The Secretary To Government And Others vs J Charles Premkumar And Others

THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.A.No.1589 of 2017 and CMP Nos.20843 & 20844 of 2017

1. The Secretary to Government, Education Department, State of Tamil Nadu, Secretariat, St. Fort George, Chennai - 9.

2. The Director of School Education, College Road, Chennai - 6.

3. The District Educational Officer, Erode ... Appellants versus

1. J.Charles Premkumar.

2. The Correspondent, CSI Boys Hr.Sec. School, Erode - 1 ... Respondents 2014.

http://www.judis.nic.in Writ Appeal filed against the order dated 09.09.2014 in W.P.No.24392 of For Appellants : Mr.P.S.Siva Shanmugha Sundaram Special Government Pleader

JUDGMENT

(Judgment of the Court was delivered by S.MANIKUMAR, J.) Material on record discloses that post of Laboratory Assistant has been sanctioned to CSI Boys Higher Secondary School, Erode, the 2nd respondent. Consequent to the promotion of the incumbent, in the post of Laboratory Assistant as Junior Assistant, a vacancy has arisen in CSI Boys Higher Secondary School, Erode. In the resultant vacancy, 1st respondent has been appointed as Laboratory Assistant on 30.11.2011 and that proposals have been sent to the District Educational Officer, Erode, the 3rd appellant.

2. District Educational Officer, Erode, 3rd appellant has returned the proposal vide proceedings in A.Thi.Mu.No.8519/A3/2011 dated 07.12.2011. As CSI Boys Higher Secondary School, Erode, 2nd respondent had not taken legal steps, the Laboratory Assistant/1st respondent has filed W.P.No.24392 of 2014 for a writ of certiorarified mandamus to quash the proceedings in A.Thi.Mu.No.8519/A3/2011 dated 07.12.2011 and consequently, prayed for a direction to the appellants herein, to approve his appointment as Laboratory Assistant in CSI Boys Higher Secondary School, Erode, 2nd respondent, herein from the date of his appointment and to pay all service and monetary benefits within a time.

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3. Before the writ Court, the 1st respondent has submitted that CSI Boys Higher Secondary School, Erode, is a minority school, and no prior permission from the Directorate or District Educational Officer, Erode is required to fill up a sanctioned post. First respondent has also contended that there is no restriction in GO Ms.No.115, School Education (D2) Department dated 30.05.2007 for filling up the post of Laboratory Assistant, much less in minority aided Schools.

4. Before the writ Court, appellants have not filed any counter affidavit.

5. First Respondent has relied on orders of this Court dated 30.10.2007 in W.P.(MD) No.484 of 2007, in the matter of (S.D.Rajkumar Vs. State of Tamil Nadu rep. by its Secretary to Government, School Education Department, Chennai and others), order dated 28.04.2014, rendered in W.P.(MD) Nos.6542 to 6544 and 6546 of 2014 in the case of (A.Maria Selvam and others Vs. The Secretary to Government, Education Department, STate of T.N. Chennai and others) and the order dated 18.07.2014, made in W.P.(MD) No.12049 of 2012, in the matter of (T.Jones Vs. The Secretary, Department of School Education, State of T.N.Secretariat, Chennai and others).

6. From the order impugned before us, it could be deduced that before the writ court, the learned Additional Government Pleader for appellants 1 to http://www.judis.nic.in 3 had submitted that CSI Boys Higher Secondary School, Erode, 2nd respondent be directed to re-submit the proposal seeking approval of appointment of the 1st respondent and that the Education Department, appellants 1 to 3, be directed to pass appropriate orders regarding the approval of appointment of 1st respondent, as per the order passed in W.P.(MD) No.12049 of 2012.

7. Upon perusal of the order made in W.P.(MD) No.484 of 2017 dated 30.10.2017 and W.P.(MD) Nos.6542 to 6544 and 6546 of 2014 dated 28.04.2014, writ Court found that when a post is sanctioned and a person has been appointed to that sanctioned post, consequent to the retirement of a person holding that post, then the authorities are bound to approve the same.

8. On the facts and circumstances of the present case, writ Court found that Laboratory Assistant is a sanctioned post. Thus, following the orders stated supra, allowed the writ petition and granted the relief as stated supra.

9. Assailing the correctness of the order made in W.P.No.24392 of 2014 dated 09.09.2014, Mr.PS.Shiva Shanmugha Sundaram, learned Special Government Pleader for the appellants submitted that the writ Court has failed to consider G.O.Ms.No.115, School Education (D2) Department dated 30.05.2007 in proper perspective, wherein the Government have directed that filling up of post should be done only by outsourcing, subject to the condition that the expenses should be met by the concerned schools. According to him, the Management has not obtained prior permission from the Directorate before filling up the post and that is why the District Educational Officer, http://www.judis.nic.in Erode has returned the proposals indicating that after permission granted by the Director of School Education, appointment could be made. It is also his contention that in the absence of any challenge to G.O.Ms.No.115, School Education (D2) Department dated 30.05.2007, management of CSI Boys Higher Secondary School, Erode, cannot fill up the post.

10. Heard Mr.PS.Shiva Shanmuga Sundaram, learned Special Government Pleader and perused the materials available on record.

11. Fact that CSI Boys Higher Secondary School, Erode, is a minority institution has not been disputed. Consequent to the promotion of Thiru.Edwin Pitchayya, on 08.10.2010, the then Laboratory Assistant to the post of Junior Assistant, vacancy in the post of Laboratory Assistant has arisen in CSI Boys Higher Secondary School, Erode. According to CSI Boys Higher Secondary School, Erode, the 2nd respondent, one of the non-teaching staff viz.Mr.J.Charles Prem Kumar, 1st respondent has been appointed on 29.11.2011 in the vacant post of Laboratory Assistant. Along with the appointment order, joining report and other additional documents, CSI Boys Higher Secondary School, Erode, the 2nd respondent has sent a proposal dated 30.11.2011 to the District Educational Officer, Erode requesting for approval of the appointment of the 1st respondent as Laboratory Assistant from 29.11.2011. Said proposal has been returned with the following note:

http://www.judis.nic.in m/jp/K/vz; 8519-M3-2011 ehs; 12/2011

2) jpUg;gg;gLfpwJ

3) <nuhL rp/v!;/I (M) nk/ep/g/apy; Ma;tf cjtpahsu; gzpaplj;jpid epug;g gs;spf;fy;tp ,af;Fehpd; Miz bgwg;gl;lt[ld; epug;gpf;bfhs;syhk; vd jhshsUf;F bjhptpf;fyhfpwJ/

4) gs;spf;fy;tp ,af;Fehpd; Miz bgwg;gl;oUg;gpd; mjid ,izj;J fUj;JU mDg;g[khW bjhptpf;fyhfpwJ/ Xg;gk;

khtl;lf; fy;tp mYtyu;

<nuhL ,izg;g[ fUj;JU (k) gzpg;gjpntL xg;gk;

CORRESPONDENT C.S.I.Boys Hr. Sec. School Erode.

Translated version of the above: A.Thi.Mu.No.8519/B3/2011 Dt.: .12.2011

2) Returned

3) Correspondent is informed that the post of Laboratory Assistant in CSI Boys Hr.Sec. School, Erode, shall be filled up after receiving the order of Director of School Education.

4) If the order of Director of School Education has been received, proposals may be sent enclosing the same.

Sd/-

District Educational Officer, Erode Encl: Proposals and Service Register.

Sd/- CORRESPONDENT C.S.I.Boys Hr. Sec. School Erode.

12. Being aggrieved by the return and contending inter alia that the management had not taken any legal steps, Laboratory Assistant/1st respondent has preferred the instant Writ petition.

13. After considering the existing non-teaching post in Government aided high school and Higher Secondary school and the letters of the Director http://www.judis.nic.in of School Education, Chennai dated 11.12.2006 and 16.04.2004 respectively, and Government Order (1D) No.37, School Education Department dated 08.02.2007, Government of Tamilnadu have issued orders in G.O.Ms.No.115 School Education (D2) Department dated 30.05.2007.

