IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03-11-2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NOS.7715 AND 19381 of 2004 AND W.P.M.P.NO.23317 OF 2004 P.Babu ... Petitioner in both W.Ps Versus 1. The District Educational Officer Sankari Salem District. 2. The Secretary, Senguntha Mahajuana Higher Secondary School, Tharamangalam 636 502 Salem District. .... Respondents 1 and 2
in W.P.No.7715 of 2004
and Respondents 2 and 3
in W.P.No.19381 of 2004
1. State of Tamil Nadu
rep.by its Secretary to Government
Personnel & Administrative Reforms
(P) Department, Fort St.George,
Chennai 600 009. …. Respondent No.1 in
W.P.No.19381 of 2004
For Petitioner :: Mr.V.Sanjeevin
For Respondent :: Mr.C.Mani Bharathi,G.A.
No.1 in both W.Ps and for Respondent No.2 in W.P.No.19381/2004 For Respondent :: Mr.K.Balamurugan No.2 in WP.NO.7715/2004 and for R.3 in W.P.No.19381/2004
Prayer: The Writ Petition in W.P.No.7715 of 2004 is filed under Article 226 of The Constitution of India seeking for the relief of issuance of a writ of certiorari to call for the records of the first respondent issued in Ref.Roc.No.3499/A3/2004 dated 27.2.2004 and consequential order of the second respondent issued in Ref.No.763/2004 dated 1.3.2004 and quash the same.
The Writ Petition in W.P.No.19381 of 2004 is filed under Article 226 of The Constitution of India seeking for the relief of issuance of a writ of certiorari to call for the records of the first respondent relating to the G.O.Ms.No.212 Personnel and Administrative Reforms (P) Department, dated 29.11.2001 and quash the same.
COMMON ORDER
The petitioner in these cases was appointed as Waterman in the 2nd Respondent School, which is an aided School governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act. For the sake of convenience, the parties are referred to as arrayed in W.P.No.7715 of 2004. It appeared that there was a vacancy of the post of Waterman, which is a non-teaching post in the 2nd Respondent School within the sanctioned strength which occurred in December 2001. The 2nd Respondent School has sought for permission from the District Educational Officer – 1st Respondent to fill up the said vacancy on 20.12.2001 and that permission was granted by the 1st Respondent in his proceedings dated 9.1.2002. It was thereafter the 2nd Respondent School has called for list of suitable candidates from the Employment Exchange, Salem on 23.3.2002 and the Assistant Director of District Employment Office, Salem in the letter dated 5.4.2002 has sent list of candidates numbering 11 for selection for appointment of the said Post and the petitioner happened to be one among the said 11. Interview for the said post was held by the 2nd Respondent on 3.5.2002. It is seen that the petitioner came to be appointed as Waterman in the 2nd Respondent School on 5.6.2002 in the time scale of pay of Rs.2,550-55-2600-60-3200 and accordingly it is stated that the petitioner has joined duty on the Fore-noon of 5.6.2002. The approval for appointment of the petitioner as Waterman was sought by the 2nd respondent on 5.7.2002 from the 1st respondent District Educational Officer. Accordingly, the 1st Respondent also granted approval for appointment of the petitioner in his proceedings dated 16.8.2002. Thereafter it is seen that at the request of 1st respondent, Provident Fund Account number was also allotted to the petitioner. However, after 2 years, viz., on 27.2.2004, the impugned order came to be passed by the 2nd respondent cancelling the approval of appointment of the petitioner on 16.8.2002 on the basis that the recruitment of the petitioner in the non-teaching staff during the period when the ban on recruitment was in force and as per the said impugned order, 1st respondent has directed the 2nd respondent to relieve the petitioner from the post forthwith. It appears that based on the said impugned communication dated 27.2.2004, the 2nd respondent institution has passed consequential order on 1.3.2004 relieving the petitioner from the Post of Waterman. Aggrieved by the order of the 1st respondent dated 27.2.2004, the petitioner has filed Writ Petition in W.P.No.7715 of 2004 on 24.3.2004. This Court has granted an order of status quo on 26.7.2004 and on 8.11.2005 interim stay was granted and by virtue of the said interim orders, the petitioner continued to work as Waterman. The petition filed by the respondents to vacate the order of stay in W.V.M.P.No.1710 of 2005 came to be dismissed by this Court on 9.12.2005.
2. The short question to be decided is, as to whether during the period of ban, which was effected by the Government in G.O.Ms.No.212 Personal and Administrative Reforms (P) Department dated 29.11.2001, which is challenged by the Writ Petitioner in W.P.No.19381 of 2004, any appointment made within the sanctioned strength of non-teaching staff in a private school can be held to be illegal. It is also not in dispute that by virtue of subsequent Government Order in G.O.Ms.No.14 Personal and Administrative Reforms Department dated 7.2.2006, the ban on recruitment came to be lifted. In view of the fact that the ban on recruitment which was effected by G.O.Ms.No.212 dated 29.11.2001 came to be lifted by the subsequent Government Order in G.O.Ms.No.14, dated 7.2.2006, the Writ Petition in W.P.No.19381 of 2004 becomes infructuous and accordingly the said Writ Petition stands dismissed.
