IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NOS.4221, 4222 AND 4224 OF 2009 AND M.P.NOS.1 TO 1 OF 2009 The Secretary The KRC ARC Girls Higher Secondary School Muthialpet, Chennai – 600 001. ... Petitioner in all WPs Versus 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 – 600 006. 3.The Chief Educational Officer Panagal Building Saidapet, Chennai – 600 015. 4.The District Educational Officer Choolaimedu, Chennai – 600 094. ... Respondents in all WPs' PRAYER IN W.P.NO.4221/2009: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records in Na.Ka.No.2826/A- 1/2008, dated 28.08.2008 on the file of the 4th respondent and quash the same and consequently direct the 2nd to 4th respondents to regularize the appointment of Mrs.J.Ramanibai, Lab Attender in the petitioner's school, KRC ARC Girls Higher Secondary School, Muthailpet, Chennai - 1 with all monetary and attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN W.P.NO.4222/2009: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records in Na.Ka.No.2813/A- 1/08, dated 29.08.2008 on the file of the 4th respondent and quash the same and consequently direct the 2nd to 4th respondents to regularize the appointment of Mrs.A.Ponni, Home Science Attender in the petitioner's school, KRC ARC Girls Higher Secondary School, Muthailpet, Chennai - 1 with all monetary and attendant benefits. PRAYER IN W.P.NO.4224/2009: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records in Na.Ka.No.2815/A1/08, dated 29.08.2008 on the file of the 4th respondent and quash the same and consequently direct the 2nd to 4th respondents to regularize the appointment of Mrs.B.Santhakumari, Librarian, in the petitioner's school, KRC ARC Girls Higher Secondary School, Muthailpet, Chennai - 1 with all monetary and attendant benefits. For Petitioner : Mr.G.Munirathnam for Mr.K.R.Santhanagopal For Respondents : Mrs.Lita Srinivasan Government Advocate COMMON ORDER The petitioner runs Girls Higher Secondary School in the name of KRC ARC Girls Higher Secondary School at Muthialpet, Chennai – 600 001. It was established in the year 1945. The object for establishing the school was to promote girls education in the backward areas of North Madras, taking into account that the women are denied access to education. The school has got the approved strength of teachers and non-teaching staff. The Inspector of Girls School, North Madras sanctioned the non-teaching staff posts vide proceedings Rc.No.1906/64 dated 29.06.1964. The issue is relating to filling up of some categories of non-teaching staff. 2.While so, the Library Clerk in the petitioner school by name Tmt.M.R.Padmassini, retired on 31.12.1997; the Home Science Attender Tmt.A.Renuka Devi, retired on 30.11.2000; the Sweeper Selvi. Gnanambal died on 14.11.2001; the Lab Assistant Ms.K.Mohanambal retired voluntarily with effect from 01.01.2005. The post of Junior Assistant also fell vacant and there is no controversy now regarding the post of Junior Assistant, as the petitioner was permitted to appoint Junior Assistant. https://hcservices.ecourts.gov.in/hcservices/ 3.Since the Government of Tamil Nadu imposed ban on recruitment vide G.O.Ms.No.212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001, except to the posts of Teachers, Doctors and Police Constabulary, the vacancies referred to above were not filled up in the petitioner school. 4.Subsequently, the Government issued another order in G.O.Ms.No.14, Personnel and Administrative Reforms (P) Department, dated 07.02.2006 lifting the ban on recruitment imposed vide G.O.Ms.No.212. 5.Under those circumstances, the petitioner made a representation dated 17.11.2006 seeking permission to fill up the the vacancies as the ban was lifted by the Government. Since no order was passed, the petitioner filed a writ petition in W.P.No.17151 of 2007 for a direction to consider their representation dated 17.11.2006 to permit them to appoint non-teaching staff in the existing vacancies. 6.This Court passed an order on 08.05.2007 in W.P.No.17151 of 2007 directing the third respondent herein to consider the petitioner's representation dated 07.11.2006 and to pass appropriate orders, on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of the said order. 7.Since no order was passed and the ban on recruitment was lifted as stated above, the petitioner appointed Tmt.J.Ramanibai as Lab Assistant, Tmt.A.Ponni as Home Science Attender and Tmt.I.Jeeva as Sweeper by individual orders dated 23.11.2007 and Mrs.B.Santhakumari was appointed as Library Clerk by an order dated 23.12.2007. 