Dismissed

T.Gurusamy v. the Chief Educational

Madras HC7 Oct 2020WP(MD)/6219/2011

Case brief

AI extract

What is this about?

In two writ petitions, the Court dismissed petitions seeking approval of a teacher's past unapproved appointment and the quashing of a school's recruitment notice. The Court held that approval of management staff appointments is a departmental prerogative and recruitment notices must uphold equal opportunity.

What did the court decide?

Petitions dismissed; cost not awarded.

T.Gurusamy Vs the Chief Educational — Education and Admissions | Madras HC (2020)

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 07.10.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.(MD)Nos.6219 of 2011 and 4110 of 2016 and

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M.P.(MD).Nos.1 and 2 of 2011 and W.M.P(MD).No.3679 of 2016

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W.P.(MD).No.6219 of 2011:

T.Gurusamy

.. Petitioner

Vs.

1.The Chief Educational Officer, Virudhunagar District, Virudhunagar.

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2.Kshatriya Vidhyasala Higher Secondary School, Virudhunagar,

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Rep. by its Secretary.

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.. Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned relieving order dated 30.04.2011 passed by the second respondent and quash the same as illegal and consequentially to direct the first respondent to approve his appointment in the second respondent school as B.T.Assistant (Mathematics) with effect from 05.06.2002 and as PG.Assistant (Mathematics) with effect from 19.09.2005 and pay arrears of salary thereon.

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For Petitioner : Mr.Mohammed Imran for M/s. Ajmal Associates For Respondents : Ms.S.Srimathy Special Government Pleader for R1 Mr.V.Meenakshi Sundaram for R2

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W.P.(MD).No.4110 of 2016:

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T.Gurusamy .. Petitioner

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Vs.

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1.The Director of School Education, College Road, Chennai-6.

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https://hcservices.ecourts.gov.in/hcservices/

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1/7

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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2.The Chief Educational Officer, Virudhunagar District, Virudhunagar.

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3.The District Educational Officer, Virudhunagar, Virudhunagar District.

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Kshatriya Vidhyasala Higher Secondary School, Rep. by its Secretary, Virudhunagar, Virudhunagar District.

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.. Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned notification published by the fourth respondent in his proceedings No.Nil dated 23.02.2016 published in Dhina Thanthi Daily News Paper insofar as appointment to the post of P.G.Assistant (Maths) is concerned, quash the same as illegal and consequentially to direct the fourth respondent to consider the petitioner in the said post within the period that may be stipulated by this Court.

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For Petitioner : Mr.Mohammed Imran for M/s. Ajmal Associates For Respondents : Ms.S.Srimathy

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Special Government Pleader for R1 to R3 Mr.T.Pon Ram Kumar for R4

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COMMON ORDER

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The relief sought for in W.P(MD).No.6219 of 2011 is to quash the order passed by the second respondent in proceedings dated 30.04.2011, which is his relieving order and to direct the first respondent to approve the appointment of the writ petitioner as B.T.Assistant in Mathematics in the second respondent School with effect from 05.06.2002 and as a PG. Assistant in Mathematics with effect from 19.09.2005 and to pay arrears of salary.

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The relief sought for in W.P.(MD).No.4110 of 2016 is to quash the notification published by the fourth respondent in proceedings dated 23.02.2016 published in Dhina Thanthi Daily Newspaper insofar as the appointment to the post of P.G.Assistant (Mathematics) is concerned and quash the same and to direct the fourth respondent to consider the writ petitioner in the said https://hcservices.ecourts.gov.in/hcservices/ post.

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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The petitioner states that the second respondent Kshatriya Vidhyasala Higher Secondary School is a private school receiving grant-in-aid from the State Government. The petitioner is having the qualification of M.Sc., (Mathematics) with B.Ed., he was appointed in the post of B.T. Assistant as management staff on 04.06.2009. There was no vacancy to the post of B.T.Assistant during the relevant point of time. The salary was directly paid by the management. Due to the retirement of one Mr.Balasubramaniam, the vacancy arose in the post of B.T.Assistant(Mathematics). The petitioner states that he was fully qualified for appointment to the post of B.T.Assistant(Mathematics). By order dated 05.06.2002, the petitioner was appointed as B.T.Assistant (Mathematics) in the second respondent school and the proposal was submitted to approve the appointment to the first respondent Chief Educational Officer. However, the appointment was not approved by the competent Authorities on account of the dispute in declaring the School as minority status.

