State Of Tamil Nadu & Ors vs Amala Annai Higher Sec.School

State of Tamil Nadu & Ors. ...Appellants

Versus

Amala Annai Higher Secondary School ...Respondent

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. The State of Tamil Nadu and its functionaries have

preferred this appeal by special leave against the judgment

dated March 18, 2008 passed by the Division Bench of Madras

High Court whereby it dismissed writ appeal preferred by the

appellants and affirmed the order dated December 4, 2006 of

the Single Judge directing the 1st appellant herein to sanction

one post of Junior Assistant to the Respondent No. 1 from June

1, 1994.

3. Amala Annai Higher Secondary School (hereinafter

referred to as, `AAHS School') was originally a middle school.

AAHS School was upgraded as high school from academic

year 1988-89 w.e.f. June 13, 1988. All the posts of the middle

school were absorbed in the high school. At the time of

upgradation of the school from middle school to high school,

the strength of students was less than 300. One Ms. Rosary

was appointed by the management as a Junior Assistant on the

very same day the school was upgraded from middle school to

high school without getting approval from the Competent

Authority. The management of the school then made a request

to the Competent Authority for sanction of one post of Junior

Assistant which was not acceded to. The said request was

renewed from 1991-1992 onwards but without any favourable

response from the appellants. The management then made a

representation to the state government on January 20, 1997.

While the said representation was under consideration before

the state government, the management of the school filed a writ

petition (W.P.No.4536/1997) before the High Court of

Judicature at Madras. That writ petition was disposed of by the

2 Single Judge on October 15, 1997 directing the present

appellants to consider the representation dated January 20,

1997 and pass final order on the same after hearing the

management of the school.

4. In terms of the order dated October 15, 1997, the

state government considered the representation made by the

school and rejected the same vide communication dated July 3,

1998 indicating therein that, as per the norms issued in

G.O.Ms. No. 340/Education dated April 1, 1992, the strength of

school during 1990-91 was below 300 and, therefore, there is

no compulsion under the said G.O.M. to give non-teaching staff

as and when school raises the strength.

5. The aforesaid communication dated July 3, 1998

was not challenged by the school, although further

representations were made. After about seven years, the

management of the school filed another writ petition before the

High Court of Judicature at Madras, Madurai Bench, Madurai,

praying for a direction to the government of Tamil Nadu to

sanction one post of Junior Assistant to the school from the

3 academic year 1991-92 and approve the appointment of the

incumbent who was appointed to that post and confer all

consequential benefits.

6. The state government and its functionaries stoutly

opposed the writ petition and, inter alia, set up the defence that

at the relevant time, the strength of school was below 300 and,

therefore, the school was not entitled to any post of Junior

Assistant.

7. The learned Single Judge, after hearing the parties by his

order dated December 4, 2006, disposed of the writ petition

with the following direction :

"Taking note of the said fact which is undisputed, the 1st respondent is directed to sanction one post of Junior Assistant to the petitioner school in terms of G.O.Ms. No. 245 Education Department dated 21.02.1970 from 01.06.1994. Necessary orders shall be passed by the 1st respondent taking note of the recommendation made by the 4th respondent dated 12.10.1994 and also in terms of G.O.Ms. No. 245 dated 21.02.1970 within a period of eight weeks from the date of receipt of a copy of this order on sanction given to the appointment of the said Rosary as Junior Assistant shall be approved."

8. An intra court appeal was preferred by the present

appellants before the Division Bench. However, as noticed

4 above, the Division Bench by its order dated December 18,

2008 dismissed the appeal and maintained the order of the

Single Judge.

9. We heard Mr. E. Padmanabhan, learned Senior

Counsel for the appellants and Mr. C. Selvaraju, learned Senior

Counsel for the school and considered the relevant provisions

of Tamil Nadu Minority Schools (Recognition and Pay of Grant)

Rules, 1977 (hereinafter referred to as `Rules, 1977') and

various G.O.Ms., particularly, G.O. (4D) No. 4, dated November

23, 1991; G.O.Ms. No. 340, dated April 1, 1992 and G.O.Ms.

