(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the order passed by the third respondent in O.Mu.No.1493/Aaa 3/06 dated 5/1/2007 and quash the same and direct the third respondent to approve the appointment of the petitioner as Watchman with all consequential benefits from the date of appointment.)
ORDER
1. The petitioner was appointed as a watchman in the fourth respondent Higher Secondary School, an aided School covered by the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 on 11/6/2004. He was appointed against the vacancy that arose due to the retirement of one Thiru. Ramasamy.
2. The School sent proposals on 28/3/2005 for approval of the appointment of the petitioner as Watchman. But the third respondent returned the proposal in the impugned order dated 5/1/2007 on the ground that filling up of the vacancies relating to non-teaching staff in an aided School are under consideration by the High Level Committee appointed by the Government.
3. The petitioner has filed this writ petition to quash the order dated 5/1/2007 of the third respondent and has sought for a direction to approve his appointment as watchman from the date of his appointment and for consequential benefits.
4. The third respondent filed counter affidavit on his behalf and also on behalf of the respondents 1 and 2 refuting the allegations. It is averred that the Government issued G.O.Ms.No.212 (Personnel and Administrative Reforms) Department dated 28/11/2011 imposing ban on recruitment. Later, the ban was lifted in G.O.Ms.No.14 P and AR Department dated 7/2/2006. The respondents have also relied on G.O.Ms.No.115 School Education (D2) Department dated 30/5/2007 that gives instructions and guidelines for the appointment of non-teaching post. As per the said G.O., the post of Watchman have to be filled through out-sourcing method.
5. It is further averred that the petitioner was appointed during the ban period and hence the third respondent rejected the proposal based on G.O.Ms.No.212.
6. The respondents have stated in paragraph 5 of the counter affidavit that the Educational Department of the Tamil Nadu Government has issued instructions on 25/5/2006 that the ban was not lifted for filling up the post of non-teaching post in aided Schools. Based on the said letter of the Government, the Director of School Education sent a letter dated 21/8/2006 to the Chief Educational Officer that the Schools cannot fill up the non-teaching post in view of the letter dated 25/5/2006 of the Government.
7. Heard both sides.
8. The fourth respondent called for an application through the tamil newspaper "Daily Thanthi" on 17/3/2004 to fill up the vacancy of watchman that arose due to the retirement of one Ramasamy. The petitioner applied for the same and he was selected and appointed by the fourth respondent on 11/6/2004.
9. The fourth respondent sent proposals for approval of the appointment to the third respondent and the same was returned by the impugned order dated 5/1/2007 of the third respondent.
10. The respondents have filed a counter affidavit and it is stated therein that the third respondent returned proposals in view of G.O.Ms.No.212 P and AR Department, dated 29/8/2011 imposing a ban on recruitment.
11. Already this Court has held in the order dated 6/3/2009 in W.P.No.1722 of 2009 that G.O.Ms.No.212 (Personnel and Administrative Reforms – P) dated 29/11/2001 imposing ban on recruitment could not be applied to the aided Schools, which is governed by the Tamil Nadu Private Schools (Regulation) Act. Paragraph 12 of the said order is extracted in this regard:-
"No doubt G.O.Ms.No.212 (Personnel and Administrative Reforms [P] Department dated 29/11/2001, a ban has been imposed for appointment. However, the said ban would relate only to Government employments and it has not relevance to the appointments made by the private Schools. Further the ban imposed in the said Government order had been cancelled by the subsequent Government Order namely G.O.Ms.No.14 (Personnel and Administrative Reforms (P) Department) dated 7/2/2006. Further more, G.O.Ms.No.115, School Education (D 2) Department, dated 30/5/2007 does not prohibit the filling up of Lab Assistants in private Schools. Perhaps the second respondent is under the misconception that G.O.Ms.Nos.212 and 115 prohibit the appointment in private Schools."
12. The appeal preferred against the said order in W.A.No.267 of 2009 was rejected on 12/8/2009.
13. Hence, the reason given by the third respondent for returning the proposal cannot be sustained.
14. Likewise, the reliance placed on G.O.Ms.No.115 in the counter affidavit cannot also be sustained, since G.O.Ms.No.115 was issued very much later to the appointment of the petitioner. Hence the G.O., could not be applied to the case of the petitioner. The Government letter dated 25/5/2006 and the consequential letter dated 21/8/2006 of the Director of School Education stating that the vacancies of non-teaching post in aided School shall not be filled up were quashed by this Court by various writ proceedings. I have followed those judgment in my order dated 17/7/2012 made in W.P.(MD) No.1410 of 2007.
15. For the aforesaid reasons, this writ petition is allowed and the impugned order is quashed. The third respondent is directed to approve the appointment of the petitioner as watchman from the date of his appointment and to pay all monetary benefits. The said exercise has to be carried out within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petitions are closed.