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2019 DIGILAW 330 (MAD)

State of Tamil Nadu v. Y. Thangababy

2019-01-31

S.MANIKUMAR, SUBRAMONIUM PRASAD

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JUDGMENT : Subramonium Prasad, J. 1. State of Tamil Nadu, has filed the instant writ appeal, challenging the order, dated 5/2/2018, passed in W.P. No. 4714 of 2010. 2. First respondent/writ petitioner, qualified in needle work, dress making and embroidery, during 1987 and obtained TTC in sewing, in 1989. She registered her craft qualification with the District Employment Office. A post of Full time sewing teacher fell vacant in the second respondent School due to the retirement of one Mrs. Julient Dharmakkami. The first respondent was appointed, as Sewing teacher, on 11/8/2008 in her vacancy and placed under probation for two years. 3. Proposals were sent by the Management of the School, for approving the appointment of the first respondent, but the same was returned, on 13/3/2009, by the DEEO, stating that the School was having a students' strength less than 150 and therefore, appointment of the first respondent cannot be approved, as per the dictum of the Hon'ble Full Bench of this Hon'ble Court. 4. Contending that the first respondent had been appointed against a sanctioned post and that reduction in the students' strength, cannot be a ground to reject the approval, first respondent filed W.P. No. 4714 of 2010, to direct the appellants herein, to consider the claim of the first respondent, for approval of her appointment, as Sewing Teacher, in the second respondent School and to extend all service benefits from the date of her appointment. 5. Government, filed a counter, contending that as per G.O. Ms. No. 132, School Education Department, dated 27/4/1998, minimum requirement of students for a craft teacher is 250, and therefore the post can only be filled up when the School is having atleast 250 students. Appointment of the first respondent cannot be approved and the total number of students in the School opting for the course are only 160. 6. Learned single Judge, allowed the writ petition, by relying on judgment dated 22.01.2004, passed by this Court in WA. No. 1263 of 2001, wherein, this Court held that a subsequent reduction in the number of students is no ground to refuse appointment against a sanctioned post. 7. The Government have challenged the above said judgment, on the ground that the judgment of the learned single Judge goes contrary to G.O. Ms. No. 132, School Education, dated 27/4/1998. G.O. Ms. No. 1263 of 2001, wherein, this Court held that a subsequent reduction in the number of students is no ground to refuse appointment against a sanctioned post. 7. The Government have challenged the above said judgment, on the ground that the judgment of the learned single Judge goes contrary to G.O. Ms. No. 132, School Education, dated 27/4/1998. G.O. Ms. No. 132, dated 27/4/1998, which fixes the minimum number of female students, reads as under:- School Education (M1) Department G.O.Ms. No. 132 : 27/4/1998 ORDER During the inspection of ZEB AG that was conducted on 16/12/1992 excluding the post of Drawing and Physical training teachers, it is decided that post of Handwork teacher post (1) Agriculture (2) Carpentry (3), weaving, music and tailoring teacher posts will not be filled up in the forth coming days. Further, the Accountant General in his Audit report, had mentioned that in the absence of infrastructure equipments to the special teachers in teaching in this situation instead of technical education service, they are forced to do clerical service and in the Higher Secondary School as vocational education is been teached, the necessity to fill up these posts, was said to be scrutinised, in the absence of recommendation of high level committee constituted to inspect the proportion of the teacher and students, the Government has stayed the appointment of special teachers such as to the post of Music and Tailoring teacher. These posted have not been filled from the year 1992 onwards. 2. Craft work, weaving, music and other special teacher posts (excluding physical training) several sections have insisted to fill up such posts, as the craft work is very essential to the students, the stay in filling up these posts was vacated, to fill up the vacant sanctioned post by the Government, during the academic year 1997-98, the Director of School Education had requested to issue order in this aspect. 3. The proposal of the Director of School Education was carefully considered by the Government and stay in the appointment of special teachers (Tailoring and Music) is vacated. The two kinds of special teachers such as Music Teacher/Tailoring teacher, the vacancies of 68 music teachers and 100 tailoring teacher posts, is permitted to be filled during the academic year 1998 - 99. The two kinds of special teachers such as Music Teacher/Tailoring teacher, the vacancies of 68 music teachers and 100 tailoring teacher posts, is permitted to be filled during the academic year 1998 - 99. The Government grants permission to fill up this posts in the schools having 250 and more number female students to fill up (168) posts. This permission is not applicable to the other Handwork teacher post. 4. This order is issued with the consent of the Finance Department under U.O.-M. No. 26533/Educational/98-1, dated 20/4/1998." 