IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.08.2010 CORAM THE HONOURABLE MS. JUSTICE K.B.K. VASUKI W.P. No.17035 of 2004 Sybil Reena Leitch .. Petitioner vs 1. The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort. St. George, Chennai-9 2. The Director of School Education, College Road, Chennai-600 006 3. The District Educational Officer, Kuzhithurai and post, Kanyakumari District 4. The Correspondent, LMS Girls Higher Secondary School, Marthandam, Kanyakumari District .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records relating to the order of the third respondent issued in O.M. No.3146/A3/2004, dated 14.06.2004 and to quash the same and consequently direct the respondents 1 to 3 to approve the appointment of the petitioner as P.G. Assistant English in the fourth respondent School from 02.06.2003 with salary and other benefits. For Petitioner : Mr. K. Ravichandra Babu For Respondents : Ms. E. Ranganayaki, G.A., (Education) O R D E R On consent, the writ petition is taken up for final hearing. 2. The relief sought for in the writ petition is to quash the order of the third respondent in O.M. No.3146/A3/2004, dated 14.06.2004 and to consequently direct the respondents 1 to 3 to approve the appointment of the petitioner as P.G. Assistant English in the fourth respondent School from 02.06.2003 with salary and other benefits. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner passed B.Sc., Chemistry in the year 1981 and M.A. Degree in English in the year 1983 from Madurai Kamaraj University. Thereafter, the petitioner was appointed as P.G. Assistant English in the leave vacancy in LMS Higher Secondary School, Janes Town and the appointment was approved and the petitioner was paid salary for the period of leave vacancy. The petitioner was thereafter appointed as PG Assistant in English in LMS Higher Secondary School, Kadamalaikundru. While so, one vacancy in the post of PG Assistant arose on 01.06.2003 in the fourth respondent/School due to the promotion of K. Selvanesam who was holding the post of Headmaster in one of the Higher Secondary School in the same Management. The petitioner was appointed to the post of PG Assistant since 02.06.2003 and proposal was forwarded by the fourth respondent/ Management to the third respondent for approval during November 2003 and the same was returned to the fourth respondent/ Management for re-submitting it and after re-submission on 19.01.2004, the same was negatived by the third respondent in his proceedings 14.06.2004 on the ground that the petitioner is having passed B.Sc. Degree in graduation and M.A. degree in English which is different subjects and the correctness of such order is now questioned before this Court. It is also now brought to the notice of this Court that during the pendency of this W.P., the petitioner acquired B.A. Degree in English and the same was intimated to the appropriate authority and the appropriate authority has thought it fit to approve her appointment as PG Assistant with effect from 06.06.2002 and not with effect from 02.06.2003, the date on which the petitioner was originally appointed as PG Assistant. The learned counsel for the petitioner now claims that the petitioner's approval shall be from the date of her original appointment i.e. 02.06.2003. 4. The learned counsel for the petitioner has in support of her claim relied upon G.O. Ms. No.361, dated 31.12.1999 and G.O. Ms. No.266, dated 18.10.2000 and also the judgment of our High Court reported in 2009 1 CTC page 463 (N.K. Geetha vs The Government of Tamil Nadu rep. by its Secretary, School Education Department, Fort. St. George, Chennai-9 and others and 2010 5 MLJ 890 (P. Senguttuvan and another vs Director of School Education, Chennai-6 and others). The learned counsel for the petitioner would contend that though the educational qualification for entry as Post Graduate Assistant for selection through Direct Recruitment was as per the earlier G.O. Ms. No.361 dated 31.12.1999, i.e. Bachelors and Master Degrees in the same subject, the same is subsequently revised in the subsequent G.O. Ms. No.266, dated 18.10.2000 as per which the educational qualification for the post of Post Graduate Assistant is amended to the effect that the persons possessing Bachelors degree in different subject and Master degree in the same subject in respect of which recruitment is made shall be considered, provided, if qualified person possess Bachelors degree and Masters degree in English is not available and the ratio is also fixed. It is the further case of the petitioner that as there is no one available possessing both Bachelors and Masters Degree in the same subject, the petitioner who is having Bachelors Degree in different subject and Masters Degree in the same subject was considered by the Management and such appointment is made by the Management in accordance with the https://hcservices.ecourts.gov.in/hcservices/ recruitment guidelines and the same ought to have been approved by the authority concerned from the date of her initial appointment on 02.06.2003 and the failure to approve her appointment on earlier occasions and the approval of her appointment subsequently with effect from 06.06.2004 is not proper and is invalid in law. 5. Heard the rival submissions made on both sides and the records and the judgments cited on the side of the petitioner are perused. 