1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:07.12.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).No.11578 of 2011 and M.P.(MD) Nos.1, 2 and 3 of 2011 Holy Angel Higher Secondary School, Rep. by its Secretary / Correspondent, S.Thomas Christopher, 2-A, Kanagavel Colony, Raja Mill Compound, Madurai - 625 001. :Petitioner -Vs- 1.Government of Tamil Nadu, Rep. by its Secretary, Education Department, Fort St. George, Chennai - 600 009. 2.The Director of School Education, College Road, Nungambakkam, Chennai - 600 006. 3.The Chief Educational Officer, Madurai. 4.The District Educational Officer, Madurai. :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 of the third and fourth respondents relating to their orders in Endorsement m.jp.K.vz;.14145/M1/2010, dated 10.06.2011 and K.K.vz;.7856/M4/11 dated 26.08.2011 respectively, and quash the same and direct the fourth respondent to approve the appointment of Thiru T.Cruz Antony Pallotti as B.T. Assistant (Maths) in the petitioner school with effect from 20.08.2010, the date on which he is appointed and sanction and disburse the grant-in-aid towards his salary, allowances and other attendant benefits. For Petitioner : Mr.V.Sanjeevi For Respondents: Mrs.S.Bharathi,Government Advocate ORDER The petitioner school has filed the present writ petition seeking for the issuance of a Writ of Certiorarified Mandamus calling for the records of the third and fourth respondents relating to their orders in Endorsement m.jp.K.vz;.14145/M1/2010, dated 10.06.2011 and K.K.vz;.7856/M4/11 dated 26.08.2011 respectively, and quash the same and direct the fourth respondent to approve the appointment of Thiru T.Cruz Antony Pallotti as B.T. Assistant (Maths) in the petitioner school with effect from 20.08.2010, the date on which he is appointed and sanction and disburse the grant-in-aid towards his salary, allowances and other attendant benefits. 2.Heard the learned Counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 3.It has been pleaded by the learned Counsel appearing for the petitioner that the petitioner school is a recognized private school enjoying the minority status. However, when the petitioner school filed a suit claiming that Christian religious minority status should be conferred to the petitioner school, in O.S.No.147 of 2007, on the file of the learned Principal District Munsif, Madurai, the same was decreed by judgment and decree dated 15.09.1999. Aggrieved by the said order, the respondent filed an appeal in A.S.No.43 of 2000 on the file of the I Additional Subordinate https://hcservices.ecourts.gov.in/hcservices/ 2 Judge, Madurai. But the same was dismissed, as against the same, a Second Appeal was also filed with an application to condone the delay. Even that condone delay application also came to be dismissed. Thereafter, a restoration application was filed on 28.01.2009 but till date the said application has not been disposed of. Under these circumstances, it was submitted that the petitioner school is a Christian Religious Minority institution. Adding further, the learned counsel appearing for the petitioner submitted that when the petitioner school was having the sanctioned strength, out of the said sanctioned strength, when one of the secondary grade teacher retired, the petitioner school appointed one T.Cruz Antony Pallotti as B.T. Assistant in Mathematics on 20.08.2010. The said post is also an aided one. But in view of the fact that the respondent's second appeal that was filed with an application to condone the delay of 948 days in re-presenting the second appeal papers came to be dismissed and subsequently the restoration application filed on 28.01.2009, also having not been ordered, the respondents cannot take a stand that the petitioner school has appointed the teacher T.Cruz Antony Pallotti as B.T. Assistant in Mathematics without seeking approval from the respondent. At this juncture, the learned Counsel appearing for the petitioner has relied upon an order passed in the case of S.Christy v. The Chief Educational Officer, Kanyakumari District at Nagercoil, Kanyakumari District and three others reported in 2011 (5) CTC 532 to state that for appointment to sanctioned posts no prior approval is necessary and authorities cannot deny approval to appointment of a qualified person on the ground that appointment was made without any prior approval. 4.In reply, the learned Government Advocate appearing for the respondents would contend that so long as the status of the minority institution is still not decided in second appeal, it would be premature to arrive at a conclusion that the petitioner institution is a minority institution. She has further submitted that if for any reason the respondent's second appeal which is in S.R. stage is allowed in favour of the respondent, it would be difficult and impossible to get the salary of T.Cruz Antony Pallotti from the petitioner school. 5.No doubt, the respondents aggrieved by the judgment and decree passed by the District Munsif Court, Madurai, in O.S.No..147 of 1997 has filed the first appeal in A.S.No.43 of 2000 and the same came to be dismissed, on 24.11.2000. Aggrieved by the dismissal of the first appeal, the respondents have also filed a Second Appeal with an application to condone the delay of 948 days in re-presenting the second appeal papers. Thereafter, when notice is ordered in the delay petition in C.M.P.No.2344 of 2005, again the respondents committed default in not paying the batta for effecting the service of notice. Due to the default committed by the respondent, the said C.M.P. No.2344 of 2005 also dismissed on 19.04.2007. Subsequently, the learned Counsel appearing for the petitioner submits that thereafter a restoration application was filed on 28.01.2009 but the said restoration application is still pending. Therefore, in this context, it is pertinent to refer to one another order dated 19.01.2009 passed by this Court in M.P (MD) No.1 of 2008 in W.P.(MD) No.5631 of 2008, directing the District Educational Officer, Madurai, to sanction and pay the staff grant and other benefits from the month of March, 2008, to till date viz., 19.01.2009 and to continue to do the same till the disposal of the main writ petition for the reason that the second appeal filed by the respondent has not been till date decided which goes to show that the respondent has to act on the basis of https://hcservices.ecourts.gov.in/hcservices/ 3 the judgment and decree passed by the Civil Court viz., the learned District Munsif Court at Madurai as confirmed by the judgment in A.S.No.43 of 2000. 6.Prima facie the petitioner school appointed one teacher by name T.Cruz Antony Pallotti as B.T. Assistant in Mathematics in their school on 20.08.2010, by the time the school appointed the said teacher in the post of B.T. Assistant in Mathematics, the status of the petitioner school has been declared as a minority institution by the competent Civil Court both in the judgment and decree passed in O.S.No.147 of 1997 by the learned Principal District Munsif and by the learned First Additional Subordinate Court, Madurai, on 15.09.1999 and in A.S.No.43 of 2001 dated 25.11.2000 respectively. Therefore, as the judgment and decree passed by both the lower and appellate Court have not been till date modified or reversed by the second appellate Court as on today, pending Second Appeal, the respondents are directed to pay and approve the appointment of T.Cruz Antony Pallotti as B.T. Assistant in Mathematics in the petitioner school with effect from 20.08.2010 subject to the result of the second appeal. In the meanwhile, it is needless to mention that the salary of the said teacher also shall be sanctioned and disbursed. The said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. With the above direction, the writ petition is disposed of. No costs Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registrar To: 1.The Secretary to Government, Education Department, Fort St. George, Chennai - 600 009. 2.The Director of School Education, College Road, Nungambakkam, Chennai - 600 006. 3.The Chief Educational Officer, Madurai. 4.The District Educational Officer, Madurai. +1CC to The Special Government Pleader. SR.No.42888. Srm RP/02.01.2012/3P/6C. Order made in W.P.(MD).No.11578 of 2011 and M.P.(MD) Nos.1, 2 and 3 of 2011 Dated:- 07.12.2011 https://hcservices.ecourts.gov.in/hcservices/