14. Inasmuch as G.O.Ms.No.115, School Education (D2) Department dated 30.05.2007, has been pressed into service and having regard to the contentions of the learned Special Government Pleader that purport of the Government Order has not been taken note of by the writ Court, we deem it fit to extract the same.

SUMMARY School Education – Filling up of the Non-teaching Staff Vacancy in Government Aided High School and Higher Secondary School – Orders released.

SCHOOL EDUCATION (D2) DEPARTMENT G.O.Ms.No.115 Dated: 30.5.2007 Read: 1. Director of School Education, Chennai – 600 006 Na.Ka.No.30072/D(4)/06 dated 11.12.2006 and 71599/D(E4)/99 dated 16.4.2007.

2. Government Order (1D) No.37, School Education Department dated 8.2.2007.

http://www.judis.nic.in ORDER:

As per the Government Order released in Ref.No.2 the permission was granted to fillup the post of Non-teaching Staff in Government High and Higher Secondary Schools.

i. All the vacancy to the post of Junior Assistant may be filled up.

ii. In the vacant post of Watchman, 50% of the vacancy may be filled up by (outsourcing) TEXMO.

iii. All the vacancies in the post of Sweeper and Scavenger may be filled up by the out sourcing.

iv. There is no need for filling up the vacancy in the post of Gardener and Waterman.

v. In all the vacancies in the post of Office Assistant, 50% vacancy may be filled up. Another 50% may be filled up after re-consideration.

2. The Director of School Education in Ref.No.1 letter informed that the following vacancies in the Non-teaching post in the State Government Aided Schools.

Post Vacant Post Junior Assistant 164 Office Assistant 281 Watchman 176 Scavenger 29 Sweeper 40 Scavenger cum Sweeper 7 http://www.judis.nic.in

3. In this situation, on the basis of the Government Order permitting the filling up of Non-teaching staffs vacancies in the Government High and Higher Secondary Schools, similarly, the vacant in the Non-teaching Staff in the Government Aided High and Higher Secondary Schools are permitted to fill up as above said and this orders are issued.

I. The 164 Junior Assistant vacancies as informed may be filled up in the Government Aided High and Higher Secondary Schools.

II. So far as to the post of Office Assistant is concerned, in the informed 281 vacancies, 50% i.e., 140 vacancies, the permission is granted to fill up. While filling up these vacancies as per the Rules now followed, at first as per the students strength the eligible vacancies is fixed, and if that fixed vacancy is more than 140 then that 140 post may be filled up.

III. As far as the vacancies in the post of Watchman, Scavenger, Sweeper and Scavenger-cum-Sweeper to be filled up, similarly to the Government Schools, the Government Aided School also permitted to fill up these posts by the outsourcing subject to the condition that the expenses should be meet out by the concerned schools.

4. This order is released after the consent from the Finance Department in A.Sa.No.1430/ES/P/07 dated 27.4.2007.

/By the order of the Governor/ Sd/-

To The Director of School Education, Chennai – 600 006.

The Treasury Commissioner, Chennai – 600 015.

Copy to:

Finance (Education II) Department, Chennai – 600 009.

The Office of the Chief Minister, Chennai – 600 009.

The Personal Assistant to the Minister of School Education, Chennai – 600 009.

Sent as per Order Sd/- Section Officer.

15. Nowhere in the said Government order there is a reference to the post of Laboratory Assistant. Though, Mr.PS.Shiva Shanmuga Sundaram, learned Special Government Pleader contended that writ Court had failed to consider the policy of the Government that posts could be filled up only by outsourcing subject to the condition that expenses should be met by the concerned schools, in the absence of inclusion of Laboratory Assistant post in the said Government Order, contentions to the contra, cannot be countenanced.

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16. When Government Order does not include the post of Laboratory Assistant, no aid can be taken from the said Government Order. All the contentions based on the said Government Order, are not tenable.

17. As stated supra, before the writ Court learned Additional Government Pleader appearing for appellants had submitted that management of CSI Boys Hr.Sec. School, Erode, be directed to resubmit the proposal seeking approval of the appointment in the post of Laboratory Assistant and appellants 1 to 3 be directed to pass appropriate orders regarding the approval of appointment of the 1st respondent, as per the order made in WP (MD) No.12049 of 2012. As reference has been made to the above said order, we called for the same.

18. In the abovesaid case also the proposal had not been rejected but returned for the production of fitness certificate, orders of the Director of School Education, Chennai, the 2nd respondent therein, for approval of appointment of a Record Clerk, in a sanctioned post to an aided minority higher secondary school. After considering, the rival submissions, writ Court in W.P.(MD) No.12049 of 2012 dated 18.07.2014, at paragraph Nos.5 & 6 ordered, as hereunder.

http://www.judis.nic.in "5. There is no provision which mandates that for filling-up a vacancy in a sanctioned post prior permission should be obtained from the Director of School Education. This has been held so by a learned Judge of this Court in a batch of writ petitions in W.P.(MD) Nos.6542 to 6544 and 5546 of 2014, by order dated 28.04.2014.

6. In view of the above, the impugned order, returning the proposal, is hereby set aside and the 5th respondent is directed to resubmit the proposal for approval of the appointment of the petitioner within a period of four weeks from the date of receipt of a copy of this order and on such re-submission of the proposal, the respondents 1 to 4 shall approve the appointment of the petitioner from the date of his appointment as Record Clerk, with all monetary benefits. No Costs. Connected M.P.(MD) No.1 of 2012 is closed."

19. Though such direction to the management of CSI Boys Hr.Sec.

School, Erode, 2nd respondent has not been issued in the instant case, perusal of the order made in W.P.(MD) No.12049 of 2012 dated 18.07.2014 indicates that on re-submission of proposals, appellants would approve the appointment of 1st respondent/Laboratory Assistant, as per the order made in W.P.(MD) No.12049 of 2012.

20. In Director of School Education and another vs.

K.S.Vivekanandan and another in W.A.(MD) No.213 of 2010 dated 05.10.2010, a Hon'ble Division Bench of this court (Hon'ble Mr.Justice P.Jyothimani and Hon'ble Mr.Justice S.Nagamuthu), while considering a similar plea of prior permission, for filling up a sanctioned post of Record Clerk, at paragraphs 5 to 8, held as follows:

http://www.judis.nic.in "5. It is not in dispute that in the third respondent school which is an aided private school, the post of Record Clerk was a sanctioned post and it was because of the incumbent J.Rajendran holding the post of Record Clerk was promoted as lab assistant and in the said vacancy, by following the procedure and conducting interview, held on 20.02.2008, the third respondent has found the writ petitioner eligible to hold the post and therefore, appointed the writ petitioner on 20.02.2008 and thereafter, a proposal was sent on http://www.judis.nic.in 04.04.2008 by the third respondent school to the second respondent for approval. The appointment in the third respondent school is governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules made thereunder which does not contemplate any prior permission from the authority to fill up the post which is within the sanctioned strength.

6. In fact, the learned single Judge has relied upon the earlier judgment passed by this Court in W.P.No.484 of 2007, dated 30.10.2007 which itself was passed based on the earlier order of this Court in W.P.No.10237 of 1994 directing the educational authorities to approve the appointment of Record Clerk and Lab Assistant in the said schools. It was following the similar orders only, the learned single Judge passed the abovesaid order. It is also stated that on an appeal filed by the educational authorities against the abovesaid order, writ appeal Nos.332 and 438 of 2008, came to be dismissed by the Division Bench of this Court on 04.08.2008.

7. The learned single Judge has also referred to another Division Bench of this Court passed in W.A.No.558 of 2008, dated 16.09.2008 which has considered the very effect of the G.O.Ms.No.115, dated 30.05.2007 wherein it was held that the Government order cannot be given effect to in cases where the vacancy arose before the issuance of the said Government Order and when appointment was made in an existing vacancy, the same cannot be denied. It was also held by the Division Bench that after the ban on employment was lifted as per Government order on 07.02.2006, there was no impediment for the private management to make appointment.