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The learned counsel appearing on behalf of the writ petitioner mainly contended that the Government issued orders in G.O.Ms.No.160 School Education Department, dated 06.07.2007. It is a special Government Order passed in favour of the respondent School and as per the said Government Order all the appointments are to be approved. The Government Order reads as under:

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“_tpy;ypg[j;Jhh; chpikapay; e Pjpkd;wk; cWjp bra;J Mizapl;ljd; mog;gilapy; mg;gs;spf; FGf;fspdhy; ,dRHw;rp Kiwia gpd;gw;whkYk;. bra;jp jhs;fspy; tpsk;guk; bra;ahkYk; ntiy tha;g;gfj;jpypUe;J gl;oay; bgwhkYk;. gzpapl';fspy;. 2/3/95 Kjy; 2/6/2004 tiu epakdk; bra;ag;gl;l ,izg;gpy; fz;Ls;s gs;spf;fy;tp ,af;Feuhy; ghpe;Jiuf;fg;gl;l 30 Mrphpah;(k) Mrphpauy;yhj gzp epakd';fSf;Fk;. kw;;Wk; bjhlf;ff; fy;tp ,af;Feuhy; ghpe;Jiuf;fg;gl;l 52 Mrphpah;(k) Mrphpauy;yhj gzp epakd';fSf;Fk; ,dRHw;rp Kiwia gpd;gw;whik kw;Wk; chpa fy;tpj;Jiw mYtyhpd; Kd; mDkjp bgwhikf;F tpjpfspy;. tpjp 15(7) kw;Wk; (8) kw;Wk; tpjp 15(4) f;F jsh;t[ mspj;Jk;. ntiytha;g;gfj;jpd; K:yk; gl;oay; bgwhikf;F murhiz epiy vz;/873. fy;tp. mwptpay; epge;jidfSf;Fl;gl;L. gzpapl';fSf;F Miz btspaplg;gLk; ehs; Kjy; xg;g[jy; mspf;fyhk; vd Kot[ bra;J mt;thnw muR MizapLfpwJ. (1) ,e;eph;thfj;jpd; f PH ; cs;s midj;J gs;spfSk; bjhlh;e;J rpWghd;ik my;yhj gs;spfshfnt fUjg;glntz;Lk;/

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https://hcservices.ecourts.gov.in/hcservices/ (2) ,J bjhlh;ghf bjhlug;gl;l midj;J tHf;Ffisa[k;

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3/7

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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gs;spf; Tl';;fs; jpUk;gg; bgw;Wf; bfhs;s ntz;Lk;/ (3) gzpapl';fis Kiwg;gLj;jp mDkjp mspf;Fk; ehspypUe;J jw;nghJs;s muR tpjpKiwfSf;Fl;gl;L Cjpak; bgw;Wf; bfhs;s ntz;Lk;/

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(4) murhiz epiy vz;/525. gs;spf; fy;tp (o1) Jiw ehs; 29/1/97 d;go epakd';fs; mikjy; ntz;Lk;/( 1:40)”

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Relying on the above Government Order, the learned counsel appearing on behalf of the petitioner reiterated that it is a special concession granted by the Government to approve the appointment already made and pursuant to the said order, the writ petitioner is entitled for the approval of his appointment.

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The learned counsel appearing on behalf of the respondent School made a submission that the writ petitioner has not stated the complete facts. In fact, all along, he was continuing as a management staff and not the approved staff. The appointment of the writ petitioner was not approved by the competent Educational Authorities. He was relieved from the post on 30.04.2011 itself. Before issuing the relieving order, the management paid salary from the fund of the management. Further, pursuant to the Government Order, no approval was granted to the writ petitioner. In view of the fact that the appointment of the writ petitioner as B.T.Assistant (Mathematics) was not approved by the competent Educational Authorities based on the above said Government Order. Now the writ petitioner cannot seek any approval as the writ petitioner continued only as a management staff and relieved from service on 30.04.2011.

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As far as the W.P.(MD).No.4110 of 2016 is concerned, the writ petitioner is challenging the notification issued by the School. The impugned notification is nothing but paper publication wherein applications are invited from the eligible candidates for appointment to the post of P.G. Assistant (Mathematics). The claim of the writ petitioner is that he is fully qualified for appointment to the post of P.G. Assistant(Mathematics) and therefore, he must be appointed in the said post and recruitment notification cannot be issued.

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The Chief Educational Officer filed counter in W.P.(MD). No.6219 of 2011, wherein it is stated that the writ petitioner was working as B.T.Assistant (Mathematics) and thereafter as P.G.Assistant (Mathematics) in Kshatriya Vidhyasala Higher Secondary School, Virudhunagar on 05.06.2002 and 19.09.2005 respectively. The management of the School appointed the writ petitioner as management staff. There was a dispute with reference to the minority status to be confirmed on the school. The appeal was decided against the school as the suit cannot be https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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maintained in view of the orders of the Hon'ble Supreme Court of India to declare 'minority status'. Meanwhile, the petitioner was relieved from the school on 30.04.2011 on the decision of the school management.