No. 50, dated January 20, 1995.

10. In our view, the judgment of the Division Bench

affirming the order of the Single Judge cannot be sustained for

more than one reason. In the first place, the management of

the school had already filed writ petition in 1997 praying therein

that the state government and its functionaries be directed to

consider their representation dated January 20, 1997 for the

grant of one post of Junior Assistant and in furtherance thereto,

5 the state government, after hearing the school, rejected the

representation on July 3, 1998 indicating the following reasons :

"At the time of sanction of posts G.O. Ms. No. 50 Education dated 20-1-95 as per the norms issued in G.O.Ms. No. 340 Education Dated 1-4-92 the strength of your school during 1990-91 was below 300. The orders in G.O.Ms. No. 340 are clear. It says that there is no compulsion to give non- teaching staff as and when the school increases the strength. Therefore your request for sanction of one post of Junior Assistant is not feasible of compliance."

The management of the school did not challenge the

aforesaid decision of the state government and, therefore, it

was not open to the school to file another writ petition for the

same relief, i.e., for direction to the state government to

sanction one post of Junior Assistant to the school from the

academic year 1991-92. The controversy stood concluded in

the earlier round of litigation and the decision of the state

government dated July 3, 1998 having not been challenged, the

second writ petition could not have been entertained by the

High Court. Merely because, few subsequent representations

were made by the management to the state government

reiterating the request for sanction of post of Junior Assistant,

no new cause of action for filing second writ petition can be said

to have arisen. In the facts and circumstances of the case,

6 second writ petition by the management of the school for the

same relief is nothing but an abuse of the process of the court.

11. Secondly, insofar as G.O.Ms. No. 340, dated April

1, 1992 is concerned, it is not attracted at all. G.O.Ms. No. 340

dated April 1, 1992, issued by the Education Department

mentions, "Accordingly, the following staffing pattern, was

recommended by the Committee for deciding the eligibility for

post for the schools in question (opened in 1987-88 and earlier)

-." Thus, G.O.Ms. No. 340 dated April 1, 1992 containing

norms for sanction of posts is applicable for the high schools

opened in 1987-88 and earlier. In the present case, the school

was upgraded to high school in 1988-89.

12. Thirdly, the Division Bench as well as the Single

Judge overlooked and ignored sub-Rule (2) of Rule 6 of the

Rules, 1977 which reads : "Payment of monthly staff grant shall

be made only in respect of qualified and admissible teachers

actually employed in minority schools whose appointments

have been approved by the concerned authorities according to

the number of posts sanctioned to the institutions concerned."

7 Admittedly, in the present case, the management of the school

appointed Ms. Rosary as Junior Assistant to a non-sanctioned

post. The explanation of the management that she was

appointed in anticipation of orders from the Competent

Authority hardly merits acceptance.

13. Fourthly, as per the norms issued in relevant

G.O.Ms., the strength of the school during 1990-91 ought to be

300 and above while the students' strength of the school during

1990-91 was only 281. As a matter of fact, it is not even the

case of the management that during 1990-91, the student

strength was 300 or more. The student strength during 1993-

94 and subsequent years has no relevance. It is here that

High Court fell into a grave error because what was important

under the relevant G.O.Ms. was that student strength must

have been 300 or more during the years 1988-89, 1989-90 and

1990-91.

14. Fifthly, the reliance placed by the High Court on

G.O.Ms. 245/Education, dated February 21, 1970 is misplaced

inasmuch as the said G.O. applied to clerks who were already

8 employed in and around the year 1964 and has no application

to a junior assistant appointed to a non-sanctioned post in

1988-89.

15. Last but not the least, the High Court erred in

directing the present Appellant No. 1 to sanction one post of

Junior Assistant to the Respondent No. 1 - AAHS School from

June 1, 1994 overlooking and ignoring that creation and

sanction of posts is the prerogative of the executive and the

courts cannot arrogate to themselves a purely executive power.

16. The appeal must, accordingly, succeed and is

allowed with no order as to costs.

........................J (Tarun Chatterjee)

........................J (R. M. Lodha) New Delhi August 28, 2009

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