8. It was in those circumstances, the learned single Judge, in our view, has correctly, allowed the writ petition and issued direction for approval of the appointment of the writ petitioner. We do not see any infirmity in the order passed by the learned single Judge. Accordingly, the writ appeal stands dismissed. No costs. Consequently, M.P.(MD)No.1 of 2009 is closed."

21. Though decision in S.Rasheetha Banu Vs. State of Tamil Nadu, rep. by its Secretary to Government, Chennai - 600 009, reported in 2012 (4) MLJ 198, is rendered by a learned single Judge, the same has been rendered on the basis of Hon'ble Division Bench judgments and therefore, we deem it to consider the same. In S.Rasheedha Bhanu's case, appointment to the post of Secondary Grade Teacher, was made in a Minority school. After considering decisions pertaining to approval of appointment, in minority Schools, at paragraph Nos.7 and 8 writ Court ordered as hereunder.

"7. The issue involved in this Writ Petition was already considered by a Division Bench of this Court in W.A.No.1263 of 2001, dated 22.1.2004. In the said Judgment, it is 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 said judgment of the Division Bench was follows in W.P.(MD) No.11353 of 2008 dated 11.09.2009. As against the said order dated 11.09.2009, the department preferred W.A.(MD).No.703 of 2009. A Division Bench of this Court by Judgment dated 1.2.2011, dismissed the said Writ Appeal.

8. Applying the said judgments to the facts of the present case and having regard to the undisputed fact that the Government has issued G.O.(2D), School Education Department, dated 1.2.2011, conferring minority status on the fifth respondent school from the academic year 1990-1991 and directed that the appointment of the petitioner as Secondary Grade Teacher with effect from 1.4.1998 shall be approved and arrears of salary payable to the petitioner was directed to be paid, in my considered opinion, there can be no impediment for the respondents to approve the appointment of the petitioner as Secondary Grade Teacher with effect from 1.4.1998."

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22. Similar view has been taken by the same learned Judge in Dr.S.Sukumaran Vs. State of Tamilnadu rep. by its Secretary, Higher Education, Fort St. George, Chennai - 600 009 and others, reported in 2012(5) MLJ 670, following a Hon'ble Division bench judgment in W.A.No.2345 of 2011 dated 05.03.2012, at paragraph No.9, writ Court held thus:

" .... The petitioner having been appointed in a sanctioned post of the fourth respondent-college and the fourth respondent- college being a minority college, there is no necessity to get prior permission from the department and the said issue was considered by me in detail in W.P.No.19715 of 2009 dated 31.3.2011 and a direction was issued to approve the appointment of the petitioner following the Division Bench judgments. In the recent Division Bench judgment in W.A.No.2345 of 2011 dated 05.03.2012, also, the same view is taken."

23. In P.Ravichandran Vs. State of Tamil Nadu, rep. by Secretary to Government, Department of Higher Education, Chennai and others, reported in (2013) 7 MLJ 641, the question posed by a Hon'ble Division Bench was whether prior permission for filling up the sanctioned post in the appellant's aided college is required or not? After considering the statutory provisions and previous orders, a Hon'ble Division Bench of this Court, at paragraph Nos. 17 and 20 held thus.

http://www.judis.nic.in " 17. A Division Bench of Madurai Bench of this Court in W.A.(MD)No.462 of 2006, judgment dated 1.12.2006, considered the scope of Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 relying upon the earlier order passed on 13.8.2006, and held that for filling up an existing post in a Private Aided College, no prior approval is necessary as any such appointment shall be subsequently approved by the Department, and at that point of time the Department would have an opportunity to consider the availability of such post and rejection of approval on the ground that no prior approval was obtained before appointment, was set aside.

Same is the view taken in in the following orders of this Court:

(i) W.P.No.30618 of 2005, order dated 21.9.2005;

(ii) W.P.No.28396 of 2004, order dated 29.3.2006;

(iii) W.A.Nos.92 & 93 of 2008, judgment dated 6.1.2010;

(iv) W.P.(MD)No.174 of 2009, order dated 27.4.2010;

(v) W.A.Nos.140, 811/2006 & 805/2007, judgment dt.21.10.2010;

(vi) W.A.No.2858 of 2010, judgment dated 21.3.2011;

(vii) W.A.(MD)No.1088 of 2011, judgment dated 19.10.2011;

(viii) W.A.No.2345 of 2011, judgment dated 5.3.2012;

(ix) (2012) 5 MLJ 670 (Dr.S.Sukumaran v. State of Tamilnadu) rendered by one of us (NPVJ); and

(x) W.A.No.474 of 2013, judgment dated 3.4.2013.

Thus, the issue regarding seeking prior permission for filling up the vacant post in aided College within the academic year was already settled in series of decisions and all the above said orders are implemented by the respondents 1 and 2. In such circumstances, it is not open to the respondents to again and again contend that only after getting prior permission from the Director of Collegiate Education, vacant sanctioned posts can be filled up by the management.

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20. In the light of the above findings as well as the decisions, we conclude this Judgment in the following manner:

(1) There is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.

(2) If the appointment made by the College Committee in the sanctioned vacant post is in violation of any of the statutory provision, it is open to the Regional Joint Director of Collegiate Education to deny grant-in-aid to the said person appointed in the vacant post.

(3) The teaching staff appointed must be fully qualified, whose qualification is approved by the University to which the college is affiliated. Insofar as the non-teaching staff are concerned, the candidate must possess the qualification prescribed by the Government.

(4) The College Committee while filling up the vacant post, should follow the procedures stated in Rule 11(1A) to 11(4)(ii).

(5) If there is no rival candidate for any post, the appointment is bound to be approved for the purpose of payment of pay and allowances, by the Regional Joint Director of Collegiate Education.

The writ appeal is disposed of with the above directions. No costs."

24. In The Manager, Concordia High & Higher Secondary Schools, Lutheran Primary and Middle Schools, Melim Primary School, Lutheran Centre, Nagercoil, Kanyakumari District and another Vs. Tmt.S.Christy and two others, reported in 2013 WLR 691, the 1st respondent therein was appointed as a Post Graduate Assistant in a minority school, in a sanctioned post, which fell vacant consequent to voluntary retirement. Management sought for approval. Education Department did not approve on the ground that prior permission was required. Management did not approach the Court. But the 1st respondent therein, teacher approached this Court, for a mandamus, directing the District Educational Officer and the School Management to approve the appointment and to pay salary. Following the decision in W.A.Nos.93 and 94 of 2009, dated 06.01.2010, that for any sanctioned post, no http://www.judis.nic.pinrior approval is required, writ Court allowed the prayer. Education department did not prefer any appeal. But strangely, the Management preferred an appeal. Holding that it is the responsibility of the school to have obtained approval, a Hon'ble Division Bench of this Court, dismissed the appeal filed by the management.

25. In Director of School Education, Chennai and another vs.

J.Fredrick Jeyakumar and another in W.A. (MD) No.2 of 2015 dated 10.04.2015, a Hon'ble Division Bench, to which one of us is a party (Hon'ble Justice S.Manikumar), in the case of a Library Clerk, after considering the submissions, at para 10 to 12 held as follows:

http://www.judis.nic.in "10. The contention of the first respondent that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the appointment of the first respondent as Library Clerk, has considerable force. The appellants themselves have admitted in paragraph 5 of the counter filed in the writ petition that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the post of Library Clerk. The appellants have not rejected the proposal, for approval of appointment of the first respondent, on the ground of ban order or take a stand that the appointment of the first respondent can be approved only from lifting the ban order, dated 07.02.2006. Therefore, the appellants cannot be allowed to improve their case in appeal, by relying on various Judgments of this Court, including the Judgment of this Court, dated 24.03.2014, made in Review Application (MD)No.101 of 2013, to which, one of us [V.M.VELUMANI, J.] was a party, wherein it has been held that the appointment of non-teaching staff should be approved only from the date of lifting of the ban order, i.e., 07.02.2006.