6. It is not in dispute that the petitioner has on the relevant date of her appointment as PG Assistant English possessed Bachelors degree in different subject and Masters Degree in English and her appointment is well in accordance with the relevant G.O enclosed at page 2 of the typed set of papers. That is why she was duly considered for the appointment by the Management and her appointment was duly forwarded to the third respondent for approval. However, the third respondent has passed the impugned order for her retrenchment on the basis of G.O. Ms. No.361 dated 31.12.1999. The authority concerned failed to apply its mind to the fact that by reason of the subsequent G.O., the qualification prescribed that both Bachelors degree and Masters degree should be in the same subject is already relaxed and what is required is the Masters Degree in the subject to which the above interest is made and both Bachelors Degree and Masters Degree need not be in the same subject. That being so, the impugned order passed by the authority concerned is totally in violation of the appointment regulation issued by the Government. The third respondent has chosen to approve her appointment from 06.06.2004 only after the petitioner acquired the Bachelors degree also in the same subject, though the petitioner was not required to do so. Even thereafter the third respondent has not chosen to approve her appointment retrospectively from 02.06.2003 on which date she is originally appointed as PG Assistant in the fourth respondent/School. In my considered view, her appointment should have been approved retrospectively from 02.06.2003 as claimed by her in the writ petition and the impugned orders passed by the third respondent, thereby rejecting her legitimate claim is illegal and cannot be factually and legally allowed to stand. 7.An identical issue came up for judicial review in the judgment above referred to i.e. 2010 (5) MLJ 890 and the High Court is pleased to uphold the appointment of the writ petitioner therein who possessed UG degree in History and PG degree in Economics on the ground that the petitioner therein is fully qualified as prescribed in the Annexure 5 of the Private School Regulation Rules and the third respondent is directed to pay the salary of the petitioner therein with effect from the date of his promotion. Similar order was passed in the other judgment of our High Court reported in 2009 1 CTC page 463 (N.K. Geetha vs The Government of Tamil Nadu rep. by its Secretary, School Education Department, Fort. St. George, Chennai-9 and others wherein also the High Court is pleased to uphold the appointment of the petitioner to the post of PG Assistant with his educational qualification of PG Malayalam and UG History under relevant regulation rules and it is specifically held that specific provision contained in statutory rule https://hcservices.ecourts.gov.in/hcservices/ prevails over the Government order and the refusal to approve the appointment from the date of original appointment that too with reference to G.O. 361 is unwarranted and is contrary to statutory rule and is invalid in law. In view of such legal position, the order impugned herein which is contrary to the rules relating to educational qualification has to be necessarily set aside and the petitioner's appointment shall be directed to be approved from the date of her original appointment 02.06.2003. 8. In the result, the writ petition is allowed by setting aside the impugned order of the third respondent made in O.M. No.3146/A3/ 2004, dated 14.06.2004 and the third respondent is consequently directed to approve the appointment of the petitioner as PG Assistant in English in the fourth respondent/School from 02.06.2003 with all monetary and other benefits and to pay her salary accordingly within four weeks from the date of receipt of the copy of the order. 9. With this observation, the writ petition is allowed. No costs. Consequently, connected M.Ps are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vga To 1. The Secretary, The Government of Tamil Nadu, School Education Department, Fort. St. George, Chennai-9 2. The Director of School Education, College Road, Chennai-600 006 3. The District Educational Officer, Kuzhithurai and post, Kanyakumari District 4. The Correspondent, LMS Girls Higher Secondary School, Marthandam, Kanyakumari District. 1 cc To Mr. K. Ravichandra Babu, Advocate, SR.60285 1 cc To The Government Pleader, SR.60453 W.P. No.17035 of 2004 ggk(co) pmk.13.11.2010 https://hcservices.ecourts.gov.in/hcservices/