IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.4.2008 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL WRIT APPEAL NO.900 OF 2007 and M.P.No.1 of 2007 R.Kuttiswamy working as Junior Assistant Sabhanayaga Mudaliar Hindu Higher Secondary School Sirkali Nagapattinam District ..Appellant vs. 1.Joint Director of School Education (Secondary Education) Chennai 6 2.District Educational Officer Myiladuthurai 3.Secretary Sabhanayaga Mudaliar Higher Secondary School Sirkali Nagapattinam District 4.Government of Tamil Nadu, rep. by its Secretary Education Department Fort St.George Chenni 600 009 ..Respondents Writ Appeal is filed against the order dated 19.01.2007 in W.P.No.34587/2002 presented under article 226 of the constitution of India to issue a Writ of Certiorarified mandamus calling for the records of the first respondent dt.9.5.2002 and direct respondents 1 & 2 to approve the appointment of the petitioner in the post of Junior Assistant in the 3rd respondent school w.e.f.4.4.90 and regularize the services and pay the arrears of salary to the position for the period from 4.4.90 to 31.1.94. https://hcservices.ecourts.gov.in/hcservices/ for appellant : Mr.C.Selvaraj Senior Counsel for Mr.V.Babu for respondents : Mr.S.Gopinathan, A.G.P. JUDGMENT (Judgment of the Court was delivered by ELIPE DHARMA RAO,J.) The writ appeal is filed against the order of the learned single judge dismissing the writ petition wherein it was filed against the order of the 1st respondent dated 9.5.2002 rejecting the appeal petition of Thiru R.Kuttisamy dated 24.8.1994 on the ground that the District Educational Officer, Mayiladuthurai passed an order on 8.8.1994 approving the appointment of the petitioner with effect from 1.2.1994 and on the ground that the appointment of the petitioner was made without obtaining the prior permission of Chief Educational Officer, Nagai and the appointment was not made as per Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The order of the District Educational Officer was passed on the basis of the order passed by this Court dated 26.7.2001 in W.P.No.12117/1995 wherein the abovesaid writ petition was filed against the order of the District Educational Officer dated 8.8.1994 in which the appointment of the petitioner was approved with effect from 1.2.1994 on the ground that against the order of appointment of the writ petitioner, two persons have filed appeals and those appeals were withdrawn on 1.2.1994. After withdrawal of the appeals, the order of approval was passed dated 8.8.1994, against which the appeal was filed. The appeal was rejected confirming the order of the District Educational Officer by order dated 9.5.2002 against which the Writ Petition was filed. The learned single Judge on consideration of the provision of law contained in Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 which stipulates that for filling up the vacancy, approval of the Department is a must and no approval is obtained from the Department before appointing the writ petitioner and the since the third respondent school is the appointing authority, liability solely vests with the school and department only gives grant in the case of any such appointment, rejected the Writ Petition. Against which the present Writ Appeal is filed. 2. Heard the learned senior counsel for the appellant and the learned Additional Government Pleader. 3. It is seen from the rule 15(4) which deals with the appointment of teachers only, nothing is stated in the entire rule about the appointment of the non-teaching staff. The learned Additional Government Pleader has not placed any clarification issued by the Government extending the abovesaid provision of law to the https://hcservices.ecourts.gov.in/hcservices/ appointment of any other posts in the private schools. Therefore, when the rule is confined to the appointment of teachers in the private schools, the Junior Assistant is a non-teaching post which is not covered by Rule 15(4). Therefore, the entire exercise of the respondents with regard to obtaining prior permission before filling up the vacancy as contemplated under Rule 15(4) is not required as insisted by the respondents when an application is made by the Secretary to approve the appointment of the writ petitioner from 4.4.1990 in a vacancy arose due to retirement of A.Kothandapani in the year 1989. The instructions issued by the Chief Educational Officer, Thanjavur dated 23.3.1988 relates to filling up the vacancies of the teachers. But the respondents construed that the rule specifically deals with the appointment of regular vacancies of teachers and rule 15(4) is applicable to the non-teaching staff. According to us, their view is not correct. 