11. In all these Judgments, the proposal for approval of appointment of non-teaching staff was rejected on the ground of ban order. In the present case, the proposal to approve the appointment of the first respondent was rejected on the ground of no prior permission was obtained for approval.

12. For the reasons stated above, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed."

26. In Secretary to Government, Education Department, State of Tamil Nadu and others vs. A.Maria Selvam and others in W.A. (MD) Nos.888 to 891 etc. batch of writ appeals and Review petitions filed by the Government, a Hon'ble Division Bench of this court, to which one us is a party (Hon'ble Justice S.Manikumar), held as follows:

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20. It is the main contention of the learned Special Government Pleader that G.O.Ms.No.91, P & A.R.Department, dated 06.07.2006, G.O.Ms.No.37, School Education (R2) Department, dated 08.02.2007 and G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, issued by the Government in respect of appointing non- teaching staff in aided Private Schools have not been considered by this Court in its earlier judgments and therefore the judgments relied upon by the learned Single Judges are not applicable to the present cases.

21. But, we are not in agreement with the submission of the learned Special Government Pleader. As rightly contended by the learned counsel for the respondents/writ petitioners, in all the decisions rendered earlier, the applicability of above Government Orders and letters issued thereafter have been considered and discussed. Even in the decision rendered by a Hon'ble Division Bench of this Court in W.A.(MD)No.36 of 2010, dated 16.07.2013, against which Review Application(MD)No.98 of 2015 has been filed, the Hon'ble Division Bench has considered those Government Orders and rejected the appeal filed by the Educational Authorities. It is useful to extract the whole judgment, which reads as under:

"The Chief Educational Officer of the Kanyakumari District and the District Educational Officer of the Kanyakumari District have preferred this Writ Appeal as against the order of the learned single Judge dated 06.03.2009, who allowed Writ Petition (MD)No.1718 of 2009 following the decision of this Court in 2008 (5) CTC 648 (Thiruvalluvar Higher secondary School, Palamaner Road, http://www.judis.nic.in Gudiyattam, Vellore District rep. by the Secretary, School Committee, K.M.Govindarjan ..Vs.. The Government of Tamil Nadu rep. by its Secretary, Department of School Education, Fort St.George, Chennai and three others).

2. It is seen that the respondent School herein is one among the institutions receiving aid of the Government of Tamil Nadu. The post of Watchman fell vacant on 01.07.2007 due the retirement of then incumbent A. Mary Michael John with effect from 30.05.2007. In that vacancy, a fully qualified candidate G. Christu Manohara Dhas was appointed as Watchman with effect from 02.07.2007. For the disbursement of the salary, the School submitted a proposal. The District Educational Officer/2nd appellant herein returned the proposal. The respondent herein resubmitted the proposal to the 2nd appellant on 17.09.2008 and for this, till now, there is no reply.

3. Learned counsel for the respondent submitted that under G.O.Ms.No.212 (Personnel & Administrative Reforms Department) dated 29.11.2001, the ban imposed on Government employments has no relevance to the appointment made by the Private Schools and even that ban was lifted by subsequent G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006. Insofar as G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007 is concerned, it made no reference to the filling up of the post of Watchman in Private Schools. The new incumbent was appointed with effect from 02.07.2007. In the above circumstances, aggrieved by the return of the proposal by the second appellant, the respondent filed the writ petition.

4. Referring to the decision of this Court reported in 2008 (5) CTC 648 cited supra, the learned single Judge pointed out that this Court had considered the scope of G.O.Ms.212 (Personnel & Administrative Reforms Department) dated 29.11.2001 that there was absolutely no prohibition to appointment as non-teaching staff in private schools and that the 2nd appellant was under a misconception that G.O.Ms.No.212 (Personnel and Administrative Reforms-P) Department dated 29.11.2001 and G.O.Ms.No.115 (School http://www.judis.nic.in Education (D2) Department) dated 30.5.2007 prohibited the appointment of Watchman. In the circumstances, following the decision of this Court reported in 2008 (5) CTC 648 (Thiruvalluvar Higher secondary School, Palamaner Road, Gudiyattam, Vellore District rep. by the Secretary, School Committee, K.m.Govindarjan vs. The Government of Tamil Nadu rep. by its Secretary, Department of School Education, Fort St.George, Chennai and three others), the prayer sought for by the respondent was granted and the appellants were directed to disburse the grant-in-aid towards the salary of the said Watchman along with all the attendant benefits.

5. Learned Special Government Pleader appearing for the appellants submitted that the ban on appointment is uniformly followed; it being a policy decision, it will not be a subject matter of judicial review. He further pointed out that even as per G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007, there is no mention regarding the filling up of the post of Watchman. G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006 and G.O.Ms.No.91, Personnel and administrative Reforms (P) Department dated 6.7.2006 prescribe the guidelines for preparation of estimation of vacancies for filling up the posts by direct recruitment as well as by other methods. The guidelines issued by the Government have to be strictly followed in the matter of appointment. Since the respondents have failed to intimate the vacancies for the post of Watchman, the respondent herein cannot, as of right, claim the relief for the aid.

6. It is seen from the affidavit in the writ petition that intimation was sent to the respondent about the vacancy that had fallen. In paragraph 8 of the affidavit, the respondent specifically averred that for the disbursement of grant in aid towards salary, the school submitted its proposal to the District Educational Officer, which was returned. The school is stated to have re-submitted the proposal on 17.09.2008. There is no denial of the said fact by the appellants herein. Hence, in the absence of any material to show that the respondent herein had not intimated as to the vacancy to be filled up and there being no action taken on the representation made on 17.09.2008, we do not find any error in the order of the learned single Judge granting the prayer of the respondent. Further, by G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006, the ban that was imposed in G.O.Ms.No.212 (Personnel & Administrative Reforms Department) dated 29.11.2001 was cancelled. Quite apart from this, G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007 makes no reference to the appointment of non-teaching staff. In any event, as rightly pointed out by the respondent herein on intimation about the vacancies that had fallen, no action was taken by the appellants. Hence, no exception could be taken as to the order passed by this Court directing the appellants herein to disburse the grant in aid towards the salary of the Watchman along with the attendant benefits. Contrary to the assertion of the appellants, there is no interference as far as the policy decision is concerned. The decision given by the learned single Judge goes along with the policy of the Government and it is imperative that the educational institution does not suffer on account of the lethargy of the authorities.

7. Hence, the Writ Appeal is dismissed. Consequently, the connected M.P.(MD)No.1 of 2010 is closed. No costs."

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21. Likewise, recently another Hon'ble Division Bench of this Court, to which one of us (SMKJ) was a party, had an occasion to consider the same issue in W.A.(MD)No.2 of 2015, dated 10.04.2015, and dismissed the writ appeals filed by the Department, holding as under:

"8.We have heard the learned counsel appearing for the parties and perused the materials on record.

9. From the materials on record and pleadings, it is seen that the appellants have rejected the proposal for approval of appointment of the first respondent, on the ground that prior approval is not obtained and subsequently, as per G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, the Government must permit the appointment of nonteaching staff. This http://www.judis.nic.in Court in the Judgment, dated 30.11.2010, made in W.A.(MD) No.813 of 2010 [The District Educational Officer, Paramakudi, Ramanathapuram District Vs. I.Michaelammal and another] held that prior approval is not necessary.

10. The contention of the first respondent that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the appointment of the first respondent as Library Clerk, has considerable force. The appellants themselves have admitted in paragraph 5 of the counter filed in the writ petition that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the post of Library Clerk. The appellants have not rejected the proposal, for approval of appointment of the first respondent, on the ground of ban order or take a stand that the appointment of the first respondent can be approved only from lifting the ban order, dated 07.02.2006. Therefore, the appellants cannot be allowed to improve their case in appeal, by relying on various Judgments of this Court, including the Judgment of this Court, dated 24.03.2014, made in Review Application (MD)No.101 of 2013, to which, one of us [V.M.VELUMANI, J.] was a party, wherein it has been held that the appointment of non-teaching staff should be approved only from the date of lifting of the ban order, i.e., 07.02.2006.