8. Short issue involved in this case is that if the students strength reduces, after the post is approved, then such posts be filled up, if a vacancy arises or not. This issue is no longer res integra. This Court, in W.A. No. 1263 of 2001, by judgment dated 22/1/2004, observed as under:- "4. Fixation of teachers strength is governed by G.O. Ms. No. 525, School Education (D1) Department dated 29/12/1997. As per the said Government Order, a School is entitled to one teacher for the average attendance of 40 students taken in the month of August of the academic year. As we already pointed out, there is no dispute that the appellant - School was sanctioned six posts of Secondary Grade Teachers for the academic year 1999 - 2000 which was fixed on the basis of the average attendance of students taken in the month of August, 1999. It is also not in dispute that a teacher by name C. Vasanthal was appointed within the sanctioned strength of six Secondary Grade Teachers. Proposals were also sent on 28/12/1999. In the circumstances, we cannot find fault with the appellant School in appointing C. Vasanthal as Secondary Grade Teacher, as admittedly the appellant had the sanctioned teachers strength on the date of appointment. The approval, which was sought, is rejected solely on the ground of subsequent development viz., the fixation of the teachers strength for subsequent academic years 2000 - 2001 and 2001 - 2002 on the basis of average attendance of students taken during August 2000 and August 2001. The fall or reduction in the students strength for the subsequent year/years cannot be ground to deny the right of the appellant to appoint a teacher as against the sanctioned strength for the previous years. The fall or reduction in the students strength for the subsequent year/years cannot be ground to deny the right of the appellant to appoint a teacher as against the sanctioned strength for the previous years. What has been done in this case, by the impugned order, is exactly the reliance placed on the subsequent re-fixation of the sanctioned strength of teachers for the academic year 2000 - 2001 which, in our considered view, is impermissible in law. When the Government, being the finding authority, is entitled to consider the average attendance of students before sanctioning the teachers, equally the management is also entitled to appoint the teachers as against the sanctioned strength based on the average attendance of students taken during August, 1999. Though it is the case of the respondent that the appellant had boosted the attendance of the students, the same is sought to be supported only on the basis of the inspection carried on 6/1/2000 and 3/4/2000 and on the basis of the attendance of the students on those days and not with reference to the average attendance of August, 1999. 5. In that view of the matter, we find it every merit in the grievance of the appellant School for approval of the appointment of C. Vasanthal as Secondary Grade Teacher for the academic year 1999 - 2000. In that view, we do not find any justification to hold that the subsequent development or re-fixation of sanctioned strength could be a ground for denying the right of the appellant to appoint the teacher as against the sanctioned strength for the previous academic years. Accordingly, we set aside the order of the learned single Judge and direct the respondent to accord approval for the appointment of C. Vasahthal made on 20/2/1999 and prosed on 28/12/1999. We make it clear that this approval will enure the benefit to the said teacher only for the academic year 1999 - 2000. In view of the subsequent development, the said teacher shall be considered as surplus and is entitled to be dealt with in accordance with the Government orders in vogue." 9. This Court, by judgment, dated 1/2/2011, in W.A. No. 703 of 2009, (The District Elementary Educational Officer, Tirunelveli and another v. J. Banu and another), held as under:- "6. In view of the subsequent development, the said teacher shall be considered as surplus and is entitled to be dealt with in accordance with the Government orders in vogue." 9. This Court, by judgment, dated 1/2/2011, in W.A. No. 703 of 2009, (The District Elementary Educational Officer, Tirunelveli and another v. J. Banu and another), held as under:- "6. The learned counsel appearing for the first respondent submitted that one of the Special Teacher post of Vocational Instructor in Tailoring became vacant and in the said vacancy, the first respondent was appointed with effect from 30/4/2008 and she is serving in the second respondent school all these years. The learned counsel also submitted that the said sanctioned post is in existence and the appellants neither declared the said post as surplus nor resume the post till date from the second respondent school. To prove the availability of the post, staff fixation order of the school is filed. The reason stated by the District Elementary Educational Officer for rejecting the request for approval was that there is reduction of student strength. The very same issue was considered by a Division Bench of this Court in W.A. No. 1263 of 2001 and by judgment dated 22/1/2004, the Division Bench held that if a person is appointed in a sanctioned post, the approval of appointment cannot be rejected and if there is fall in strength and the post become surplus. after granting approval of the post, the said teacher along with post could be transferred/deployed to a needy school. The same is the view taken by the learned single Judge in this case. 9. In the light of the Division Bench decision cited supra, as well as the availability of post, where the first respondent is appointed in the second respondent school, there can be no impediment for the appellants to approve the appointment of the first respondent with effect from 30/4/2008 and disburse her salary and other benefits, if she is found qualified. No ground is made out to interfere with the order passed by the learned single Judge." (emphasis supplied) The Constant view therefore is that reduction in students cannot be a reason to request approval of the appointment of a teacher against a sanctioned post. 10. In view of the above mentioned judgment, there is no merit in the writ appeal and the same is dismissed. 10. In view of the above mentioned judgment, there is no merit in the writ appeal and the same is dismissed. Appellants are directed to approve the appointment of the first respondent, with effect from 11/8/2008, within a period of three weeks, from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.