IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.619 of 2005 and WPMP.NOs.717 and 1710 of 2005 M.Prabakaran ... Petitioner vs. 1.The Joint Director of School Education (Secondary Education) Chennai-600 006. 2.The Chief Educational Officer, Ramanathapuram. 3.The District Educational Officer, Ramanathapuram. 4.The Secretary, Raja Higher Secondary School, Ramanathapuram. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus directing the respondents 1 to 3 to confirm the appointment of the petitioner as Physical Education Teacher vide appointment order dated 3.4.2002 on the pay of Rs.4500-125-7700/-. For Petitioner : Mr.A.Thiagarajan, Senior Counsel for Mr.S.Ramesh Kumar For Respondents : Mrs.Dakshayini Reddy, for R1 to R3 Government Advocate (Education) O R D E R
The writ petition has been filed for a mandamus directing the respondents 1 to 3 to confirm the appointment of the petitioner as Physical Education Teacher vide appointment order dated 03.04.2002 on the pay of Rs.4500-125-7700/-.
2. According to the petitioner, he was recruited through the Employment Office for the post of Physical Education Teacher in the fourth respondent school to the vacancy caused by the resignation of one A.Nachiyappan. He was appointed in the said post vide appointment order dated 03.04.2002 on the pay scale of Rs.4500-125-7700 subject to approval.
3. The petitioner submits that he is working as Physical Education Teacher continuously without any pay or allowance as his appointment has not been confirmed by the first respondent.
4. The petitioner further submits that pursuant to the appointment order dated 03.04.2002, the fourth respondent school vide letter dated 26.04.2002 addressed to the third respondent seeking confirmation of his appointment. According to him, as per G.O.Ms.No.525 dated 29.12.1997, there can be three Physical Education Teachers and the first respondent also vide order dated 27.11.2002 sanctioned three posts of Physical Education Teachers for the strength of 475 students for the year 2002-2003.
5. The further case of the petitioner is that the second respondent by letter dated 27.09.2002 sought for clarification from the first respondent as regards the appointment of 3 Physical Education Teachers for the strength of 475 students from Classes VI to X. However, the Secretary to Government, Department of School Education categorically clarified and explained the contents of G.O.Ms.No.525 dated 29.12.1997 by his letter dated 09.08.2001 that there can be a maximum of 3 Physical Education Teachers for the strength of students exceeding 300 in Classes VI to X.
6. In addition, the petitioner states that though the second respondent has sanctioned 3 posts of Physical Education Teachers in the School by sanction order dated 27.11.2002, the third respondent failed to confirm and approve the appointment. Also, at the time of his appointment, the total strength of students in Classes VI to X was 540. However, the total sanctioned strength of students was 564. So, he made a representation to the respondents 1 and 2 on 22.03.2004, but, he did not receive any reply and hence he filed the present writ petition.
7. On the other hand, respondents 1 to 3 have filed counter and submitted that the fourth respondent school is a non-minority Educational Institution receiving Government grants and has not followed the rules at the time of appointment. According to the counter, in para III(c) of G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997, it is stated as follows:-
“When the strength in classes VI to X in High Schools exceeds 250 one post of Physical Education Teacher will be sanctioned and for every additional strength of 300, one additional post of Physical Education Teacher will be sanctioned.”
8. In the counter affidavit, it is further stated that the fourth respondent has submitted proposals to the third respondent for approval of the petitioner’s appointment. The strength particulars mentioned in the said proposals are as follows:
6th Class 7th Class 8th Class 9th Class 10th Class Total 75 105 101 133 126 540 From the above total strength, it is seen that the strength for classes VI to X mentioned in the proposal is only 540.
9. The counter further states that as per the Government Order in G.O.Ms.No.525 School Education (D1)Department, dated 29.12.1997, two physical education teacher posts are eligible if the strength of students exceeds 550 (250+300 =550) for classes VI to X. Due to fall in strength, this institution is not eligible for the second post of Physical Education Teacher. It is further stated that the petitioner has been appointed by the fourth respondent in the surplus post against the Government Orders and that when the strength in classes VI to X in the High Schools exceeds 250, one post of Physical Education Teacher will be sanctioned and for every additional strength of 300, one additional post of Physical Education Teacher will be sanctioned, subject to a maximum of three.
10. It is further submitted that as per the Government Letter No.4620/D1/2000 dated 09.08.2001, the orders were given effect from 01.06.1998 and that before 01.06.1998, if three posts of Physical Education Teachers were allowed based on the students strength, then the persons working in the Physical Education Teacher post cannot be affected and those persons can be allowed to work continuously. However, the posts arising out of reasons such as resignation, voluntary retirement or retirement from service or expiry, those vacancies should not have been filled up and those posts should be considered as “Deleted”. In the case on hand, the vacancy arose due to resignation of one A.Nachiappan and hence that post cannot be filled up by the fourth respondent.