3. The above said issue about the effect of ban on recruitment and the lifting of ban in respect of the non-teaching staff in the Private School management came to be decided by this Court as it is seen in the latest order of N.Paul Vasanthakumar,J., in the case of THIRUVALLUVAR HIGHER SECONDARY SCHOOL, PALAMANER ROAD, KGUDIYATTAM, VELLORE DISTRICT REP.BY THE SECRETARY, SCHOOL COMMITTEE, K.M.GOVIDNARAJAN VS. THE GOVERNMENTO F TAMIL NADU (2008 (5) CTC 648). A reference to the said order shows that in a similar circumstance when a question arose as to whether the appointment of non-teaching staff in an aided school has to approved from the original date of appointment within the sanctioned strength or the approval must be given from the date of lifting of ban viz., from 7.2.2006. in Writ Appeal (MD) No.308 of 2008 filed by the Management as against the order of the learned single Judge in W.P.(MD) No.484 of 2007 by which the Writ Petition came to be allowed on 30.10.2007, the Division bench has taken a stand that the approval of appointment of non-teaching staff shall be from the date of lifting of ban viz., 7.2.2006. However, in the Writ Appeal filed by the concerned individual, in W.A.(MD) No.456 of 2008, the Division bench has taken a different view by allowing the Writ Appeal filed by the individual holding that the individual would be entitled for approval of appointment from the date of his original appointment. In fact, based on the Division bench judgment of Maduri Bench in W.A.(MD) No.456 of 2008 dated dated 4.8.2008, which has been referred to in the above said judgment that on similar circumstances wherein the Government itself has suo motu approved the appointment of such non-teaching staff in the private schools from the date of their initial appointment and based on that, in the said W.A. in respect of the candidate, who was effected, the Division bench has held that he is entitled for approval of appointment from the date of the original appointment. The operative portion of the said judgment of the Division bench as elicited by the learned judge are as follows:
“5. The learned counsel for the petitioner submits that the above order was challenged by the respondent Education Department in W.A.(MD) No.308 of 2008 and the said Writ Appeal was dismissed by a Division Bench of Madurai Bench on 4.8.2008. The Division Bench dismissed the Writ Appeal by observing as follows:
“4. After considering the rival submissions made on either side, following the judgment of the Supreme Court and order of this Court, the learned Single Judge set aside the orders of the appellants with a direction to approve the appointment of the respondent/petitioner as Lab Assistant with effect from 7.2.2006 and the third appellant was directed to pass orders approving the appointment of the first respondent with effect from 7.2.2006 within a period of four weeks from the date of receipt of copy of the order.
5. We find no infirmity of illegality in the order of the learned judge dated 30.10.2007 passed in W.P.(MD) No.484 of 2007. Therefor,e the Writ Appeal fails and the same is dismissed.”
The learned counsel for the petitioner further submitted that the first respondent in W.A.(MD) No.308 of 2008 filed separate Appeal in W.A.(MD) No.456 of 2008 and challenged the order not giving direction to approve the appointment from the date of appointment till the date of lifting of the ban and the said Writ Appeal was also allowed by the Madurai Bench of this Court on 4.8.2008 by observing as follows:
“2. Heard the learned counsel for the appellant and the learned Special Government Pleader appearing for the respondents 1 to 23.
3. The learned counsel for the appellant submits that the appointment of the appellant from the date of appointment should have been approved by the learned Single judge instead of restricting the prayer.
4. It has been brought to our notice that in similar circumstances the Government has issued orders in respect of similar employees approving their services from the date of their initial appointment. When once the ban is revoked, the Government should have considered and approved the appointment of the petitioner from the date of his initial appointment. Therefore, the orders of the learned Single Judge need to be modified to this extent. Accordingly, the Writ Appeal is allowed modifying the order of the learned Single Judge dated 30.10.2007 made in w.P.(MD) No.484 of 2007 and directing the respondents to approve the appointment of the petitioner from the date of initial appointment.”
It is based on the later judgment of the Division bench of the Maudrai Bench in respect of the same issue, the learned Judge has passed an ultimate order approving the appointment of the writ petitioner therein as Junior Assistant from the date of his original appointment by observing as follows:
“…. In the light of the above referred judgments of the Division Bench, the impugned order dated 06.03.2003 is set aside with a direction to the fourth respondent to approve the appointment of S.K.Rajasekar working in the petitioner school as Junior Assistant, with effect from 01.07.2002 with all monetary benefits. Necessary orders to that effect is directed to be passed by the fourth respondent within a period of two weeks from the date of receipt of copy of this order and the arrears of salary payable to the said S.K.Rajasekar is directed to be paid within four weeks therefrom.”
4. In the light of the above stated circumstances, it is not in dispute that the Government itself has granted approval of the appointment of non-teaching staff, who were appointed though ban which was in force, from the date of their original appointment and not from the date of lifting of ban. Therefore, I am of the considered view that the impugned order, which withdraws the approval granted by the 1st respondent earlier dated 16.8.2002 is untenable. In such view of the matter, the impugned order of the 1st respondent dated 27.2.2004 stands set aside with direction to the 1st respondent to grant approval for appointment of the petitioner in the 2nd respondent School from the date of his original appointment, provided the said appointment is within the sanctioned strength granted to the 2nd respondent school and the appointment of the petitioner was made in accordance with law by calling for the list from the Employment Exchange and conducting interview in the manner known to law. Accordingly, the Writ Petition in W.P.No.7715 of 2004 stands allowed and other Writ Petition in W.P.No.19381 of 2004 is dismissed for the reasons stated above. It is needless to state that on granting such approval, the 1st respondent shall pass appropriate orders regarding consequential monetary benefits within a period of twelve weeks from the date of receipt of copy of this order. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
03.11.2010
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Index: Yes
Internet: Yes
To
1. The Secretary to Government
Personnel & Administrative Reforms
(P) Department, State of Tamil Nadu
Fort St.George,
Chennai 600 009.
2. The District Educational Officer
Sankari
Salem District.
P.JYOTHIMANI,J.
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W.P.NOS.7715 AND 19381
of 2004
3-11-2010