IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.02.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.26395 of 2008 St. Joseph's Girls' Hr. Sec. School, rep. by its Correspondent, Ponmalaipatty, Thiruchirapally – 620 004. ... Petitioner vs. 1. The Government of Tamil Nadu, rep. by its Secretary, Department of School Education, Fort St. George, Chennai – 600 009. 2. The Director of School Education, DPI Campus, College Road, Chennai – 6. 3. The Chief Educational Officer, Chief Educational Office, PTA Building, Syed Muthursha Hr. Sec. School Campus, Trichy – 8. 4. The District Educational Officer, DEO Office, Trichy – 17. ... Respondents Writ 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 pertaining to the order dated 22.04.2008 in Na.Ka.No.124568/G1/E3/07 on the file of the 2nd respondent and quash the same, directing the respondents to accord approval to Sr. Glory working as B.T. Asst. (History) in St. Joseph's Girls Hr. Sec. School, w.e.f. 15.06.2007 regularizing her services with all attendant and monetary benefits. For Petitioner : Mr.R.Saravana Kumar For Respondents : Mr.R.Neelakandan, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition is filed challenging the order dated 22.04.2008 in Na.Ka.No.124568/G1/E3/07 passed by the 2nd respondent herein and for a direction to the respondents to accord approval to Sr. Glory working as B.T. Asst. (History) in the petitioner School, w.e.f. 15.06.2007 regularizing her services with all attendant and monetary benefits. 2. Heard Mr.R.Saravana Kumar, learned counsel for the petitioner and Mr.R.Neelakandan, learned Government Advocate appearing for the respondents. 3. Facts of the case as put forth in the affidavit would run thus: (i) The petitioner School is run by Catholic Religious Congregation of Mother of Sorrows Servants of Mary, Chennai, which is a religious, charitable and educational organization. It is a registered Society. All the institutions run by the said society in Tamil Nadu are Minority Educational Institutions under Article 30 (i) of the Constitution of India and all the members of the said society are religious nuns. The said society/congregation is working for the poor and the downtrodden, especially for women. (ii) One Sr. Dhanam was working as B.T. Assistant (History) in the petitioner School and she was promoted as P.G. Assistant on 05.06.2007 in the very same school by the Management. Her promotion and appointment was approved by the authorities. Subsequently, in the above said vacancy, one Sr. Glory was appointed by transfer as B.T. Assistant (History) on 15.06.2007 in the petitioner School by the Management. She is a religious nun and a member of the said congregation. The management has transferred the said teacher from Servite Govt. Aided High School, Kottucherry, Karaikal to the petitioner school on 14.06.2007. She was relieved from duty on 14.06.2007 F.N. from the previous school and joined duty at the petitioner school on 15.06.2007 A.N. (iii) Subsequent to the said appointment, the petitioner forwarded the proposal to the 4th respondent on 06.09.2007. But, the respondent orally refused to accept the proposal sent by the Management. When the Management again contacted the 4th respondent to enquire about the reason for not accepting the proposal of the said appointment, the 4th respondent orally stated that the post has been declared as surplus in the petitioner school. The 3rd respondent has issued the proceedings dated 27.09.2007, stating that one post of B.T. Assistant (History) was surplus with person in petitioner School. The said staff fixation report of the 3rd respondent was received by the petitioner only on 03.10.2007. But, the said Teacher was appointed much prior to 03.10.2007, i.e. on 15.06.2007 in the https://hcservices.ecourts.gov.in/hcservices/ regular sanctioned post. As per Rule 15(3) of the Tamil Nadu Recognised Private Schools Regulation Rules, 1974, the petitioner can fill up the vacancy as and when they arise. (iv) As per the staff fixation for the year 2007-2008, the 3rd respondent has held one B.T. Assistant (History) post as surplus with person. But, the said staff fixation declaring the said post as surplus will come into effect only from 01.08.2007. It will have no retrospective application. The appointment of the said teacher on 15.06.2007 falls prior to the said staff fixation which comes into effect from 01.08.2007. The said staff fixation has been communicated to the petitioner school only on 03.10.2007. The respondents cannot refuse approval to the said appointment of the said teacher on 15.06.2007, retrospectively applying the staff fixation which came to be applicable from 01.08.2007. (v) Due to the inordinate delay in according approval to the said teacher from 15.06.2007, the problem arose by which, the respondents failed to deploy the said post with person of the said teacher as per G.O.Ms.No.525 to some other needy school. The action of the respondents in not according and not deploying the said teacher with the post is highly illegal. On the other hand, the said teacher, having been refused approval even without a proper order, is working in uncertainty and without salary jeopardising her service and other benefits. The respondents have miserably failed in applying the Government Order in accordance with the facts and circumstances. (vi) Subsequent to the said post being declared surplus w.e.f. 01.08.2007, which was communicated to the petitioner only on 03.10.2007, the 2nd respondent vide proceedings