1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.A.(MD)No.1552 of 2011 and M.P.(MD)No.2 of 2011 1.The State of Tamil Nadu, rep., by its Secretary to Government, School Education Department, Fort St.George, Chennai – 9. 2.The Director of Elementary Education, College Road, Nungambakkam, Chennai – 636 006. 3.The District Elementary Educational Officer, Kanyakumari District as Nagercoil, Kanyakumari District. 4.The Correspondent, Aided Primary School, Kallupallam, Idaicode Post, Kanyakumari District. .. Appellants/Respondents Vs. S.Selvamani .. Respondent/Petitioners Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 06.07.2011 passed in W.P.(MD) No.9046 of 2007. W.P.(MD)No.9046 of 2007 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the entire records relating to the impugned letter issued by the first respondent herein in Letter No.8435/B2/2004 dated 09.02.2007 and quash the same and consequently direct the respondents herein to approve the appointment of the petitioner with effect from 02.06.1981 and confer all the eligible benefits. For appellants : Mr.K.Mahendran, Spl.Government Pleader For respondent : Mr.D.Anbarasu for M/s.Abarna Nandakumar https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT (Judgment of the Court was delivered by K.N.BASHA, J) By mutual consent, the Writ Appeal is taken up for final hearing. 2. The appellants/State preferred the Writ Appeal challenging the order of the Writ Court dated 6.7.2011 made in W.P. (MD)No.9046 of 2011 allowing the Writ Petition filed by the respondent herein quashing the impugned order passed by the first appellant dated 9.2.2007 and consequently, directing the authorities to release the arrears of salary due to the petitioner within a period of three months from the date of receipt of an order copy of this Court. 3. Mr.K.Mahendran, learned Special Government Pleader, would contend that the Writ Court failed to note that in the false records, the respondent has signed on many Saturdays and Sundays, and even on public holidays. In February 2007, he has signed on 29.2.2007, 30.2.2007 and 31.2.2007 and in April, 2007, he has signed on 31.4.2007, which are great errors, which a teacher cannot commit. It is further contended that the Writ Court has also failed to note that the School is not having students' strength to sanction more posts to the School and also there are no posts in the School to approve the appointment of the respondent. 4. Per contra, learned counsel appearing for the respondent would contend that there are no infirmity or illegality in the order passed by the Writ Court. It is contended that the Writ Court has even incorporated the earlier order passed by this Court in W.P.(MD)No.2004 of 2004 filed by the School challenging the staff fixation order asking the School to surrender one post. It is contended that the said Writ Petition was allowed as early as on 21.11.2006 and the same was not challenged by the appellants and the said order has reached finality and such being the position, there is no question of challenging the present order passed by the Writ Court on the basis of the Writ Petition preferred by the respondent herein. It is contended that the Writ Court has also placed reliance on the Full Bench decision of this Court in Director of Elementary Education, Chennai – 6 and others .. Vs .. S.Visila and Another [2006 (5) C.T.C.385]. Therefore, it is contended that there is absolutely no ground made warranting interference of this Court in the Writ Court's order. 5. We have given our careful and anxious consideration on the rival contention put forward by either side and also perused the entire materials available on record including the impugned order passed by the first respondent dated 9.2.2007 as well as the Writ Court's order dated 6.7.2011 made in W.P.(MD)No.9046 of 2007. 6. At the outset, it has to be stated that the institution in which the respondent is working as on date, has preferred a Writ Petition in W.P.(MD)No.2004 of 2004 challenging the staff fixation order asking the school to surrender one post. The Writ Court has rightly incorporated the said order as hereunder:- "2. The grievance of the petitioner is that the petitioner's school is granted recognition with aid from Standards I to V and totally one Headmaster https://hcservices.ecourts.gov.in/hcservices/ 3 and two Secondary Grade Teacher Posts are sanctioned, out of which one Secondary Grade Teacher post is rendered as surplus by the impugned order. The Full Bench Judgment of this Court in the decision made in W.A.No.313 of 2006 dated 4.11.2006 held that while sanctioning the post as per G.O.Ms.No.525 each standard should be sanctioned with one teacher and therefore, applying the said principle for the petitioner's school with Standards I to V, minimum five teacher posts are eligible to be sanctioned for Tamil Medium and five teacher posts are eligible to be sanctioned for Tamil Medium and five teacher posts for Malayalam Medium. Since the petitioner's school is aided lingual school in this case, three posts sanctioned including the Headmaster, out of which one is rendered as surplus, is contrary to the decisions cited above. Therefore, the impugned order is set aside and this Writ Petition is allowed accordingly. No costs." 7. The fact remains that the said order passed earlier by this Court dated 21.11.2006 already reached its finality as the same was not challenged by the appellants and on the other hand, the appellants have chosen to challenge only the present Writ Court's order, which was passed on the basis of the petitioner who is a Secondary Grade Teacher preferring the present Writ Petition. The Writ Court rightly placed reliance on the Full Bench decision of this Court, which was also incorporated as hereunder:- "9. The contention of the petitioner is that G.O.Ms.No.525 Education Department dated 29.12.1997 has been wrongly interpreted, by ignoring the directions of the Hon'ble Full Bench of this Court in the case of Director of Elementary Education, Chennai – 6 and others .. vs .. S.Visila and another [2006 (5) C.T.C. 385] wherein the Full Bench was pleased to interpret the G.O., as under- "23. Keeping in view that 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 all below the number of Standard/Section in a School. In the 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 https://hcservices.ecourts.gov.in/hcservices/ 4 requiring the sanction of 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 student's strength of each individual standard and additional section, as the case may be, by keeping in view the teacher – students ration 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 requires recognition. 5.It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the Constitution." 8. It is also pointed out by the Writ Court that the appellants have not taken any steps to implement the order of this Court passed earlier on 21.11.2006 and such being the position, the Writ Court held that the petitioner cannot be allowed to suffer for want of action on the part of the fourth appellant herein. It is also pointed out by the Writ Court that the impugned order cannot be sustained in law as the same is not only contrary to the Full Bench decision of this Court in Director of Elementary Education, Chennai – 6 and others .. vs .. S.Visila and another [2006 (5) C.T.C. 385] but it is also contrary to the earlier decision rendered by this Court in W.P.(MD)No.2004 of 2004 decided on 21.11.2006. 9. On such reason, the Writ Court has rightly set aside the impugned order passed by the first respondent/first appellant herein dated 9.2.2007. It is also pertinent to note that the Writ Court also restricted the arrears of salary to be paid to the respondent only to three years and two months prior to the date of filing of the present Writ Petition on 1.11.2007 (i.e. with effect from 1.9.2004), till the date of payment. 10. In view of the above said factors, we are unable to see any ground warranting interference of this Court in the orders passed by the Writ Court. Accordingly, the Writ Appeal is hereby dismissed. It is made clear that the appellants shall comply with the directions already issued by the Writ Court within a period of eight weeks from the date of receipt of a copy of this judgment. https://hcservices.ecourts.gov.in/hcservices/ 5 Consequently, the connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, School Education Department, Fort St.George, Chennai – 9. 2.The Director of Elementary Education, College Road, Nungambakkam, Chennai – 636 006. 3.The District Elementary Educational Officer, Kanyakumari District as Nagercoil, Kanyakumari District. +1cc to Mr.D.Anbarasu, Advocate Sr.No.44395 +1cc to the Special Govt.Pleader, Sr.No.44320 asvm ssk/03.01.2012 /6c-5p/- W.A.(MD)No.1552 of 2011 and M.P.(MD)No.2 of 2011 16.12.2011 https://hcservices.ecourts.gov.in/hcservices/