioner as a Secondary Grade Teacher from the date of appointment. i.e.10.12.1998 and confer all the consequential benefits.
2. The short facts for disposal of this Writ Petition is set out hereunder:- On account of a vacancy caused in the third respondent school, due to the transfer of one Mr.A.Jesudasan, the petitioner came to be appointed as a Secondary grade teacher in the third respondent school, on 10.12.1998. The third respondent school is a minority institution and therefore, it did not obtain prior permission to fill up the vacancy, caused in the third respondent school. However, the petitioner's appointment was not approved by the respondents. She shoot a representation to the respondents to the effect that as per the then existing Government order, all the appointments made during the year 1998-1999 have been duly approved by the respondents and the petitioner alone has been secluded. It is further averred in the affidavit that the Hon'ble Division Bench has upheld G.O.Ms.No.525, Education Department, dated 29.12.1997, in the year 2001, till such time, the appointments made as per the old Government order have been approved, because of the interim order granted by this Court. Even as per the latest Government order, which has now been ultimately interpreted by the Full Bench of this Court, the petitioner is entitled for approval. She also claims that the other persons, who were appointed along with the petitioner have been approved. Inspite of the fact that the petitioner fulfills the eligibility criteria, the respondents has rejected the claim of the petitioner. Hence, the petitioner is before this Court, for the relief stated earlier.
3. The learned counsel appearing on behalf of the petitioner would submit that the issue in question has been elaborately dealt with by this Court and this Court approved the claim of the respective school and since the petitioner also stands in a similar footing, there is no justification to thwart the claim of the petitioner.
4. A detailed counter affidavit has been filed explaining the circumstances under which the petitioner's claim has been rejected by the respondents. Mr.J.Gunaseelanmuthiah, learned Government Advocate vehemently argued that when the third respondent knowing fully well that there is a surplus post, they unilaterally appointed the petitioner in the place of a surplus teacher without getting approval from the respondents and therefore, as per the Government Rules in force, the grant is not permissible, as per Rule 6(2) of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977. But, for the mistake committed by the third respondent school, the Government cannot be made liable, besides, for the irregular appointment, like the case of the petitioner, it would affect the public exchequer and therefore, viewed from any angle, the impugned order is sustained in the eye of law.
5. I have gone through the counter affidavit and perused the material available on record. A similar issue came up for consideration before this Court and the Full Bench of this Court in the decision made in W.A.No.313 of 2006 dated 4.11.2006 reported in 2006
(5) CTC385(para
23) (Director of Elementary Education, Chennai-6 and others v. S.Vigila and another) held as follows, ".23. Keeping in view the various relevant aspects, we feel that G.O.Ms.No.525, dated 29.12.1997 should be interpreted in the following manner:
(1) The ratio of students-teacher strength as indicated in the G.O. Should be primarily considered by taking each individual standard/section as a unit.
(2) The minimum strength of teachers required obviously should not fall below the number of Standards/Section in a school. In other words, if there are five standards, obviously the minimum number of teachers should be five, out of which one would be the Headmaster.
(3) If the students' strength in a particular Standard exceeds 60, at that stage, an additional section is required to be created requiring the sanction of a second teacher and the strength reaches 100, the post of a third teacher is required.
(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 education. This requirement is not only in respect of Aided Schools or Government Schools, but also in respect of any Private Recognized School. In other words, this ratio is to be maintained for any school which required recognition. It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the Constitution.".
4. The rejection of approval of similar teacher on the ground that in some other Schools of this Management excess teachers are available and the petitioner's appointment cannot be approved unless the excess teachers are deployed to a needy vacancy was considered by this Court in the order made in W.P.No.4372 of 2006, by order dated 01.09.2006, wherein, this Court repelled such stand taken by the respondents. The said order was followed in W.P.Nos.10350 to 10352 of 2006, order dated 08.12.2006. The said order passed in W.P.No.10351 of 2006 was challenged in W.A.292 of 2007 and the same was dismissed by the Division Bench on 02.08.2007. The orders in W.P.Nos.10350 & 10352 of 2006 were also confirmed in W.A.No.194 of 2007 and W.A.No.205 of 2007, dated 09.06.2007. The said orders were also implemented.".
6. In view of the said settled position, there is no justification to deny the approval sought for by the petitioner, as the petitioner was appointed in the sanctioned vacancy and the school in which she was appointed is eligible to retain the said post and the petitioner is fully qualified for being appointed in the said post.
7. Applying the said principles to the facts of this case, the impugned order dated 10.12.1998 passed by the first respondent is set aside and the respondents are directed to approve the appointment of the petitioner from the date of her appointment with salary and other benefits. The respondents shall pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. With the above direction, this writ petition is allowed. No costs. To 1.The District Elementary Educational Officer, Tirunelveli. 2.The Assistant Elementary Educational Officer, Radhapuram, Tirunelveli District.