11. In all these Judgments, the proposal for approval of appointment of non-teaching staff was rejected on the ground of ban order. In the present case, the proposal to approve the appointment of the first respondent was rejected on the ground of no prior permission was obtained for approval.

12. For the reasons stated above, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed."

22. Therefore, it is not correct to contend that this Court has not considered and discussed about the applicability of the Government Orders and letters, referred to above, issued in respect of appointment of non-teaching staff in aided private schools. Therefore, the contention of the learned Special Government Pleader on this aspect is liable to be rejected and accordingly it is rejected.

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23. It is the submission of the learned counsel for the respondent/writ petitioners that with regard to the appointment of non-teaching staff, in aided private schools, there is no need to get prior permission from the educational authorities, as Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 will apply only to teaching staff. In this regard, the learned counsel for the respondent/writ petitioners relied on a judgment of a learned Single Judge of this Court in A.Murugesan v. State of Tamil Nadu, reported in (2007) 4 MLJ 561. They have also relied upon a Hon'ble Division Bench decision of this Court in W.A.(MD)No.213 of 2014, dated 26.02.2014, wherein the Hon'ble Division Bench has held as follows:

"2.The writ petition has been filed for Mandamus to direct the District Educational Officer, Tuticorin to approve the appointment of one P.Rajavel as Lab Assistant in the respondent School and to release grant-in-aide towards his salary, allowances and other attendant benefits.

3. The learned single Judge relied upon Rule 15 of the Tamil Nadu Private Schools (Regulation) Rules 1974 which states that a prior approval is required for appointment of teaching staff and not in respect of non-teaching staff which was upheld by the learned Single Judge as per the decision of this Court in A.Murugesan Vs. State of Tamil Nadu,k rep.by its Secretary and others reported in 2007(4) MLJ 561, and allowed the writ petition on the same lines.

4. We have perused the Rules as such and also the letter of the Chief Educational Officer, Tuticorin dated 17.10.2012. The said letter is not a rejection but only states that approval will be given in future. Therefore, we are included to accept the finding of the learned single Judge that no prior permission is required in respect of non-teaching staff."

24. The learned Special Government Pleader does not dispute the above law laid down by this Court. However, he submitted that the issue involved in these cases is as to whether while making appointments, the school authorities have followed the guidelines issued in the above mentioned Government Orders. We have already rejected the contention of the learned Special Government Pleader in this regard.

25. One more contention put-forth by the learned counsel for the respondents/writ petitioners is that the action of the concerned educational authorities in not approving the appointment of the respondents/writ petitioners would amount to violation of Articles 14 and 16 of the Constitution, inasmuch in similar cases where the orders of this Court have been complied with and appropriate Government Orders have been issued, implementing the orders of this Court. In support of the above submission, learned counsel for the respondents/writ petitioners relied on G.O.(4D)No.9, School Education (D2) Department, dated 06.03.2012 and G.O.(4D)No.25, School Education (D2) Department, dated 04.09.2012, wherein the orders of this Court have been complied with, in letter and spirit. Those two Government Orders are extracted hereunder.

26.G.O.(4D)No.9, School Education (D2) Department, dated 06.03.2012, reads as under:

"RUf;fk;

g s; s p f; fy;tp ? cjtp bg Wk; g s; s p f s ; ? Jhj;Jf; Fo khtl;lk;. nfhtpy; gl; o. cjtpb g W k ; vtbu!;l; khhpag; g ehlhh; nky; e piy g; g s; s p ? 01/03/1989 Kjy; fhypahft[ s; s ,s e piy cjtpah s h ; gzpaplj;jpid epug; g pl m Dkjp nfhhp g s; s p r ; brayh s u h y ; bjhlug; gl;l tHf;F ? e Pjp g; n g u hiz kD (vk;/o) vz;/2218- 2009y; brd;id cah; e P j p k d ; w kJiuf; fpis tH';fpa 01/04/2009k; eh s p l;l jPh; g; ghiz ? jPh; g; ghizapid bray; g Lj;jp Miz bt s p a pl g; g L f p w J/ ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?

? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?

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1/tHf;F e Pjp g; n g u hiz kD vz;/2218- 2009 y; kw; Wk; gy;tif kD vz;/1 kw; Wk; 2- 2009y; brd;id cah; e P j p k d ; w kJiuf; fpis tH';fpa jPh; g; g[.

eh s ;/01/04/2009/ 2/nky;Kiwa P l; L tHf;F (lgp s ; a[[/V/(vk;/o)) vz;/391- 2010 kw; Wk; gy;tif kD vz;/3-2010y; brd;id cah; e P j p k d ; w kJiuf;fpi s tH';fpa jPh; g; g[. eh s ;/27/09/2010/ 3/gs; s p f; fy;tp ,af;F e h p d ; fojk; e/f/vz;/35466- o2- ,1- 2009 eh s ;/13/07/2011 Miz ******** Jhj;Jf; Fo khtl;lk;. nfhtpy; gl; o. cjtpb g W k ; vtbu!;l; khhpag; g http://www.judis.nic.in ehlhh; nky; e piyg; g s; s p r; brayuhy;. mu Rf; fojk; vz;/11462- o2- 2006 ? 1 . eh s ;/26/05/2006 kw; Wk; g s; s p f; fy;tp ,af;F e h p d ; bray; Kiwf s ; e/f/vz;/86703- o1- ,-2006. eh s ;/26/09/2006 Mfpatw; wpid ,uj;J bra;jplt[k;. mg; g s ; s p a p y ; 1/03/19896 Kjy; fhypahf c s ; s ,s e piy cjtpah s h ; gzpaplj;jpid epug; g pl m Dkjp ntz;oa[ k; brd;id cah; e P j p k d ; w kJiuf; fpis apy; bjhlug; gl;l kJiuf; fpis tH';fpa nkny Kjyhtjhfg; gof;fg; gl;l jPh; g; ghizapy; gpd;tUkh W Mizaplg; gl;L s ; s J/ "

".......When the matter came up for hearing, Mr.K.Balasubramanian, Learned Additional Government Pleader appearing for the respondents submitted that the issue involved in this writ petition is already covered by a decision of this Court reported in 2007(4) MLJ 561 (a.Murugesan Vs.State of Tamil Nadu, rep. by its Secretary, Department of School Education, Chennai and others). His submission is placed on record.

7. In view of the said submission made by the learned counsel for the respondents, the impugned orders are set aside and the writ petition is allowed".