8.The petitioner sent a letter dated 23.12.2007 to the fourth respondent seeking approval to regularise the appointment of non-teaching staff, who were appointed as stated above. However, the fourth respondent passed individual orders in August 2008 refusing to approve the appointments on the ground that the ban on recruitment imposed in G.O.Ms.No.212 relating to non-teaching staff in the schools is still continued with regard to the appointments of non- teaching staff. 9.The petitioner has filed the writ petition in W.P.No.4221 of 2009 challenging the order dated 28.08.2008 of the fourth and for a consequential direction to the respondents 2 to 4 to regularize the appointment of Mrs.J.Ramanibai, Lab Attender, in their school with all monetary and attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 10.The petitioner has filed the writ petition in W.P.No.4222 of 2009 challenging the order dated 29.08.2008 of the fourth respondent and for a consequential direction to the respondents 2 to 4 to regularize the appointment of Mrs.A.Ponni, Home Science Attender, in their school with all monetary and attendant benefits. 11.The petitioner has filed the writ petition in W.P.No.4224 of 2009 challenging the order dated 29.08.2008 of the fourth respondent and for a consequential direction to the respondents 2 to 4 to regularize the appointment of Mrs.B.Santhakumari, Librarian, in their school, with all monetary and attendant benefits. 12.Notice of motion was ordered on 24.03.2009. The respondents have filed counter affidavits. 13.Heard Mr.G.Munirathnam, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. I have perused the materials available on record. 14.The learned counsel for the petitioner submits that the impugned orders are erroneous. According to him, there was no ban on recruitment prior to G.O.Ms.No.212. While imposing ban on recruitment to all categories of posts, the order imposing ban itself excluded within its purview the appointment of Teachers, Doctors and Police Constabulary. Therefore, the ban was relating to appointment of other categories of posts in Government Service. Later, the Government lifted the ban vide G.O.Ms.No.14 dated 07.02.2006. Hence when the ban was lifted on 07.02.2006, the position before 29.11.2001 was restored and that therefore, the fourth respondent is not correct in stating that as far as non-teaching staff are concerned, the ban issued in G.O.Ms.No.212 continues. 15.The learned Government Advocate submits that it is true that the ban was lifted vide G.O.Ms.No.14 as referred to above. But according to her, the Government have issued another order in G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007 directing the aided schools such as the petitioner, not to appoint the non-teaching posts mentioned therein. Hence the impugned orders of the fourth respondent are in accordance with G.O.Ms.No.115. The learned Government Advocate also reiterates the averments made in the counter affidavits. https://hcservices.ecourts.gov.in/hcservices/ 16.It is not in dispute that the Inspector of Girls School, North Madras sanctioned the non-teaching staff posts in the proceedings Rc.No.1906/64 dated 29.06.1964 on permanent basis. It is also not in dispute that such a sanction is still valid. 17.The petitioner made a detailed representation dated 23.12.2007 to the fourth respondent, wherein it has been categorically stated that whenever vacancy arose with respect to Lab Assistant, Library Clerk, Sweeper and Home Science Attender, the vacancy was recognized by specific orders of the competent authority of the Department. It is stated therein that every year the school has been receiving departmental communication confirming the vacancy position in respect of non-teaching staff, including the posts referred to above. It is also stated that the Chief Educational Officer's order dated 18.09.2006 specified the requirement of non- teaching staff in the school based on the sanctioned strength. 18.Though this Court passed an order on 08.05.2007 in W.P.No.17151 of 2007 directing the third respondent herein to dispose of the petitioner's representation dated 17.11.2006 seeking permission to fill the posts that were lying vacant for a long time, not being filled up due to ban on recruitment imposed by the Government, no order was passed by the third respondent herein in compliance of the direction issued by this Court. 