4. Moreover, as seen from the facts and circumstances of the case, after the appointment of the petitioner on 4.4.1990, a proposal was submitted for approval of the said post which was rejected on the ground that it is in violation of Rule 15(4). But it has got approval after the withdrawal of the appeals filed by some of the teachers on 1.2.1994. We do not know how the irregularities are rectified by withdrawing the appeals or the violation of rule is curified by withdrawing the appeals by the affected parties. Therefore, after withdrawal of the appeals on 1.2.1994, the violation of Rule 15(4) is still in operation. Therefore, the respondents should not have approved the appointment from the date of withdrawal of the appeals, i.e., 1.2.1994, as we have taken the view that rule 15(4) is not covering the appointment of non-teaching staff. Therefore, the question of obtaining prior approval or after appointment approval of the non-teaching staff does not arise. Therefore, except this there are no other proceedings for approval of the non-teaching staff. When we asked the learned senior counsel about any other proceedings were issued by the Government from time to time with regard to the appointment of the non-teaching staff with regard to the abovesaid private school, it was submitted that no such proceedings were issued by the Government bringing the non-teaching staff post under the purview of rule 15(4). When that is the case, the conclusion arrived at above is correct. 5. The decision of the learned single Judge of this Court rendered in A.MURUGESAN V. STATE OF TAMIL NADU (2007 (4) MLJ 561) holding that rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 will apply only to teaching staff and with regard to the appointment of non-teaching staff, there is no need to get prior permission from the educational authorities is also brought to our notice. 6. The appointment in the vacancy arose due to the retirement of A.Kothandapani on 31.12.1989. Even rule 15(4) deals about the https://hcservices.ecourts.gov.in/hcservices/ promotion of teachers in a regular vacancy and the heading of the rule 15 contemplates qualifications, conditions of service of teachers and other persons. Nothing was mentioned about other persons. But it is clarified under rule (4-A) any person employed in the institution specified in column (1) of the Table mentioned in rule (4-A), aggrieved by an order issued under sub-rule (4) may prefer an appeal to the authority speficied in the corresponding entry in column (2) thereof. Column (1) mentions with regard to the Pre-primary, Primary or Middle Schools, the authority is the Chief Educational Officer. Sub-rule 4(i) mentions promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 4(ii) mentions that appointments to the various categories of teachers shall be made by the following methods:- (i) Promotion from among the qualified teachers in that school. (ii)If no qualified and suitable candidate is available by method (i) above,- (a)Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers. (b)Appointment of teachers from any other school. (c)Direct recruitment. Nothing was mentioned about the appointment of non-teaching staff. Perhaps, the respondents are of the view that it was mentioned in the rule in the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers' Training Institutions setting out the reasons for such appointment. `Other persons' means `persons appointed from other schools in the teacher post'. Therefore, it is nothing to do with the appointment of non-teaching staff. If no qualified and suitable candidate is available by method (i) above, the appointment of other persons employed in that school provided they are fully qualified to hold the post of teachers. This made the respondents to understand that `any other persons' means `non-teaching staff'. But, Rule 15(4)(i) mentions that the promotion shall be made on grounds of merit and ability, seniority being considered when merit and ability are approximately equal. If no qualified and suitable candidate is available by method (i), appointment of other prersons employed in that school provided they are fully qualified to hold the post of teachers. Therefore, the entire exercise undertaken by the Secretary making an application for approval of the appointment of the petitioner in a regular vacancy dated 4.4.90 is a futile exercise in the eye of law. 7. Therefore, we hold that as already held by the learned single Judge of this Court in the decision rendered in A.MURUGESAN https://hcservices.ecourts.gov.in/hcservices/ V. STATE OF TAMIL NADU, (2007) 4 MLJ 561), rule 15(4)of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 does not deal with the appointment of non-teaching staff. Therefore, the petitioner is entitled for regularisation and approval of appointment from the date of appointment in a regular vacancy caused due to the retirement of A.Kothandapani from 4.4.1990 and his appointment is valid. 8. The Writ Appeal is allowed accordingly. No order as to costs. Consequently, connected pending miscellaneous petition is disposed of. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sal To 1.The Joint Director of School Education (Secondary Education) Chennai 6 2.The District Educational Officer Myiladuthurai 3.The Secretary, Education Department Fort St.George,Chenni 600 009 + 1 CC to the Government Pleader SR NO 26358 + 1 CC To Mr.V.Babu, Advocate SR NO.25809 W.A.No.900/2007 & M.P.NO.1 OF 2007 SSV(CO) SRA(28/05/2008) https://hcservices.ecourts.gov.in/hcservices/