2/murhiz (epiy) vz;/212. gzpahsh; kw;Wk; eph;thf rPh;jpUj;jj; Jiw. ehs;/29/11/2001?d;go 29/11/2001 Kjy; mkypy; ,Ue;j epakdj; jilahiz. murhid (epiy) vz;/14. gzpahsh; kw;Wk; eph;thf rPh;jpUj;jj; Jiw. ehs;/07/02/2006y; tpyf;fpf; bfhs;sg;gl;lJ/ ,jidj; bjhlh;e;J. murhy; btspaplg;gl;l muRf; fojk; vz;/11462-o2-2006?1. gs;spf;fy;tp. ehs;/26/05/2006?y; cjtpbgWk; cah;epiy-nky;epiyg; gs;spfspy; Mrphpauy;yhjg; gzpahsh;fis mDkjpg;gjw;fhd jpUj;jpa http://www.judis.nic.in bewpKiwfs; (Revised Norms in fixing Non-Teaching Staff in Aided School) tFg;gjw;bfd mikf;fg;gl;l cah;kl;lf; FGtpd; eltof;iff; Fwpg;gpd; mog;gilapy; ,Wjpahiz gpwg;gpf;fg;gLk; tiu Mrphpauy;yhg; gzpapl';fis epug;g[tjw;F tpjpf;fg;gl;l jilahizia tpyf;fpf; bfhs;s ntz;oa mtrpak; vHtpy;iy vdj; bjhptpf;fg;gl;Ls;sJ vd;Wk;. nkYk;. jkpH;ehL m';fPfhpf;fg;gl;l jdpahh; gs;spfs; (xG';FKiw) tpjpfs; 1974. tpjp 15(4) (3)y; rpWghd;ikaw;w gs;spfspy; gzpaplj;jpid epug;gpl Kjd;ikf; fy;tp mYtyhpd; Kd; mDkjp bgw ntz;Lk; vdj; bjhptpf;fg;gl;Ls;sJ vd;Wk;. Mfnt. nkw;fhz; tpjp. Mrphpah; kw;Wk; Mrphpauy;yhjg; gzpahsh;fSf;Fk; bghUe;Jk; vd;gjhy;. nkw;fhz; 01/04/2009?k; ehspl;l jPh;g;gpid vjph;j;J Jiw rhh;ghf brd;id cah;ePjpkd;w kJiuf; fpisapy; nky;KiwaPl;L kD vz;/391-2010 jhf;fy; bra;ag;gl;lJ vd;Wk; gs;spf;fy;tp ,af;Feh; bjhptpj;Js;shh;/ nkYk;. nkw;go nky;KiwaPl;L kDt[k;. nkny ,uz;lhtjhfg; gof;fg;gl;l jPh;g;ghizapy; js;Sgo bra;ag;gl;lJ vd;Wk;. ,jidaLj;J. jPh;g;ghizapd;go bray;gLtJ Fwpj;J bgwg;gl;l muR rpwg;g[ tHf;fwp"hpd; rl;lf; fUj;jpy; ,t;tHf;F nky;KiwaPL bra;a cfe;jJ my;y vdj; bjhptpf;fg;gl;Ls;sjhy;. Jhj;Jf;Fo khtl;lk;. nfhtpy;gl;o. vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;spapd; brayuhy;. mg;gs;spapy; 1/3/1989 Kjy; brd;id cah;ePjpkd;w kJiuf; fpisapy; bjhlug;gl;l tHf;F lgps;a[/g;gp(vk;o) vz;/2218-2009y; tH';fg;gl;l nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. nkw;fhz; gs;spapy; 1/3/1989 Kjy; fhypahf cs;s ,sepiy cjtpahsh; gzpaplj;jpid epug;gpl murpd; mDkjpapid tH';FkhW nkny K:d;whtjhfg; gof;fg;gl;l fojj;jpy; gs;spf; fy;tp ,af;Feh; muirf; nfl;Lf; bfhz;Ls;shh;/ 3/nkw;bjhptpf;fg;gl;l epiyapy;. tHf;F ePjpg;nguhiz kD vz;/2218-2009d; kPjhd nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. gs;spf; fy;tp ,af;Fehpd; ghpe;Jiuapid muR ftdKld; ghprPyid bra;J mjid Vw;fyhk; vdf; fUjp. mt;thnw Jhj;Jf;Fo khtl;lk;.

nfhtpy;gl;o cjtpbgWk; vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;spapy; 01/03/1989 Kjy; fhypahft[s;s xU ,sepiy cjtpahsh; gzpaplj;jpid. ,t;thiz btspaplg;gLk; ehs; Kjy; epug;gpf;bfhs;s mg;gs;spf;F mDkjp tH';fp muR MizapLfpwJ/ 4/,t;thiz epjpj;Jiwapd; m/rh/vz;/1934-fy;tp?2-2012. ehs;/08/02/2012y; bgwg;gl;l mj;Jiwapd; ,irt[ld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) j/rgpjh muR Kjd;ikr; brayhsh;"

27.G.O.(4D)No.25, School Education (D2) Department, dated 04.09.2012, reads as under:

"RUf;fk;

gs;spf; fy;tp ? cjtp bgWk; gs;spfs; ? fd;dpahFkhp khtl;lk;. Mrhhpg;gs;sk;. cjtpbgWk; g[dpj n$hrg; nky;epiyg; gs;sp ? mDkjpf;fg;gl;l gzpaplj;jpy; eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp//rp//nkhp Rnyhr;rdh vd;guJ epakdj;jpid Vw;gspf;ff; nfhhp bjhlug;gl;l tHf;F ? ePjpg;nguhiz kD (vk;/o) vz;/1097-2009y; ? 10/02/2009 md;W tH';fg;gl;l jPh;g;g[ ? jPh;g;ghizapid bray;gLj;Jjy; ? Miz btspaplg;gLfpwJ/ ???????????????????????????????????????????????????

???????????????????

gs;spf; fy;tp (o2)j; Jiw murhiz (4o )vz;/25 ehs;/04/09/2012 jpUts;Sth; Mz;L ? 2043 Mtzp ? 19/ http://www.judis.nic.in 1/tHf;F ePjpg;nguhiz kD vz;/1097-2009y; brd;id cah;ePjpkd;w kJiuf; fpisapd; 10/02/2009 ehspl;l jPh;g;g[ 2/ePjpg;nguhiz nky;KiwaPL (vk;/o) vz;/609-2009 kw;Wk; gy;tif kD vz;/2-09d; kPJ brd;id cah;ePjpkd;w kJiuf; fpisapd; 25/11/2009 ehspl;l jPh;g;g[ 3/gs;spf; fy;tp ,af;Fehpd; fojk; e/f/vz;/14743-o1-,3-2009 http://www.judis.nic.in ehs;/12/07/2011. 22/12/2011 kw;Wk; 20/07/2012 ******** Miz fd;dpahFkhp khtl;lk;. jf;fiy fy;tp khtl;lk;. Mrhhpg;gs;sk;. g[dpj n$hrg; nky;epiyg; gs;spapy; fhypahf ,Ue;j bjhHpw;fy;tp Mrphpah; gzpaplj;jpy; jpUkjp/ rp/nkhp Rnyhr;rdh vd;ghiu bjhHpw;fy;tp Mrphpauhf 25/06/1991 Kjy; nkw;fhz; gs;sp eph;thfk; epakdk; bra;jJ/ mnj gs;spapy; gFjpneuf; ifj;bjhHpyhrphpauhf epakdk; bra;ag;gl;l jpU/$p/me;njhzp vd;gtuhy; bjhlug;gl;l tHf;F brd;id cah;ePjpkd;wj;jpy; epYitapy; ,Ue;jjhYk;. mt;tHf;fpd; jPh;g;gpd;go. jpU/$p/me;njhzp vd;ghUf;F nkw;fhz; gs;spapy; bjhHpw;fy;tp Mrphpauhf epakd xg;g[jy; tH';fg;gl;ljhYk;. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghh; bjhHpw;fy;tp Mrphpauhf bra;ag;gl;l epakdk; Vw;gspf;fg;gltpy;iy/ nkYk;. nkw;fhz; gs;spapy; gjpt[U vGj;juhf gzpg[hpe;J te;j jpU/vk;/n$hrg; vd;ghh; ,sepiy cjtpahsuhfg; gjtp cah;t[ tH';fg;gl;ljhy; Vw;gl;l gjpbtGj;jh; fhypg; gzpaplj;jpy; jpUkjp/ rp/nkhp Rnyhr;rdh vd;ghh; 09/08/2005 Kjy; rhh;e;j gs;sp eph;thfj;jhy; epakdk; bra;ag;gl;lhh;/ jpUkjp/ nkhp Rnyhr;rdh vd;ghiu gs;sp eph;thfk; gjpt[U vGj;juhf epakdk; bra;jij Vw;gspf;ff; nfhhp rhh;e;j gs;sp jhshsuhy; jf;fiy khtl;lf; fy;tp mYtyUf;F mDg;gg;gl;l 27/07/2006 ehspl;l fUj;JUf;fs;. jf;fiy khtl;lf; fy;tp mYtyuhy; epuhfhpf;fg;gl;lJ/ ,e;epiyapy;. ,g;gs;spapy; ,sepiy cjtpahsuhf gzpg[hpe;j jpU/vk;/n$hrg; vd;ghh; 30/04/2008 md;W Xa;t[ bgw;wjhy; fhypahd ,sepiy cjtpahsh; gzpaplj;jpy;. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghiu 02/05/2008 Kjy; ,sepiy cjtpahsuhf eph;thfj;jhy; epakdk; bra;ag;gl;L. md;dhh; 02/05/2008 Kjy; bjhlh;e;J gzpg[hpe;J tUfpwhh;/ ,e;epakdKk; jf;fiy khtl;lf; fy;tp mYtyuhy; Vw;gspf;fg;gltpy;iy/ vdnt. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghhpd; gjpt[U vGj;jh; epakdj;ij 09/08/2005 KjYk;. ,sepiy cjtpahsh; epakdj;jpid 02/05/2008 KjYk; Vw;gspg;g[ mspj;J Cjpak;