11. In the counter affidavit, it is also stated that the first respondent is not the competent authority as far as approval of appointments are concerned and that the fourth respondent has not sought any clarification from the third respondent for the post of Physical Education Teacher.
12. Heard Mr.A.Thiagarajan, learned Senior Counsel for the petitioner and Mrs.Dakshayini Reddy, learned Government Advocate (Education) for respondents 1 to 3.
13. The learned Senior counsel for the petitioner would contend that the first respondent had sanctioned three posts of Physical Education Teacher for the strength of 475 students for the year 2002-2003 vide its sanction order dated 27.11.2002. He also submitted that at the time of the petitioner’s appointment, the total strength of students from 6th standard to 10th standard was 540 and the total strength of XI and XII standards was 386. He also submits that the long absentees’ student names were not included and accordingly the total sanctioned strength of the students was 564. As per the proposal, there is shortage of 10 students for the sanction of the second post of Physical Education Teacher.
14. Per contra, learned Government Advocate contended that as per G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997, it is clearly mentioned that two Physical Education Teacher posts are eligible if the strength of students exceeds 550(250+300=550) for standards VI to X and hence due to fall in strength, the fourth respondent is not eligible for the second post of Physical Education Teacher. She also submitted that the petitioner has been appointed in the surplus post against the Government Order. She also stated that if the strength of the students in classes VI to X in the High Schools exceeds 250, one post of Physical Education Teacher will be sanctioned and for every additional strength of 300, one additional post of Physical Education Teacher will be sanctioned, subject to a maximum of three. She also contended that before 01.06.1998, if three posts of Physical Education Teacher were allowed based on the students strength, then the persons working in the Physical Education Teacher post cannot be affected and those persons were allowed to work continuously.
15. I have considered the submissions made on either side and perused the relevant records and Government Orders.
16. It is seen from the records that a post fell vacant due to the resignation of one Nachiappan on 13.12.2001 and to fill up that post, permission was sought for. The second respondent, by its order dated 02.04.2002 granted permission to the fourth respondent school to fill up that vacancy and thereafter the fourth respondent school has appointed the petitioner on 03.04.2002. It is also seen from the records that vide proceedings dated 27.09.2002, the third respondent submitted to the Joint Director, that student strength was 540 for 6th to 10th standards for the academic year 2001-2002 and he sought clarification whether Higher secondary School strength can also be taken into consideration while sanctioning the third post of Physical Education Teacher for the school because the Higher Secondary School strength is 386 and together added with 6th standard to 10th standard, the strength is 926. However, in the letter dated 09.08.2001 of the Government to the Director of School Education, it is stated that if the students strength of classes VI to X in the High Schools exceeds 250, one post of Physical Education Teacher will be sanctioned and for every additional strength of 300, one additional post of Physical Education Teacher will be sanctioned subject to a maximum of three and the said order comes into effect from 01.06.1998. Hence before 01.06.1998, if three posts of Physical Education Teacher were allowed based on the students strength, then the persons working in the Physical Education Teacher post cannot be affected and those persons can be allowed to work continuously.
17. A perusal of the records would reveal that having found that a vacancy has arisen due to the resignation of one A.Nachiappan, the Chief Educational Officer, the 2nd respondent herein, by its order dated 02.04.2002 granted permission to the 4th respondent School to fill up one post of Physical Education Teacher. Subsequently, the petitioner was appointed in the said post vide appointment order dated 03.04.2002. Though the 2nd respondent has sanctioned 3 posts of Physical Education Teachers in the 4th respondent School for the strength of 475 students for the year 2002-2003, by sanction order dated 27.11.2002, the 3rd respondent had not confirmed/approved the petitioner’s appointment till date. It could be seen that the respondents were aware of the Government Order in G.O.Ms.No.525 School Education (D1) Department dated 29.12.1997. In such circumstances, it is not fair on the part of the respondents in not confirming the appointment of the petitioner, when they have already sanctioned three posts of Physical Education Teachers for the 4th respondent School against the student strength of 475.
18. In my considered opinion, the appointment of the petitioner has to be considered for approval, provided if the petitioner satisfies all other requirements. Accordingly, the writ petition is allowed with a direction to the third respondent to consider the proposal sent by the fourth respondent school and pass appropriate orders on merits and in accordance with law. This exercise shall be completed within a period of eight (8) weeks from the date of receipt of a copy of this order. No costs. Consequently, connected WPMP.Nos.717 and 1710 of 2005 are closed.
nvsri
To
1.The Joint Director of School
Education (Secondary Education)
Chennai-600 006.
2.The Chief Educational Officer,
Ramanathapuram.
3.The District Educational
Officer, Ramanathapuram.
4.The Secretary,
Raja Higher Secondary School,
Ramanathapuram