1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/10/2011 C O R A M THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.(MD) No.556 of 2011 and M.P.(MD).No.1 of 2011 Rahmania Higher Secondary School, rep. by its Manager & Correspondent, S.S.Hassan Aboobacker, Melapalaiyam- 627005, Tirunelveli District. ... Petitioner Vs. 1.The Government of Tamil Nadu, rep. by its Secretary to Govt. Education Department, Fort. St. George, Chennai -9. 2.The Director of School Education, College Road, Chennai-600 006. 3.The Joint Director of School Education (Higher Secondary), College road, Chennai-6. 4.The Chief Educational officer, Tirunelveli District, Tirunelveli. 5.The District Educational Officer, Tirunelveli District, Tirunelveli. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, to call for the entire records of the fifth respondent in his proceedings in Na.Ka.No.4950/A2/2008 dated 01.09.2009 and quash the same and consequentially direct the 5th respondent to approve the appointment of Mohammed Muthalif as watchman in the petitioner school from his date of appointment on 01.06.2009 with all monetary benefits including the salary. For petitioner .. Mr.K.K.Kannan For respondents .. Mr.R.Anandharaj, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ 2 ORDER The challenge in this petition is to the order passed by the fifth respondent, dated 01.09.2009, rejecting the application filed by the petitioner institution seeking for the relief of approval of appointment of a watchman. 2.The case of the petitioner is that the petitioner school was started as Primary School in the year 1922 and upgraded as Middle School, High School and Higher Secondary School in the years 1960, 1978 and 1985 respectively. The watchman post in the petitioner school fell vacant on 31.01.2007 due to the retirement of one M.J.Jafarullah and thereafter, one Syed Ali was appointed in the above said permanent post on 01.02.2007. He worked as a watchman till 18.02.2008 and thereafter, he has resigned the job and therefore, one Mohammed Muthalif was appointed to the post of watchman on 31.05.2009. He had joined the said post on 01.06.2009. Thereafter, the petitioner institution sent an application with all the required papers to the fifth respondent for approval, but the fifth respondent herein has rejected the said application, as per his proceeding dated 01.09.2009. The Government has issued G.O.Ms.No.203, dated 23.07.2010, granting permission to the aided schools to fill up the post of watchman and the authorities concerned to approve them from the date of their initial appointment. In view of the same, the petitioner has preferred a fresh representation to the authorities on 01.08.2010, but no action has been taken. Again the petitioner made another representation dated 13.12.2010. As no action had taken, the petitioner has been constrained to approach this Court with the present writ petition with the above said prayer. 3.The learned counsel for the petitioner would contend that the petitioner institution filled up the vacancy caused by the resignation of one Syed Ali and the petitioner joined the said post on 01.06.2009 and as such the institution filled up only the permanent vacancy. It is contended that the said post is sanctioned post and the petitioner institution followed rules and regulations strictly by appointing the said person to the post of watchman. It is contended that the petitioner institution preferred an application seeking for the relief of approval of the appointment of the said watchman by enclosing the required documents, but, inspite of the same, the fifth respondent herein has passed the order, dated 01.09.2009, rejecting the application of the petitioner by quoting two G.O.Ms.No.115, dated 30.05.2007 and G.O.Ms.No.189, dated 29.07.2009 and both the said G.Os are not applicable to the petitioner. It is pointed out by the learned counsel for the petitioner, as per the decision of the Division Bench of this Court, dated 16.08.2008, in W.A.No.558 of 2008, G.O.Ms.No.115, dated 30.05.2007, would be applicable only to the vacancies and appointments which arise after the said date and not in respect of appointments which have already been made. It is contended that as far as the case on hand is concerned, the petitioner institution appointed the watchman on the basis of the vacancy arose on 31.01.2007 and he has joined duty on 31.05.2009 and as such, the said G.O.Ms.No.115 is not applicable to the petitioner's case. It is further contended that as far as G.O.Ms.No.189, dated 29.07.2009, is concerned, the said G.O. is not applicable to the post of watchman and as such, the impugned order passed by the fifth respondent is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 3 4.Per contra, the learned Government Advocate would contend that there is no infirmity or illegality in the impugned order. It is contended that as per G.O.Ms.No.115, dated 30.05.2007, and G.O.Ms.No.189, dated 29.07.2009, the fifth respondent cannot grant approval to the appointment of watchman. The learned Government Advocate would further submit that he has to get instruction to find out whether the watchman post is a sanctioned post or not. 5.This Court carefully considered the rival contentions put forward by either side and also perused the materials available on record including the impugned order. 