19.In these circumstances, left with no alternative as the ban on recruitment was lifted and as the posts were lying vacant for a long time and since those posts are sanctioned posts, the petitioner appointed Tmt.J.Ramanibai as Lab Assistant, Tmt.A.Ponni as Home Science Attender, and Tmt.I.Jeeva as Sweeper by individual orders dated 23.11.2007 and Mrs.B.Santhakumari as Library Clerk by an order dated 23.12.2007. Thereafter, the petitioner wrote a letter dated 23.12.2007 to the fourth respondent seeking permission to regularize those appointments stating the aforesaid reasons. 20.In the aforesaid background, I do not find any illegality committed by the petitioner in appointing Tmt.J.Ramanibai as Lab Assistant, Tmt.A.Ponni as Home Science Attender, Tmt.I.Jeeva as Sweeper and Mrs.B.Santhakumari as Library Clerk, particularly when the school has not chosen to pass orders as per the direction of this Court seeking permission to fill the vacancies that were lying vacant for a long time. 21.The impugned orders state that the ban imposed in G.O.Ms.No.212 on recruitment still continues regarding the filling up of the vacancies of non-teaching staff in schools. The relevant portion of the impugned orders is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "Mrphpauy;yhj fhyp gzpaplj;jpid bghWj;j kl;oy; Miz vz; 212 ehs; 29-11-01 kw;Wk; muRf;fojk; vz; 11452-gp2-06-1 ehs; 26-5-2006 d;go cjtpbgWk; gs;spfspy; mYtyf gzpahsh;fs; epakdj;jpw;F jilahiz tpyf;fp bfhs;sg;glhjjhy; ,e;epakdj;jpw;Fk; Vw;g[ mspf;f ,ayhJ." 22.I am of the considered view that the reason given by the fourth respondent for not approving the appointment of the Tmt.J.Ramanibai as Lab Assistant / Tmt.A.Ponni as Home Science Attender / Tmt.I.Jeeva as Sweeper / Mrs.B.Santhakumari as Library Clerk is not correct. 23.In this regard, G.O.Ms.No.212 that imposed ban on recruitment is extracted hereunder: "GOVERNMENT OF TAMIL NADU ABSTRACT PUBLIC SERVICES – Filling up of vacant posts except certain categories of posts such as Teachers, Doctors and Police Constabulary – completely banned – Orders – Issued. PERSONNEL & ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.Ms.No.212 Dated 29.11.2001 ORDER: The Government has decided to affect economy in expenditure and accordingly direct that filling up of vacant posts shall be completely banned except certain categories of posts such as Teachers, Doctors and Police Constabulary, which may be identified and declared as essential posts. Proposals for filling vacant posts considered essential by any Department will be placed before a Committee consisting of Chief Secretary, Finance Secretary and Secretary (Personnel and Administrative Reforms)." 24.The Government lifted the ban on recruitment that was imposed in G.O.Ms.No.212, vide G.O.Ms.No.14 and the same is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "GOVERNMENT OF TAMIL NADU ABSTRACT Public Services – Ban on filling up of vacant posts by direct recruitment except certain categories of posts such as Doctors, Teachers and Police Constabulary – Lifting of ban – Orders issued. PERSONNEL & ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.Ms.No.14 Dated 7.2.2006 Read: G.O.Ms.No.212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001 ORDER: The Government have issued orders completely banning the filling up of vacant posts by direct recruitment, except in respect of certain categories of posts such as Teachers, Doctors and Police Constabulary considered essential, vide. the Government orders read above. 2.The Government, after careful consideration have decided to lift the ban orders for filling up of posts by direct recruitment. 3.The Government accordingly direct that the ban on filling up of posts by direct recruitment issued in the Government Order cited be lifted with immediate effect. The orders in G.O.Ms.No.212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001 are cancelled." 25.Reading of G.O.Ms.No.14 makes it very clear that the ban imposed in G.O.Ms.No.212 was lifted in total. While lifting the ban, the Government did not say that G.O.Ms.No.212 would still continue to operate as against the recruitment of non-teaching staff in the schools. When G.O.Ms.No.14 makes it very clear that the ban is lifted, the letter dated 26.05.2006 referred to in the impugned orders could not impose ban on recruitment of non-teaching staff. Hence, I am of the considered view that the reasons given in the impugned orders have no basis and the impugned orders are illegal. 