Allowed

Maria Thangam.J v. the State of Tamil Nadu

Madras HC8 Feb 2023WP(MD)/713/2022

Case brief

AI extract

What is this about?

The Court allowed the writ petition, holding that the post of Lab Assistant did not lapse under the relevant Government Order despite the incumbent's retirement. The order rendering the post surplus was set aside, and the respondent authorities were directed to approve the petitioner's appointment and release salary grants.

What did the court decide?

The writ petition is allowed. The impugned order is set aside. The respondents are directed to approve the petitioner's appointment and release salary grants from the date of appointment within twelve

Maria Thangam.J Vs the State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2023)

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W.P.(MD)No.713 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 10.04.2023

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

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W.P.(MD)No.713 of 2022 and W.M.P(MD)No.564 of 2022

J.Maria Thangam

... Petitioner

1.The State represented by The Principal Secretary, Department of School Education, Fort St.George, Chennai – 600 009.

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2.The Director of School Education, College Road, Chennai – 600 006.

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3.The Chief Educational Officer, Thoothukudi, Thoothukudi District.

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4.The District Educational Officer, Thoothukudi, Thoothukudi District.

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5.The Correspondent, Tucker Higher Secondary School, Pannaivilai, Thoothukudi District. ... Respondents

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W.P.(MD)No.713 of 2022

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Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned staff fixation issued by the third respondent herein vide proceedings in Moo.Mu.No.6105/Aa3/2019 dated 15.11.2019 insofar as rendering one post of Lab Assistant as surplus and the consequential impugned proceedings issued by the fourth respondent herein vide Na.Ka.No. 3251/Aa1/2021 dated 15.11.2021, Quash the same and further direct the third respondent herein to approve forthwith the appointment of petitioner as Lab Assistant in the fifth respondent school from 10.06.2021 onwards with salary and other attendant benefits.

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For Petitioner : Mr.A.Ajith Geethan

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For Respondents : Mr.N.Satheeskumar Additional Government Pleader

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ORDER

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The earlier order dated 08.02.2023 stands recalled.

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Heard the learned counsel on either side.

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The post of Lab Assistant in Tucker Higher Secondary School,

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Pannaivilai, Thoothukudi District became vacant on 18.09.2019 following the retirement of the incumbent. The petitioner was appointed in the said vacancy on 10.06.2021. The petitioner’s appointment was however not approved by the

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Department. Challenging the same, the present writ petition came to be filed.

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The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to set aside the impugned order and grant relief as prayed for.

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The respondents have filed a detailed counter affidavit and the learned Additional Government Pleader took me through its contents. The contention of the learned Additional Government Pleader is that on account of the application of G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 the post of Lab Assistant has lapsed following the retirement of the incumbent. He relied on Clause 9 of G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018. He also would point out that the School in question comes under CSI Corporate Management. It has to be seen if the other Institutions run by the Corporate Management are having surplus Lab Assistants and if so, they will have to be redeployed to fill up the resulting vacancy in Tucker Higher Secondary School. Citing these two reasons, he called upon this Court to sustain the impugned order and dismiss the writ petition.

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I carefully considered the rival contentions and went through the materials on record.

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The impugned order passed by the competent authority proceeds on

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the footing that the post in question has been render surplus. I therefore will have to test the validity of the order only on the strength of the said ground. Clause (iii) of Paragraph No.3 G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 reads as follows:

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“3 (iii) Ma;tf cjtpahsh; gzpaplj;ij bghWj;jtiu 1991-92 Mk; fy;tpahz ; L Jtq;Fk; nghJ ve;bje;j cjtpbgWk; gs;spfspy; Ma;tf cjtpahsh; gzpaplq;fs; mDkjpf;fg;gl;Ls;snjh me;j gzpaplq;fs; kl;Lnk bjhlh;e;J mDkjpf;fg;gl ntz;Lk;. g[jpjhf gzpaplq;fs; vJt[k; mDkjpf;fg;glkhl;lhJ.”

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The learned counsel appearing for the petitioner relies on the aforesaid Clause. Per contra the learned Additional Government Pleader relies on Clause 9 which reads as follows:

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“3(ix) nkw;fhZk; ml;ltizapy; Fwpg;gplg;glhj gzpaplq;fspy; jw;nghJ gzpahsh; epakdk; bra;ag;gl;L gzpg[hpe;J te;jhy; mg;gzpahsh;fs; gzp Xa;t[, gjtp cah;t[ kw;Wk; ,wg;g[ nghd;w fhuzq;fshy; epue;jpukhff; fhyp Vw ; gLk;nghJ mg;gzpaplq;fs; jhdhfnt fhyhtjpahfptpLk;. mg;gzpaplq;fis epakdk; khWjy; kw;Wk; gjtp cah;t[ K:yk; epug;gf;TlhJ.”