6.At the outset, it is to be stated that the impugned order passed by the fifth respondent is nothing but a cryptic order. The perusal of the said order reveals that the fifth respondent has rejected the application for approval of the appointment of watchman by the petitioner institution by merely quoting and relying two G.Os. viz., G.O.Ms.No.115, dated 30.05.2007 and G.O.Ms.No.189, dated 29.07.2009. As far as G.O.Ms.No.115, dated 30.05.2007, is concerned, the learned counsel for the petitioner rightly placed reliance on the decision of the Division Bench of this Court, dated 16.08.2008, in writ appeal No.558 of 2008, wherein the Division Bench of this Court has held as hereunder; "We do not think the order passed by the learned Single Judge can be upheld, in view of the fact that, in the present case, a vacancy had arisen before issuance of G.O.Ms.No.115 and the appointment had also made before the said date. It is obvious that G.O.Ms.No.115 dated 30.05.2007 can be made applicable only to the vacancies and appointments which arise after the said date and not in respect of appointments which have already been made. When the appointment of the appellant was made, there is a clear vacancy available and therefore, the authority concerned should have only considered that aspect and on the other hand, the order of the District Educational Officer does not indicate anything about such aspect and it has been merely returned." 7.The view taken by the Division Bench is squarely applicable to the facts of this case as in this case also the vacancy arose for the post of watchman as early as on 31.01.2007 and the watchman was appointed on 31.05.2009 and as such the vacancy had arisen prior to the date of G.O.Ms.No.115, i.e., on 30.05.2007. Therefore, this Court has no hesitation to hold that G.O.Ms.No.115, dated 30.05.2007, is not applicable to the case on hand. As far as another G.O. quoted in the impugned order viz., G.O.Ms.No.189, dated 29.07.2009, is concerned, the perusal of the said G.O. makes it clear that the said G.O. does not cover the post of watchman as well as the said G.O. is not applicable to the instant case. The learned Government Advocate sought for time for verification to find out whether the post of watchman is sanctioned post or not. I am of the considered view, if the said post is not a sanctioned post, the said reason could have been mentioned in the impugned order itself, but no such reason assigned in the impugned order, on the other hand, it is seen that even prior to that appointment, the post of watchman was existing for a long time, that too only one post was https://hcservices.ecourts.gov.in/hcservices/ 4 there in the petitioner institution and the vacancy caused due to the resignation of the earlier watchman. 8.In view of these factors, this Court is constrained to set aside the impugned order, dated 01.09.2009, passed in Na.Ka.No.4950/A2/2008 by the fifth respondent and consequently the fifth respondent herein is hereby directed to accord the approval for the appointment of Mohammed Muthalif as watchman from the date of his initial appointment, i.e., from 01.06.2009 and grant monetary benefits. It is made clear that the said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. 9.The writ petition is disposed of accordingly. Consequently, connected miscellaneous petition is closed. No costs. sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar (C.S) To 1.The Secretary to Government, Education Department, Fort. St. George, Chennai -9. 2.The Director of School Education, College Road, Chennai-600 006. 3.The Joint Director of School Education (Higher Secondary), College road, Chennai-6. 4.The Chief Educational officer, Tirunelveli District, Tirunelveli. 5.The District Educational Officer, Tirunelveli District, Tirunelveli. + 1 cc to Mr.K.K.Kannan, Advocate, SR No.37266 W.P.(MD) No.556 of 2011 31.10.2011 gcg RJ/15.11.11 4p/7c https://hcservices.ecourts.gov.in/hcservices/