26.In para – 11 of the counter affidavit, it is stated that in the absence of specific Government orders approving the https://hcservices.ecourts.gov.in/hcservices/ appointments of Record Clerk, Lab Assistant, Home Science Attender etc., the fourth respondent, being the competent authority for approval, cannot approve the appointment. The relevant portion in para – 11 of the counter affidavit is extracted hereunder: "11.It is submitted that the absence of specific Government orders permitting the appointments of Record Clerks, Lab Assistants, Home Science Attenders etc., the District Educational Officer, Chennai East, Chennai – 94 being the competent authority for approval, cannot approve the appointments....." 27.In my view, no specific Government Order is required for appointment of the posts that were already sanctioned and particularly, when the order sanctioning the post, is still valid. As already stated above, the Department recognized that vacancies arose in those posts, since those posts are sanctioned posts. As the Department recognised by various communications sent every year, as stated in the detailed letter dated 23.12.2007, confirming the vacancy position in the above said posts of non-teaching staff, there is no necessity for getting permission to fill up those posts. It is a different matter that the ban is in operation. In the absence of ban, no specific orders from the Government permitting the filling up of the posts is necessary. The fourth respondent is bound to approve the appointment of those posts, if those posts are sanctioned posts and the school requires those posts as stated by the third respondent in the letter dated 18.09.2006 confirming the requirement of those posts. Thus, there is no option but to approve the appointments of Tmt.J.Ramanibai as Lab Assistant, Tmt.A.Ponni as Home Science Attender, Tmt.I.Jeeva as Sweeper and Mrs.B.Santhakumari as Library Clerk. 28.The fourth respondent cannot rely on G.O.Ms.No.212 and a Government letter in 2006 as if ban on recruitment is continuing for non-teaching staff in the school alone. In fact, the Government cannot continue ban in the recruitment of non-teaching staff alone, while it chooses to lift ban on recruitment in all other Departments unless the Government has any specific reasons therefor. It is not stated that the Government has any specific reason for continuing ban in relation to non-teaching staff in schools. In fact, it was their intention to retain the ban on recruitment for non-teaching staff, that could have been made clear in G.O.Ms.No.14 itself. But the G.O.Ms.No.14 does not state so. Hence the impugned orders have no basis and have to be interfered with. 29.However, the learned Government Advocate seeks to sustain the impugned orders basing reliance on G.O.Ms.No.115, School Education Department, dated 30.05.2007. In my view, the same is not available as the fourth respondent does not rely on the same in the https://hcservices.ecourts.gov.in/hcservices/ impugned orders. In any event, I am of the view that G.O.Ms.No.115 is not applicable to the three posts i.e. Lab Assistant, Library Clerk and Home Science Attender and is applicable to the post of Sweeper. 30.G.O.Ms.No.115 is extracted hereunder: "gs;spf; fy;tp (o2) Jiw murhiz (epiy) vz; 115 ehs; 30/5/2007 gof;fg;gl;lit 1/ gs;spf; fy;tp ,af;Feh;. brd;id-6 fojk; e/f/vz; 30072-o1 (4)-06 ehs; 11/12/2006 kw;Wk; 71599- o(,4)-99. ehs; 16/4/2007 2/ murhiz (1 o) vz; 37. gs;spf; fy;tpj; Jiw ehs; 8/2/2007 Miz:- ghh;it 2y; gof;fg;gl;l murhizapy;. muR cah;epiy kw;Wk; nky;epiyg; gs;spfspy; cs;s Mrphpauy;yhg; gzpapl';fis epug;g[tjw;F fPH;f;Fwpg;gpl;lthW mDkjp mspj;J Miz btspaplg;gl;lJ/ 1/ fhypahf cs;s midj;J ,sepiy cjtpahsh; gzpapl';fisa[k; epug;gyhk;/ 2/ fhypahf cs;s fhtyh; gzpapl';fspy;. 