IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.9.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.25103 of 2009 A.Rayappan .. Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government School Education Department Secretariat, Chennai – 9. 2. The Director of School Education Chennai – 6. 3. The District Educational Officer Coimbatore District, Coimbatore. 4. St.Michael's Higher Secondary School rep. by its Correspondent Big Bazar Street Coimbatore – 641 001. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in G.O.Ms.No.115, School Education Department, dated 30.5.2007, insofar as clause (v) and the consequential order passed by the third respondent in his proceedings O.Mu.No.3307/ 3308/3310/A2/2008, dated 18.6.2008 and quash the same insofar as the petitioner is concerned and direct the respondents to approve the appointment of the petitioner as Office Assistant from 1.7.2007 with all consequential benefits. For Petitioner : Mr.M.A.Abdul Wahab For Respondents : Ms.P.Rajalakshmi Government Advocate (Edn.) for respondents 1 to 3 Mr.A.Xavier Arulraj for 4th respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner claims that he was appointed as an Office Assistant in the fourth respondent/School on account of the retirement of one M.P.Belavendiran. He also claims that he was appointed on 1.7.2007. When proposals for approving his appointment were sent, the third respondent, namely the District Educational Officer, Coimbatore, instead of approving his appointment, directed the management that they will have to follow the government order in terms of G.O.Ms.No.115, School Education Department, dated 30.5.2007 for filling up the post. It was also required that for filling up the post prior permission of the department is required. Since the petitioner's post was not approved and aggrieved by the government order referred to by the third respondent, the petitioner has come forward to challenge condition (v) of G.O.Ms.No.115, School Education Department, dated 30.5.2007, which reads as follows: "(v) fhypahf cs;s midj;J mYtyf cjtpahsh; gzpapl';fspy;. 50# gzpapl';fis epug;gyhk;/ kPjpa[s;s gzpapl';fis kW Ma;t[ bra;jgpd; epug;gyhk;/" As per the said condition, the management of higher secondary and high schools can fill up all posts of Office Assistant to the extent of 50% and balance 50% can be filled up only after the review is done by the department. 2. The contention of the petitioner was that his appointment was on account of the retirement of an earlier employee, which means that the post is available for being filled up. The second contention was that when the review of the student strength was done in respect of the fourth respondent school for the year 2007-2008, it is clearly shown that two posts of Office Assistants were allowed and two posts can be allowed to be filled up. But in the guise of the government order his post is not being sanctioned and hence, condition (v) of the impugned government order should be set aside so as to make the subordinate officers to approve his appointment. 3. The writ petition was admitted on 9.12.2009. Pending the writ petition, in the petition for direction to grant approval only notice was ordered. On notice from this Court, the third respondent has filed a counter affidavit on behalf of respondents 1 to 3 dated Nil (October, 2010) together with supporting documents in the form of a typed set. 4. The stand taken by respondents 1 to 3 was that the government order impugned in this writ petition was issued for the purpose of guiding the department for filling up the post of Office Assistant and as per the guidelines, only 50% of the vacancies in the post of Office Assistant existing in aided schools up to 30.5.2007 can be https://hcservices.ecourts.gov.in/hcservices/ filled up by direct recruitment. The total number of vacancies of Office Assistant that existed up to 30.5.2007 were 281 and therefore, 50% of the said vacancies only works out to 140 posts. The fourth respondent/school is already having sanctioned posts of two Office Assistants and in one post M.P.Belavendiran had attained the age of superannuation on 30.6.2007 and the said post was not included as eligible to be filled up by the management. The vacancy in the fourth respondent/School obviously arose after the issuance of the impugned government order. It is also stated that even a minority school will have to abide by the financial norms as well as the guidelines fixed by the Government in the matter of filling up of the vacancies. Since the petitioner's appointment was not brought to the notice of the authorities for the grant purpose and no application was submitted, the question of considering his claim will not arise. It was also stated that any post in excess of 50% can be filled up only after getting sanction from the State Government. 5. Even though the fourth respondent was served and entered appearance, no counter has been filed. The learned counsel for the fourth respondent states that subsequently, the government has issued G.O.Ms.No.203 on the revised staff pattern and therefore, G.O.Ms.No.115, School Education Department, dated 30.5.2007 is no longer in force. 