Ponmalar Vs The Secretary to the Government

PRAYER: Writ Appeal filed under Clause XV of Letters of Patent Appeal, against the order dated 02.09.2021 made in W.P.No.10129 of 2021 passed by this Court.

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For Appellant : Mr.S.Suresh Kumar For R1 to R4, : Mr.J.Ashok, 6 and 7 Additional Government Pleader For R5 : Mr.H.Arumugam

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JUDGMENT

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DR.G.JAYACHANDRAN, J.

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AND

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R.POORNIMA , J.

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The appellant herein, on the strength of the appointment order issued by the Management on 01.07.2019, was posting as Tamil Pandit in the time scale of pay of Rs.36,400/-(36,400 – 115700) Level 16, Cell.1., had approached this Court in

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the year 2021 seeking Mandamus to direct the third and fourth respondents to approve the appointment as a Teacher in the minority educational institution.

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2.The contention of the State is that her appointment was not intimated by the Management seeking approval. Further, the post is not a sanctioned post to get grant from the State. The Management has also stated that for exigency purpose, she was appointed, but no proposal to approve her appointment was sent by the Management, since the post was not a sanctioned post. At the time of appointment, vide order dated 16.06.2021, there was an order of interim injunction for a period of four weeks as the writ petitioner has made out a prima facie case. Further, when the matter was taken up for final hearing, on considering the submission made by the counsels, this Court found that the writ petitioner appointed as BT Assistant Tamil Pandit on 01.07.2019, but the time scale was not considered for a sanctioned post and also the institution was suffering redeploying the surplus teacher in the respondent School. In such circumstances, since there is no material to show the proposal for approval pending with the Government, the Court has passed the following Order:

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“6.In view of the above submissions, this Court passes the following orders:

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(i)It is open to the petitioner to make a representation to the

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Educational Authority within a period of one week from the date of receipt of a copy of this order.

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(ii)If any representation is made by the petitioner as stated above and any proposal dated 08.07.2019 is pending, the Educational Authority shall consider the same and pass appropriate orders after providing due opportunity to the School Management, within a period of eight weeks from the date of receipt of a copy of this order.

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(iii)If no such proposal is pending, the Educational Authority shall communicate the same to the parties concerned forthwith.

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(iv)Till final decision is taken in this matter by the Educational Authority as stated above, status quo as on date shall be maintained by both the parties.

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(v)No costs. Consequently, connected miscellaneous petition is closed.”

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3.The said order is challenged by the writ petitioner in the writ appeal on

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the ground that the proposal to approve her appointment already pending with the Department dated 08.07.2019 and the same has not been considered and disposed of. Status quo orderd by the learned Single Judge not been complied with by the newly elected administrative body by not producing the documents which will disclose that the writ petitioner been taking class, since her appointment also been deputed for election duty. The Department cannot keep the proposal pending send

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by the erstwhile Management nor the new Management continue the factum of forwarding the request for approval sent by the erstwhile management.

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4.On considering the contentions raised by the learned counsel for the appellant and the submissions made by the learend Government Advocate and the learned counsel appearing for the Management, this Court finds that the factum whether the appointment of the appellnat was as against the sanctioned post or not, is not clear. In this case, the Management says it is not a sanctioned post. The learned counsel appearing for the appellant would submit that the erstwhile Management has not done anything to show request made for approval. The request and reminders had emanated only from the employee but not from the Management that too after filing of the writ petition and after the interim order. If there is no sanctioned post in the fifth respondent Management, there is no question of approving her appointment by the Educational Department. It is an issue between the writ petitioner employee and the Management run by the minority institution. The role of the State will come into picture only if there is a grant to the said post or the appointment if any was in accordance with law.

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5.The Writ of this nature, without material to show that the petitioner was appointed in a sanctioned post but contrarily, there was a move by the Page 5 of 7

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Government to deploy the surplus staff in the fifth respondent School, exercise of writ jurisdiction is not permissible. The learned single Judge order therefore uphold. Accordingly, the Writ Appeal stands dismissed. However, the dismissal of the writ appeal will not stand in the way of the Management to consider the retention of the petitioner in service under the Self-finance scheme, if available or consider in future for appointment in sanctioned post. No costs. Consequently, connected miscellaneous petitions are closed.

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[G.J., J.] & [R.P., J.] 10.03.2025

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NCC : Yes / No Index : Yes / No Ns

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DR.G.JAYACHANDRAN, J.