50% gzpapl';fis jdpahh; Kfik K:yk; (outsourcing) TEXCO K:yk; epug;gyhk;/ 3/ fhypahf cs;s midj;J Jg;g[uthsh; kw;Wk; bgUf;Fgth; gzpapl';fisa[k; jdpahh; Kfik (outsourcing) K:yk; epug;gyhk;/ 4/ fhypahf cs;s njhl;lf;fhuh; kw;Wk; jz;zPh; Cw;Wgth; gzpapl';fis epug;gj; njitapy;iy/ 5/ fhypahf cs;s midj;J mYtyf cjtpahsh; gzpapl';fis epug;gj; njitapy;iy/ 6/ 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;/ 2/ gs;spf; fy;tp ,af;Feh; ghh;it xd;wpy; gof;fg;gl;l jdJ fojj;jpy; khepyj;jpy; cs;s muR cjtpiag; bgWk; gs;spfspy; cs;s Mrphpauy;yhj gzpapl';fspy; fPH;f;fz;lthW fhypg;gzpapl';fs; cs;sjhfhj; bjhptpj;Js;shh; gzpaplk; fhypg;gzpapl';fs; ,sepiy cjtpahsh; 164 mYtyf cjtpahsh; 281 fhtyh; 176 Jg;g[uthsh; 29 https://hcservices.ecourts.gov.in/hcservices/ gzpaplk; fhypg;gzpapl';fs; bgUf;Fgth; 40 Jg;g[uthsh; kw;Wk; bgUf;Fgth; 7 ,e;epiyapy; nkny gj;jp 1y; muR cah;epiy kw;Wk; nky;epiyg; gs;spfspy; cs;s Mrphpauy;yhg; gzpapl';fis epug;g mDkjp btspaplg;glLs;s murhizapd; mog;gilapy;. muR cjtp bgWk; cah;epiy kw;Wk; nky;epiyg; gs;spfspy; cs;s Mrphpauy;yhg; gzpapl';fisa[k; mnj nghd;W epug;gpl fPH;f;Fwpg;gpl;Ls;sthW mDkjp mspj;J muR MizapLfpwJ/ 1/ muR cjtp bgWk; cah;epiy kw;Wk; nky;epiyg; gs;spfspy; jw;nghJ fhypahf cs;sjhfj; bjhptpf;fg;gl;Ls;s 154 ,sepiy cjtpahsh; gzpapl';fisa[k; epug;gplyhk;/ 2/mYtyf cjtpahsh; gzpapl';fisg; bghWj;jtiu bkhj;j fhypg; gzpapl';fshf bjhptpf;fg;gl;Ls;s 281 gzpapl';fspy; 50 rjtpfpj gzpapl';fis mjhtJ 140 gzpapl';fis kl;Lk; epug;gpl jw;nghJ mDkjp mspf;fg;gLfpwJ/ mt;thW epug;g[k; nghJ. mg;gzpapl';fspy;. jw;nghJ gpd;gw;wg;gLk; tpjpKiwfspd;go khzth; vz;zpf;ifapd; mog;gilapy;. jFjpa[s;s gzpapl';fspd; vz;zpf;ifapid Kjypy; eph;zak; bra;J. mj;jifa gzpapl';fs; 140-f;Fk; mjpfkhf ,Uf;Fk; gl;rj;jpy;. mtw;Ws; Kjypy; fhypnaw;gl;l 140 gzpapl';fis epug;gplyhk;/ 3/ epug;gg;gl ntz;oa fhtyh;. Jg;g[uthsh;. bgUf;Fgth; kw;Wk; Jg;g[uthsh; (k) bgUf;Fgth; Mfpa gzpapl';fisg; bghWj;jtiu. muR gs;spfisg; nghy; cjtpbgWk; gs;spfspYk;. ,jw;fhd brytpid me;je;jg; gs;spfns Vw;Wf; bfhs;s ntz;Lk; vd;w epge;jidfSf;Fl;gl;L. ,g;gzpapl';fis btspahl;fisf; bfhz;L (outsourcing) epug;gplyhk;/ 4/ ,t;thiz epjpj;Jiwapd; m/r/vz; 1430/FS/P07 ehs; 27.4.2007 ,y; bgwg;gl;l – ,irt[ld; btspaplg;gLfpwJ/" 31.After G.O.Ms.No.115, the school was permitted to fill the vacancy of Junior Assistant. In fact, there was some restriction in the matter of appointment of Junior Assistant as per G.O.Ms.No.115. But there is no restriction as to the appointment of Library Clerk, Lab Assistant and Home Science Attender in Higher Secondary Schools. In my considered view those posts are very essential like teacher posts. Though they are classified as non- teaching posts, the students cannot be taught in higher secondary schools without theses posts. Without a Lab Assistant and without a Home Science Attender, it is difficult for the school to impart education in science. Likewise, the Library Clerk is the only person who handles the entire Library and no other person is provided in the https://hcservices.ecourts.gov.in/hcservices/ Library. I am stated that in Central Board schools there are more persons provided to handle Library as per the CBSE regulations. There are 1400 students studying in the petitioner's school and the school also has a Library for a long time and the post was sanctioned from 1966. Hence, the respondents cannot now state that they could not approve the above three posts. Since, as stated above, G.O.Ms.No.115 is not referred to in the impugned orders, the fourth respondent cannot improve by advancing an argument now to sustain the impugned order by importing G.O.Ms.No.115 to sustain the same. 32.It is well settled principles that the respondents cannot give a new reason that is not stated in the impugned order as held by the Honourable Supreme Court in MOHINDER SINGH GILL VS. THE CHIEF ELECTION COMMISSIONER, NEW DELHI reported in AIR 1978 SC 851. 33.In the result, the writ petitions are allowed and the impugned orders are quashed. The respondents 2 to 4 are directed to approve/regularize the appointments of Tmt.J.Ramanibai, Tmt.A.Ponni and Mrs.B.Santhakumari as Lab Assistant, Home Science Attender and Library Clerk respectively from the date of joining the posts, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar TK To To 1.The Secretary Government of Tamil Nadu Department of School Education Fort St. George, Chennai – 600 009. 2.The Director of School Education DPI Campus, College Road, Chennai – 600 006. https://hcservices.ecourts.gov.in/hcservices/ 3.The Chief Educational Officer Panagal Building, Saidapet, Chennai – 600 015. 4.The District Educational Officer Choolaimedu, Chennai – 600 094. +3 ccs to Mr. K.R.Santhana Gopal, Advocate SR.55108 + 1 cc to Government Pleader SR.55404 W.P.NOS.4221, 4222 & 4224 OF 2009 VSV(CO) EU 6.08.2010. https://hcservices.ecourts.gov.in/hcservices/