6. It must be noted that whether it is a minority or non- minority school, in the matter of grant-in-aid they are governed by the relevant government orders and for the purpose of filling up the post under Rule 15(1) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 the private school shall not exceed the number of posts sanctioned by the Director of School Education from time to time with reference to the academic requirements, teacher- pupil ratio and overall financial considerations. When there is a vacancy either due to retirement, death or resignation, the School is obliged to seek prior permission to fill the post and it is only after getting permission, the question of appointing and seeking approval for appointment will arise. 7. The said position of law has been clarified by the Supreme Court vide its judgment in State of Tamil Nadu and others Vs. Amala Annai Higher Secondary School, [2009] 9 SCC 386 while dealing with a similar case in respect of a minority institution. In paragraphs [11] to [15] of the said judgment, the Supreme Court observed as follows: "11. Secondly, insofar as GOMs No.340 dated 1-4-1992 is concerned, it is not attracted at all. GOMs No.340 dated 1-4-1992 issued by the Education Department mentions: "Accordingly, the following staffing pattern, was recommended by the Committee for deciding the eligibility for post for the schools in question (opened in 1987-1988 and earlier)... " https://hcservices.ecourts.gov.in/hcservices/ Thus, GOMs No.340 dated 1-4-1992 containing norms for sanction of posts is applicable to the High Schools opened in 1987-1988 and earlier. In the present case, the School was upgraded to High School in 1988-1989. 12. Thirdly, the Division Bench as well as the Single Judge overlooked and ignored sub-rule (2) of Rule 6 of the Rules, 1977 which reads: "6.(2) Payment of monthly staff grant shall be made only in respect of qualified and admissible teachers actually employed in minority schools whose appointments have been approved by the authorities concerned according to the number of posts sanctioned to the institution concerned." Admittedly, in the present case, the management of the School appointed Ms.Rosary as Junior Assistant to a non- sanctioned post. The explanation of the management that she was appointed in anticipation of orders from the competent authority hardly merits acceptance. 13. Fourthly, as per the norms issued in relevant GOMs the strength of the School during 1990-1991 was only 300 and above while the students' strength of the School during 1990-1991 was only 281. As a matter of fact, it is not even the case of the management that during 1990- 1991, the student strength was 300 or more. The student strength during 1993-1994 and subsequent years has no relevance. It is here that the High Court fell into a grave error because what was important under the relevant GOMs was that the student strength must have been 300 or more during the years 1988-1989, 1989-1990 and 1990-1991. 14. Fifthly, the reliance placed by the High Court on GOMs No.245/Education dated 21-2-1970 is misplaced inasmuch as the said G.O. applied to clerks who were already employed in and around the year 1964 and has no application to a Junior Assistant appointed to a non- sanctioned post in 1988-1989. 15. Last but not the least, the High Court erred in directing the present Appellant 1 to sanction one post of Junior Assistant to Respondent 1, AAHS School from 1- 6-1994 overlooking and ignoring that creation and sanction of posts is the prerogative of the executive and the courts cannot arrogate to themselves a purely executive power. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the petitioner cannot demand as a matter of right approval and payment of salary. 8. Subsequently, a similar question also came up before the Supreme Court in Kolawana Gram Vikas Kendra Vs. State of Gujarat and others, JT 2009 (13) SC 581 : [2010] 1 SCC 133. In paragraphs [6] to [8], the Supreme Court observed as follows: "6. In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly, whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter affidavit. Para 3 of the said affidavit reads as under: "Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed." 7. From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also. 8. In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional https://hcservices.ecourts.gov.in/hcservices/ interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals. However, Mr.Ahmadi raised another point saying that if the prior approval or the no objection certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent authority to issue the no objection certificate within the time provided in the said circular which is of seven days. Of course, if there are any objections, the authority will be justified to take some more time within the reasonable limits." 9. If these two rulings are applied, the contention of the petitioner that his appointment should be given approval as a matter of right cannot be considered. If there are any subsequent orders of the State Government, parties can workout their rights in accordance with that orders. In the said circumstances, there is no case made out. Accordingly, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar sasi To: 1. The Secretary to Government School Education Department State of Tamil Nadu Secretariat, Chennai – 9. 2. The Director of School Education Chennai – 6. 3. The District Educational Officer Coimbatore District, Coimbatore. 1 cc To Government Pleader, SR.No.57126 W.P.No.25103 of 2009 pa(co) pmk.27.9.2011 https://hcservices.ecourts.gov.in/hcservices/