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W.P.(MD).No.6219 of 2011 was filed to approve the appointment of the writ petitioner. Admittedly, the writ petitioner was receiving the management salary while he was working as B.T.Assistant (Mathematics). Therefore, the department has no role to play regarding the management staff. The Education Department need not interfere in this matter as the appointment and payment of salary for the management staffs are the prerogative of the School Management. However, the fact remains that the appointment of the writ petitioner was not approved in the post of B.T.Assistant(Mathematics).

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This Court is of the considered opinion that the undisputed facts are that the writ petitioner was appointed as B.T.Assistant by the School management. He was relieved by the order dated 30.04.2011. The petitioner relies on the Government Order issued in G.O.Ms.No.160 dated 06.07.2007. No doubt, the Government has passed a special order in favour of the School for grant of approval to the teachers working in the School. No approval has been granted to the writ petitioner in the post of B.T. Assistant (Mathematics). The petitioner has challenging the relieving order and sought for a direction to grant approval. Court cannot issue an order of approval directly in a writ petition. The approval of appointment is the subject matter, which is to be scrutinised by the competent Educational Authorities. The Chief Educational Officer, who is also stated that the approval was not granted by the competent Education Authorities that if at all the petitioner was qualified for approval for his appointment in the post of B.T.Assistant(Mathematics). The School management has to submit a proper proposal in accordance with the Rules and Regulations and in the event of any such competent Educational Authorities have to consider the same, contrarily, Court cannot grant any order as there is no materials to establish that the petitioner is entitled for approval. This apart, Court cannot conduct an enquiry regarding the educational qualification and eligibility of a candidate for grant of approval of appointment. The scrutiny has to be made by the Competent Authority based on the proposal sent by the School Management. The impugned order of relieve was issued by the Management. Against the order of relieve passed by the Management, the writ petitioner is having the remedy before the Department. Further, there is no material available on record to establish that the writ petitioner has exhausted the remedy available before the Competent Authority. This being the factum, the writ petitioner is not entitled the relief as such https://hcservices.ecourts.gov.in/hcservices/ sought for in W.P.(MD).No.6219 of 2011.

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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11.As far as the W.P.(MD).No.4110 of 2016 is concerned the paper publication issued inviting applications from all the eligible candidates for appointment to the post of P.G.Assistant (Mathematics) is under challenge. The recruitment notification was issued pursuant to the Rules and the appointments ought to be made by providing equal opportunity to all the candidates, who are all aspiring to securing appointment.

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Such a recruitment can be challenged only if there is any illegality. The case of the petitioner is that he is already working as B.T.Assistant(Mathematics) and therefore, his appointment has to be approved. Admittedly, he was not appointed through a proper selection and he shall continue as management staff. In order to make a proper and legal appointment recruitment notification was issued. Therefore, a relief to quash the recruitment notification cannot be granted by this Court in the writ petition.

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It is brought to the notice of this Court that the writ petitioner had participated in the process of interview in the subsequent recruitment and he was not selected for appointment to the post of B.T.Assistant (Mathematics). In view of the fact that the writ petitioner had participated in the process of interview and not selected, this Court cannot quash the recruitment notification issued with reference to the earlier appointment made pursuant to the impugned notification dated 22.03.2016. This Court is of the considered view that the writ petitioner is not made out any acceptable reasons to grant the relief sought for in both the writ petitions. Accordingly, both the writ petitions stand dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.

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The right of management salary cannot be denied to the petitioner and if any grievance exist regarding the payment of salary, the writ petitioner is at liberty to approach the management and the management is bound to pay, if any salary yet to be paid to the writ petitioner.

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Sd/Assistant Registrar(CS-III)

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// True Copy //

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/ /2020 Sub Assistant Registrar(CS)

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PJL

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)Nos.6219 of 2011 and 4110 of 2016

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1.The Director of School Education, College Road, Chennai-6.

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2.The Chief Educational Officer, Virudhunagar District, Virudhunagar.

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3.The District Educational Officer, Virudhunagar, Virudhunagar District.

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+1 CC to M/s.D. NALLATHAMBI(V.MEENAKSHISUNDARAM), Advocate ( SR19508[F] dated 08/10/2020 )

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+1 CC to M/s.GP ( SR-19572 & 19573[F] dated 09/10/2020 )

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+1 CC to M/s.T. PON RAMKUMAR, Advocate ( SR-19367[F] dated 07/10/2020 )

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Order Made in W.P.(MD)Nos.6219 of 2011 and 4110 of 2016 07.10.2020

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VR(CO) TR(22.10.2020) 7P 7C

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https://hcservices.ecourts.gov.in/hcservices/

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T.Gurusamy v. the Chief Educational

Case brief

What is this about?

What did the court decide?

T.Gurusamy v. the Chief Educational

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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