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The validity of the aforesaid Government Order had been upheld by

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me vide order dated 07.02.2023 in W.P(MD)No.13428 of 2020 (A.Amutha

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Selvi Vs The State of Tamil Nadu & Others) . The scheme of the said Government Order had been considered by a learned Judge of this Court vide order dated 24.02.2022 in W.P(MD)No.4783 of 2018 (I.Joselin Vs The State of Tamil Nadu & Others) . Paragraph Nos.18 & 19 of the said order read as follows:

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“18. Then G.O. Ms. No. 238 School Education (Pa. Ka. 6 (1)) Department dated 13.11.2018 has issued, wherein the staff fixation of nonteaching staff is fixed as under:

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Categories of		Stude	nts Strength
Non-Teaching Staff
	Until 250	From 251	More than	Remarks
		to 1000	1001
Junior	Nil	1	2	Maximum 2
Assistant or
Assistant or
Record Clerk
Office	1		2	Maximum 2
Assistant
Watchman	1			Maximum 1

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•

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The salient features of the G.O. 238 are that,

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Whatever be the nomenclature, the G.O. considers the Junior

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Assistant or Assistant or Record Clerk posts as one post.

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The G.O. also states that if the above stated posts is already

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sanctioned to the school prior to 1991-1992, then alone the school is eligible to the said post.

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The Lab Assistant post if sanctioned prior to 1991-1992 then the

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school is eligible and not otherwise.

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The student strength ought to be calculated from the class and

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sections which was granted grant-in-aid prior to 1991-1992.

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If there is surplus then the concerned authority shall deploy the

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said surplus post to the needy school within the Revenue District and submit the surplus list to the Director to be deployed to other Districts.

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If any post is surplus without person then the post shall be

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surrendered to the Director’s Common Pool.

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The Chief Educational Officer ought to ascertain that there is no

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surplus before granting any permission / approval to fill the post.

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• The posts not stated in the tabulation shall be filled up through outsourcing as stated in the G.O. Ms. No. 77 School Education (Pa.Ka.1) Department dated 13.04.2015, G.O. Ms. No. 166 Municipal Administration and Water Supply Department dated 23.11.2016 and G.O. Ms. No. 79 Rural Development and Panchayat Raj Department dated 14.07.2017.

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If any person is working in any post, other than the posts stated in

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the above tabulation, the post would lapse on the person

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retirement or otherwise. The school shall not appoint or transfer or promote in the said lapsed post.

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If the posts stated in the above tabulation fell vacant, then the said

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post ought to be filled up with the surplus staff alone.

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19.The comprehensive reading of all these above said Government Orders are that

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The school is not eligible to fill the post of Waterman, Gardener

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cum Sweeper and Gardener at all as per G.O. 583 from 1966 onwards.

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The school is eligible to appoint the Lab Assistant if the post is

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sanctioned post prior to the academic year 1991-1992

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The posts other than the posts of Junior Assistant or Assistant or

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Record Clerk, Office Assistant and Watchman would lapse, if the incumbent retires or otherwise. Then the school is not eligible to fill the lapsed post at all.

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The posts of Junior Assistant or Assistant or Record Clerk, Office

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Assistant and Watchman shall be granted as per the student strength stated in the said G.O. 238 and the maximum limit as stated in the said G.O. 238

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Any appointments prior to G.O. Ms. No. 64 shall be approved as

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per the said G.O. 64, but the surplus staff ought to be deployed to the needy place within the Revenue District and then the surplus staff shall be submitted to Director for further deployment to other Districts.

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The G.O. 64 was issued on 03.04.2018 and the G.O. 238 was

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issued on 13.11.2018 and in between the said G.O. Any

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appointments are made, the same shall be approved. But the approval shall not be granted for the posts of Waterman, Gardener cum Sweeper and Gardener since the said posts was not granted even in G.O. 583 from 1966 onwards.

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Except the posts of Junior Assistant or Assistant or Record Clerk,

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Office Assistant and Watchman, all other posts shall be filled up through out-sourcing and there is not grant-inaid for the said posts”

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The question that arises for consideration is whether the post of Lab Assistant should be treated to have lapsed following the retirement of the incumbent. That would be the position if Clause 3(ix) of the Government Order is literally applied. It is true that the said Clause reads that the posts of Junior Assistant or Assistant or Record Clerk or Office Assistant or Watchman would lapse if the incumbent retires or otherwise and that the School is not eligible to fill the lapsed post at all. But then Clause 3(iii) would be rendered otiose. I therefore hold that Clause 3(ix) of the Government Order will not include the post of Lab Assistant. In fact, I had taken such a view vide order dated 20.10.2022 in W.P(MD)No.10481 of 2021 (The Secretary Vs The State of Tamil nadu & Others) . G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 states that as far as the post of Lab Assistant is

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concerned those posts will be allowed to be continued if they had been sanctioned at the commencement of the academic year 1991-92 and fresh posts

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will not be permitted. If the post of Lab Assistant is to lapse following the retirement of the incumbent, then obviously there is no need for Clause 3(iii). These two Clauses will have to be reconciled. The result of such reconciliation leads me to conclude that Clause 3(ix) does not envisage within its scope the post of Lab Assistant. The impugned order proceeds only on the footing that the post has become surplus. In as much as G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 does not come in the way of approval of the petitioner’s appointment, the order impugned in this writ petition is set aside. The respondents 1 to 4 are directed to release the salary grant to the petitioner from the date of her appointment. This exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.

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