http://www.judis.nic.in tH';ff; nfhhp nkw;fhz; gs;sp eph;thfj;jhy;. brd;id cah;ePjpkd;w kJiuf; fpisapy; bjhlug;gl;l tHf;F ePjpg;nguhiz kD (vk;/o) vz;/1097-2009y; 10/02/2009k; ehspl;l nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapy; kDjhuUf;F rhjfkhf jPh;g;g[ tH';fg;gl;lJ/ ,j;jPh;g;ghizapid vjph;j;J. Jiw rhh;gpy; jhf;fy; bra;ag;gl;l nky;KiwaPl;L kD brd;id cah;ePjpkd;w kJiuf; fpisahy; tH';fg;gl;l 25/11/2009k; ehspl;l nkny ,uz;lhtjhfg; gof;fg;gl;l jPh;g;ghizapy; js;Sgo bra;ag;gl;lJ/ 2/,e;epiyapy;. nkny. Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;Jk; bghUl;L. fd;dpahFkhp khtl;lk;. Mrhhpg;gs;sk;. g[dpj n$hrg; nky;epiyg; gs;spapy; mDkjpf;fg;gl;l gzpaplj;jpy;. eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp/rp/nkhp Rnyhr;rdh vd;ghuJ epakdj;jpid 09/08/2005 Kjy; gjpt[U vGj;jh; gzpaplj;jpYk;. 02/05/2008 Kjy; ,sepiy cjtpahsh; gzpaplj;jpYk;. Vw;gspf;f VJthf.

,g;gzpapl';fis nkw;Fwpg;gpl;Ls;s ehs; Kjy; epug;gpl murpd; mDkjp Mizapid tH';FkhW nkny K:d;whtjhfg; gof;fg;gl;l foj';fspy; gs;spf; fy;tp ,af;Feh; muRf;F ghpe;Jiu bra;Js;shh;/ 3/nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. nkny K:d;whtjhfg; gof;fg;gl;l gs;spf; fy;tp ,af;Fehpd; ghpe;Jiuapid Vw;W. fd;dpahFkhp khtl;lk;. jf;fiy fy;tp khtl;lk;. Mrhhpg;gs;sk;. cjtpbgWk; g[dpj n$hrg; nky;epiyg; gs;spapy; mDkjpf;fg;gl;l gzpaplj;jpy;. eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp/rp/nkhp Rnyhr;rdh vd;ghuJ epakdj;;jpid ,jid xU rpwg;g[ epfH;thff; fUjp. ntW ve;j epfH;tpw;Fk; Kd; epfH;thff; fUjf;TlhJ vd;w epge;jidf;Fl;gl;L. 09/08/2005 Kjy; gjpt[U vGj;jh; gzpaplj;jpYk;. 02/05/2008 Kjy;

,sepiy cjtpahsh; gzpaplj;jpYk; Vw;gspf;fyhk; vdf; fUjp. mt;thnw. mjd;bghUl;L. 02/05/2008 Kjy; ,sepiy cjtpahsh; gzpaplj;jpida[k; epug;gpl mDkjp tH';fp. muR MizapLfpwJ/ 4/,t;thiz epjpj;Jiwapd; m/rh/vz;/5942-fy;tp?2-2012. ehs;/12/03/2012y; bgwg;gl;l mj;Jiwapd; ,irt[ld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) http://www.judis.nic.in j/rgpjh muR Kjd;ikr; brayhsh;"

28. From the above, it is clear that in compliance with the orders of this Court, the Government have issued the above orders in respect of similarly placed persons. Hence, we find every force in the submission of the learned counsel for the respondents/writ petitioners in this regard.

29. In view of the above, all the writ appeals filed by the State and its authorities are liable to be rejected. Accordingly, they are dismissed. No order as to costs. Connected miscellaneous petitions are also dismissed.

30. Coming to the review applications, we would like to reiterate that review is not an appeal in disguise. Review can be made only if there is any mistake or apparent error on the face of the record or there is any clerical error in the order sought to be reviewed. We deem it fit to consider few decisions on the point of review.

(i) The Hon'ble Supreme Court in Lily Thomas v. Union of India, reported in 2000 (6) SCC 224, while considering the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India, held as follows:

"52. The dictionary meaning of the word "review" is the act of looking, offer, something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi & Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273], held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall http://www.judis.nic.in result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S.Nagaraj & Ors.etc. Vs. State of Karnataka & Anr.etc. [1993 Supp. (4) SCC 595] held:

"19. Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:

'...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.?

Basis for exercise of the power was stated in the same decision as under:

'It is impossible to doubt that the indulgence extended in such http://www.judis.nic.in cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.'

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.

53. This Court in M/s.Northern India Caterers (India) Ltd. Vs.Lt.Governor of Delhi [AIR 1980 SC 674] considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held: "It is well settled that a party is not entitled to seek a http://www.judis.nic.in review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta v. Sheikh Habib (1975) 3 SCR 935."

54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:

"Application for review of judgment -(1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but http://www.judis.nic.in from which, no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases.?

(ii) In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma , reported in AIR 1979 SC 1047, the Supreme Court has held that, "there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."

(iii) In yet another decision in RAJINDERSINGH Vs. Lt. GOVERNOR, reported in 2005 (13) SCC 289, at paragraph Nos.15 and 16, the Hon'ble Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases.

(iv) In Union of India v. Kamal Sengupta reported in 2008 (8) SCC 612, the Hon'ble Supreme Court, at Paragraphs 14 and 15, has held that, "14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.

http://www.judis.nic.in 15. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self- evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."

31. Reverting back to the case on hand, the review petitioners/appellants have not raised any ground falling within Section 114 read with Rule 1 of CPC for reviewing the order. Since the grounds in the review applications are similar to the grounds raised in the writ appeals and as we have rejected those grounds, the present review applications are also dismissed. No order as to costs. Connected miscellaneous petitions are also dismissed.

27. In Secretary to Government, Education Department, State of Tamil Nadu and 2 others vs. Vijay Amirtharaj and Another in W.A. No.232 of 2016 dated 04.03.2016, a Hon'ble Division Bench of this court (Hon'ble Mr.Justice M.Venugopal and Hon'ble Mr.Justice T.Mathivanan), while dealing with approval of appointment, of a watchman, in a minority school, at paragraph 11, held thus:

http://www.judis.nic.in "11. On a careful consideration of the contentions advanced on behalf of the Appellants and also this Court, on going through the impugned order dated 09.09.2014 passed by the Learned Single Judge in the Writ Petition, is of the considered view that the Learned Single Judge, while allowing the Writ Petition by setting aside the impugned order passed by the 3rd Appellant/3rd Respondent dated 09.03.2013, had taken note of the orders passed by this Court in W.P.(MD).No.484 of 2007, dated 30.10.2007, to the effect that 'when a post is a sanctioned one and any person was appointed to that sanctioned post consequent to the retirement of a person holding that post, there is no need to get approval and the Authorities are bound to approve the same' and issued consequent directions to the Appellants 1 to 3 to approve the appointment of the 1st Respondent/Petitioner from the date of his initial appointment within a period of 12 weeks from the date of receipt of a copy of the order, are not liable to be interfered with by this Court, since they are legally valid. Consequently, the Writ Appeal fails."