dated 22.04.2008, had resumed the said post of B.T. Assistant (History) from the petitioner school to the common pool of the 2nd respondent vide proceedings dated 22.04.2008 in Na.Ka.No.124568/G1/E3/07 even without notice. The action of the 2nd respondent in resuming the post to the common pool cannot be done along with the person. Secondly, even if the post with the person is held surplus, it can be only deployed to another needy school under due process of law. No resumption of the post to the common pool with person is possible. The respondents committed an error by resuming the post with person and that too without notice. There is also a contradiction in the presumption of the 2nd respondent that the particular post is without person, while the 3rd respondent has clearly stated in his staff fixation report for the academic year 2007-2008 that the post is with person. There was no notice to the petitioner before resuming the post. It is a violation of the procedure and the principles of natural justice. According to petitioner, due to the illegal action of the respondents, the particular teacher is suffering without approval and stands to suffer a break of service. She has a service of more than 15 years as a B.T. Assistant and in case of non-approval, her entire service will be https://hcservices.ecourts.gov.in/hcservices/ affected. 4. Respondents have filed counter. It is stated therein that the 3rd respondent herein fixed staff strength of the petitioner's school in his proceedings Rc.No.7625-A4-2007 dated 27.09.2007 for the school year 2007-2008. One B.T. Post with person in high school section is shown surplus to the school herein. This fixation order dated 27.09.2007 for the school year 2007-2008 deemed to have come into effect from 01.06.2007 and valid up to 31.05.2008. 4a. The petitioner accorded promotion to a B.T. Teacher by name Sr. Dhanam as P.G. Teacher from 14.06.2007 who was the Teacher rendered surplus to the school. Simultaneously, the petitioner filled up the post, left vacant due to the promotion of Sr. Dhanam, by appointing by transfer of a teacher directly or by transfer is subject to the fulfillment of the condition that it should be made in a sanctioned post eligible for utilisation. 4b. The petitioner herself accepts that she got the staff fixation order from the 3rd respondent for the year 2007-2008 on 03.10.2007 vide paragraphs 4 and 5 of the affidavit. Immediately on receipt of the staff fixation order for 2007-2008 on 03.10.2007, the petitioner ought to have taken action for the retransfer of the teacher appointed in the surplus post to any other school under her control. The petitioner has not done so. Therefore, the petitioner is responsible for the consequences and the respondents 1 to 4 cannot go to her rescue. In view of the above circumstances, the B.T. post rendered surplus with teacher to the petitioner's school has become vacant without teacher from 15.06.2007 which was resumed by the 2nd respondent and merged in the common pool through his order dated 22.04.2008. Hence, the writ petition filed by the petitioner is not maintainable. 5. Learned counsel for the petitioner submits that the post of B.T. Assistant in the petitioner School fell vacant on 15.06.2007 in view of the promotion of a Teacher, by name Sr. Dhanam, as P.G. Assistant from B.T. Assistant. Therefore, the petitioner filled up that vacancy by way of transfer of a teacher from other school. He would further submit that the determination of student strength and staff fixation is done every year reckoning from 1st June to 31st July and as on 1st August of every year, the fixation has to be taken into account. Since the vacancy was prior to this date, approval has to be accorded by the competent authority. He would contend that the fixation will have a prospective effect and it cannot be given retrospectively. 6. Per contra, learned Government Advocate would contend that the staff fixation is done on the strength of the students as on 1st August every year. But, it does not mean that the staff strength of the school year 2007-2008 based on the student strength as on https://hcservices.ecourts.gov.in/hcservices/ 01.08.2007 came into effect from 01.08.2007 only and it has to be construed that it took effect from 01.06.2007 and not from 01.08.2007 as claimed by the petitioner. Therefore, once the vacancy is declared as surplus, filling up of that vacancy cannot be approved. 7. I have heard the learned counsel on either side and perused the material documents and the relevant Government Orders. 8. Admittedly, the petitioner is a Minority Institution and has their staff fixation based on the student strength, for which each school should be determined by the Chief Educational Officer reckoning from 1st June to 31st July and it will take effect from 1st August of every year and the fixation so done will be followed by the Schools commencing from 1st June till next year. Accordingly, the 3rd respondent fixed staff strength of the petitioner school vide proceedings in R.C.No.7625-A4-2007, dated 27.09.2007 for the school year 2007-2008. 