This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for records relating to the first respondent's order made in Mu.Mu.No.25884/T3(T9)/2004 dated 9.6.2004, and 2nd respondent's order made in O.Mu.No.826/03/A3 dated 6.7.2004 as communicated by the third respondent in order dated 16.7.2004, to quash the same and consequently direct the respondents 1 and 2 to approve the appointment of the petitioner as Craft Instructor (Wood Work) and to extend all benefits both service and monetary from the date of his initial appointment.
2. Consequent to the retirement of Thiru A.N.Jayaraman, Craft Instructor (Wood Work) there arose a vacancy in the third respondent school in the year 1998. The Secretary and Correspondent of the third respondent school sent a request to the Chief Educational Officer seeking permission to fill up the vacancy by direct recruitment and such permission was granted by Chief Educational Officer, Thiruvaroor by proceedings Na.Ka.No.1182/A5/97 dated 7.12.2001. Based on the permission granted by the Chief Educational Officer, the petitioner G.Sivagnanam, was appointed directly as Craft Instructor (Wood Work) by order dated 20.1.2003 in the third respondent school. There is some delay after the permission was granted. The District Educational Officer, the second respondent, addressed a letter dated 15.8.2003 to the Joint Director of Secondary Education, the first respondent, seeking clarification with regard to the approval of the petitioner's appointment. The first respondent Joint Director of Secondary Education by proceedings dated 9.6.2004 in Mu.Mu.No.25884/D3/T9/2004 by referring G.O.Ms.No.39 School Education(D1) Department dated 21.3.2003 refused to grant approval to the petitioner's appointment. Such refusal was communicated to the Secretary of the third respondent school by the second respondent District Educational Officer. Consequently, the petitioner was informed by the Secretary of the third respondent school that approval for the appointment of the petitioner has been rejected by the first respondent. Hence, the present writ petition.
3. Learned counsel for the writ petitioner brought to the attention of the court the G.O.Ms.No.39 School Education (D1) Department dated 21.3.2003 and in particular pointed out paragraphs 3 and 4 which would clarify the erroneous stand taken by the government. Paragraphs 3 and 4 reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED The G.O.Ms.No.39 itself contemplates filling up of vacant post as on 11.7.2002 in several posts which includes Craft Instructor (Wood Work). According to the learned counsel for the petitioner, in the present case, the vacancy to the post of Craft Instructor (Wood Work) arose in June 1998. The approval was granted on 7.12.2001 and the appointment was made on 20.1.2003. In terms of the G.O.Ms.No.39 dated 21.3.2003 which has been referred to by the first respondent, there is no impediment in appointing a Craft Instructor (Wood Work) to a vacant post as on 11.7.2002. Further, paragraph 6 of the G.O.Ms.No.39 reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED This para of the G.O.Ms.No.39 recognises appointment as on 11.7.2002 and ratifies the transfer effected after such appointment. In the present case, the vacancy arose in the year 1998. The G.O.Ms.No.39 was issued on 21.3.2003. In the impugned proceedings, the first respondent has erroneously stated that permission has been granted under G.O.Ms.No.39 dated 21.3.2003 to fill up the post of tailoring and music teacher on and from 12.7.2002. This is contained in paragraph 2 of the G.O.Ms.No.39, which reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED When paragraph 4 of the G.O.Ms.No.39 specifically grants permission for appointment in a vacancy of specified post that exists as on 11.7.2002, which includes the post of Craft Instructor (Wood Work), the question of rejecting the petitioner's claim referring the paragraph 2 of the G.O. is totally misconceived. It relates to different post.
4. A counter-affidavit has been filed by the second respondent. Learned Government Advocate appearing for the respondents 1 and 2 referred to paragraph 8 of the counter-affidavit and stated that though permission was granted in the year 2001, the appointment has been made after lapse of two years from the date of permission. Therefore, the rejection of approval is correct. It was further stated that on a reading of G.O.Ms.No.39 dated 21.3.2003, the impugned order is justified.
5. I am unable to accept the plea of the learned Government Advocate appearing for the respondents 1 and 2. In view of the paragraph 4 of the G.O.Ms.No.39, which clearly provides for filling up of vacancy as on 11.7.2002, particularly, to the post of Craft Instructor (Wood Work). The question of rejection of approval based on paragraph 2 of the G.O.Ms.No.39 is totally misconceived and incorrect as it relates to tailoring and music. The fact is that the vacancy in this case arose in the year 1998. The vacant post upto 11.7.2002 can be filled up cannot be disputed by the respondents. If that be so, in terms of paragraph 4 of the G.O.Ms.No.39, the petitioner is entitled to get the approval. The petitioner is no way concerned with paragraph 2 of the G.O.Ms.No.39. The ban and the relaxation granted in para 2 will not be applicable to the facts of the petitioner's case.
6. As stated earlier, in the counter-affidavit, it is stated that there is a delay in appointment and therefore, the approval was rightly rejected. That is not a ground stated in the impugned proceedings.
7. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit vide Mohinder Singh Gill and another v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
8. Paragraph 4 of G.O.Ms.No.39 clearly provides approval for appointment in respect of vacancy to specified post as on 11.7.2002, therefore, the rejection of approval is totally without any merits and is contrary to the Government Order.
9. In the result, the impugned proceeds are set aside. The Writ Petition is allowed as prayed for. No costs. As requested by the learned counsel for the petitioner, the respondents are directed to comply with the order within two months from the date of receipt of a copy of this order.
ts To
1.The Joint Director of Secondary Education, College Road, Chennai-600 006.
2.The District Educational Officer, Thiruvarur District at Thiruvarur