9. It is seen that one B.T. Assistant post with person in the petitioner school is shown surplus to the school. This fixation order will take effect from 27.09.2007 and there was a promotion of one Teacher by name, Sr. Dhanam as P.G. Assistant Teacher from 14.06.2007 from the post of B.T. Assistant, thereby the post of B.T. Assistant was vacant in the petitioner school in which the Management appointed one Sr.Glory by way of transfer from other school on 15.06.2007 and claimed for approval of the Teacher by the competent authority, namely, District Educational Officer, Trichy, the 4th respondent herein. It is not in dispute that the staff fixation order, dated 03.10.2007 passed by the 3rd respondent for the year 2007-2008 only and for the previous school year, the staff strength was fixed earlier, based on which, the petitioner claimed that the vacancy which fell due to the promotion of the B.T. Teacher Sr. Dhanam was a sanctioned vacancy available to them. Therefore, they filled up that vacancy. However, the approval is rejected by the 4th respondent vide proceedings in Na.Ka.No.124568/G1/E1/07 dated 22.04.2008 on the ground that the petitioner has filled up the surplus vacancy based on the fixation order dated 27.09.2007 for the school year 2007-2008 deemed to have come into effect from 01.06.2007 and valid up to 31.10.2007. 10. A perusal of the entire proceedings would reveal that the vacancy which was available for the school year 2006-2007 was under force till the next fixation order dated 27.09.2007 was given effect for the school year 2007-2008. If that is so, the vacancy in the petitioner school on 15.06.2007 could not be construed as a surplus vacancy and it was only a sanctioned vacancy as per the staff fixation of the previous school year. Therefore, the decision of the 4th respondent that the staff fixation for 2007-2008 based on the student strength as on 01.08.2007 came into effect from 01.08.2007 has to be construed that it took effect from 01.06.2007 and not from https://hcservices.ecourts.gov.in/hcservices/ 01.08.2007 is an exfacie arbitrary decision and therefore, the impugned proceedings is vitiated in law as they have given effect retrospectively from 01.06.2007, which, in the opinion of this court, cannot be sustained. 11. Rule 15(3) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 inter alia provides that in a regular vacancy, a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, i.e. leave vacancy, deputation for training or suspension of the teacher's certificate, a teacher or other person may be appointed for a specified period. In the instant case, the post of B.T. Assistant, a regular vacancy fell vacant on 15.06.2007 in view of the promotion of a Teacher by name, Sr. Dhanam as P.G. Assistant from B.T. Assistant. In the said B.T. Assistant vacancy, one Sr.Glory was appointed by way of transfer from other school. She is qualified for the said post and hence claimed approval of the same. If that being so, it is the incumbency of the competent authority to accord the approval sought for by the petitioner. On the contrary, the respondents have arbitrarily rejected the petitioner's claim for approval. Therefore, the impugned proceedings is vitiated in law. 12. According to G.O.Ms.No.525, dated 29.12.1997, the staff fixation for every school year based on the student strength has to be done from 1st June to 31st July and it will take effect from 1st August of every year. Accordingly, the staff fixation has been done by the 3rd respondent/Chief Educational Officer. It is the admitted case of the respondent that the staff fixation for the year 2007-2008 dated 27.09.2007 will take effect from 01.06.2007 and not from 01.08.2007. Therefore, the impugned proceedings cannot be sustained as it suffers from legal infirmity. As the respondents wanted to give retrospective effect to the staff fixation for the previous academic year, this court is of the view that the sanction cannot be accorded. Therefore, the decision rendered by the 2nd respondent is liable to be set aside for the foregoing reasons. 13. When the Rule position in respect of filling up of regular vacancy and the staff fixation for the School year is clear, it cannot be interpreted by the respondents in a different dimension to give effect to the staff fixation retrospectively contrary to the Rules, to suit the respondents for their arbitrary action. The legal principles are very clear that for giving effect to a particular order of the Government for a particular School year, it is not the whims and fancies of the respondents to interpret in a manner contrary to the Rules and Government Orders. Therefore, staff fixation cannot be given retrospective effect to an earlier date. 14. Accordingly, the impugned proceedings dated 22.04.2008 passed by the 2nd respondent is set aside with a direction to the 4th https://hcservices.ecourts.gov.in/hcservices/ respondent to consider the approval for the period which the petitioner had a sanction of post and thereafter, if the post in question is made surplus in view of the subsequent orders, it is for the 4th respondent to decide the same after giving notice to the petitioner Institution and on affording an opportunity of hearing to them and pass appropriate orders on merits and in accordance with law. The writ petition is allowed with the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar abe To 1. The Secretary, Department of School Education, Fort St. George, Chennai – 600 009. 2. The Director of School Education, DPI Campus, College Road, Chennai – 6. 3. The Chief Educational Officer, Chief Educational Office, PTA Building, Syed Muthursha Hr. Sec. School Campus, Trichy – 8. 4. The District Educational Officer, DEO Office,Trichy – 17. 1 cc To Mr.R.Saravanakumar, Advocate, SR.10924 1 cc To The Government Pleader, SR.11176 W.P.No.26395 of 2008 nm(co) pmk.16.3.2011 https://hcservices.ecourts.gov.in/hcservices/