28. In State of Tamil Nadu, rep. by its Secretary, Department of School Education, Fort St. George, Chennai-09 and 3 others vs. K.Suresh and another in W.A.(MD) No.997 of 2015 dated 15.11.2016, a Hon'ble Division Bench (Hon'ble Mr.Justice M.Sathyanarayanan and Hon'ble Mrs.Justice J.Nisha Banu), considered the question as to whether prior permission is required to fill up the post of Lab Assistant, in a minority institution. After considering the rival submissions, at paragraphs 8 to 10, held as follows:

http://www.judis.nic.in

8. Per contra, the learned counsel appearing for the first respondent/writ petitioner has drawn the attention of the court to the typed set of documents, dated 23.09.2016, stating that the issue is no longer res integra for the reason that in the judgment dated 25.08.2013, passed in writ appeal No.908 of 2013, it is stated that prior approval is not necessary for the minority institutions and it was put to challenge before the Honourable Supreme Court of India by way Special leave Petition and the said SLP was also dismissed and that apart, when the scope of Rule 15(4) of the Tamil Nadu Private Schools Regulation Act, 1973 came up for consideration in 2012 WLR 463 (T.Sanjeeva Rao Vs. The Director of School Education and another), a Division Bench has followed the earlier decision dated 12.01.2010, made in W.A.Nos.1159 and 1160 of 2016 and held that in respect of sanctioned post in a minority institution, prior approval is not necessary. Insofar as the reliance made by the learned counsel for the appellants on G.O.Ms.No.115, dated 30.05.2007 is concerned, he submitted that the said Government Order has been set aside by this Court in W.P.(MD).Nos.11481 of 2008 and batch, (Deva Asir Vs. The Correspondent, St. Josephs Higher Secondary School, Mulagumoodu, Kanyakumari District), dated 15.03.2016. Against, the said common order passed in all the writ petitions, no appeal has been filed and as such, the said G.O.Ms.No.115, dated 30.05.2007,has no application on the case of hand and prays for dismissal of the writ appeal.

9. This Court has paid it's best attention to the rival submissions and also perused the documents filed in the form of typed set of papers carefully.

10. As rightly pointed out by the learned counsel appearing for the first respondent, this court, in the judgments dated 21.11.2014, 22.02.2016 and 11.03.2016 made in W.P.No.23173 of 2014, W.A.No.1508 of 2015 and W.A.No.74 of 2016 had held that for filling up a sanctioned post in a minority institution, prior approval is not necessary. That apart, the above stated common order, dated 15.03.2016 would also indicate that G.O.Ms.No.115, School Education Department, dated 30.05.2007, has been quashed. In the considered opinion of this Court, even otherwise G.O.Ms.No.115, dated 30.05.2007 has any application as it deals with the post of Junior Assistant, Office Assistant, Watchman, Sanitary worker cum Sweeper. However, in the case of hand, it is for the post of Lab Assistant. In the considered opinion of this Court, the learned Single Judge, on proper appreciation of facts and correct application of legal principles, has rightly reached the conclusion to allow the writ petition. There is no infirmity or error apparent on the face of the record. Hence, this Court is not interfering with the same.

29. In Government of Tamil Nadu and 3 others vs. Miss.S.Mary Victoria in W.A. No.13 of 2010 dated 07.12.2016, on the very same issue relating to Laboratory Record Clerk, a Hon'ble Division Bench of this Court, to http://www.judis.nic.winhich one of us is a party (Hon'ble Mr.Justice S.Manikumar) has considered decisions in writ appeals, as below:

6. Though Mr.K.Venkatramani, learned Additional Advocate General assailed the correctness of the order made in W.P.No.19225 http://www.judis.nic.in of 2009, dated 21/10/2009, on the grounds raised, in the Memorandum of Appeal, he has not disputed the fact that the challenge made to one of the similar orders passed by a Hon'ble Division Bench had been taken on appeal to before the Hon'ble Supreme Court in SLP (Civil) 987 and 9838 of 2010 (Secretary to Government and Others Vs. D.Samuel Raj Thomas & another), dated 26/3/2010, and that the same has been dismissed.

7. Learned Senior Counsel for the respondents, drew the attention of this Court, to the similar orders passed by the Hon'ble Division Benches, which are extracted hereunder:-

(i). In W.A.No.258 of 2009, etc., batch, (1. The Government of Tamil Nadu, rep. By its Secretary, Department of School Education, Fort St. George, Chennai 600 009 and three others Vs. Corlay Higher Secondary School, Tambaram) dated 12/7/2010, a Hon'ble Division Bench held as follows:-

" When the matter was taken up for hearing, the learned counsel appearing for the respondent has submitted that in a connected matter, viz., Special Leave to Appeal (Civil) Nos.987 and 9838 of 2010, (Secretary to Government and Others Vs. D.Samuel Raj Thomas & another), dated 26/3/2010, dismissed the Special Leave Petitions on the ground of delay and on merits and the question of law was left open. Producing a copy of the order in a connected matter in Special Leave to Appeal (Civil) 4732 of 2009 (Secretary Education Department & Others Vs. S.D.Rajkumar & Another), the learned counsel for the respondent has also submitted that in the said case, the Supreme Court has stayed the contempt proceedings, if any, and not the judgment passed in Writ Appeal. Therefore, it is submitted that since the main issue has been dealt with by the Supreme Court, nothing remains in the present writ appeals and they are liable to be dismissed."

(ii). In W.A.(MD) No.83 of 2010, (The District Educational Officer, Paramakudi, Ramanathapuram District Vs. Sourashtra Higher Secondary School, rep. By its Correspondent, Paramakudi, Ramanathapuram District), dated 31/8/2010, a Hon'ble Division Bench held as follows:-

http://www.judis.nic.in "2. The Writ Appeal pertains to appointment of a Watchman in a Private School. Admittedly, the said appointment was made prior to G.O.Ms.No.115 Education (2D) Department, dated 30/5/2007, which stipulates that in the event of any such appointment is made, it shall be subject to the condition that expenses of such appointment shall be met by the concerned private School.

3. This issue has already been decided in more than one Writ Appeals and one of the judgments dated 29/9/2008 made in W.A.(MD) No.609 of 2008, wherein, it has been held that in respect of appointments already made prior to issuance of G.O.Ms.No.115, Education (2D) Department, dated 30/5/2007, such Government Order should not be made applicable, was taken on appeal to the Supreme Court and the same was dismissed on 22/3/2010 on the ground of delay."

(iii). In W.A.No.1121 of 2009 (1. The Government of Tamil Nadu, rep. By its Secretary, Department of School Education, Fort St. George, Chennai 600 009 and three others Vs. Punitha Bagaya Annai Boys' Higher Secondary School, Tiruvannamalai) dated 18/10/2010, a Hon'ble Division Bench held as follows:-

"2. When the matter was taken up for hearing, learned counsel appearing for the respondent submitted that the issue is covered by the judgment of the Division Bench of this Court in Government of Tamil Nadu, rep. By its Secretary and Others Vs. Corley Higher Secondary School (W.A.Nos.258 of 2009 etc., batch).

3. In view of the same and following the earlier decision, this Writ Appeal is dismissed. No costs. Connected Miscellaneous Petition is closed."

(iv). In W.A.(MD) No.306 of 2011, (1. The Director of School Education, Chennai 600 006 and Another Vs. 1. P. Govil Pillai and Another) dated 4/3/2011, a Hon'ble Division Bench held as follows:-

"6. The learned counsel appearing for the first respondent submits that the said order dated 30/10/2007 made in W.P.(MD) No.484 of 2007, was challenged by the respondents # Education Department in Writ Appeal (MD) No.308 of 2008 and the said Writ http://www.judis.nic.in Appeal was also dismissed by a Division Bench of this Court on 4/8/2008. In the said judgment, the Division Bench, in paragraph Nos.4 and 5, has held as follows:-

4. After considering the rival submissions made on either side, following the judgment of the Supreme Court and the order of this Court, the learned Single Judge set aside the orders of the appellants with a direction to approve the appointment of the respondent/petitioner as Lab Assistant with effect from 7/2/2006 and the third respondent was directed to pass orders approving the appointment of the first respondent with effect from 7/2/2006 within a period of four weeks from the date of receipt of copy of the order.

5. We find no infirmity or illegality in the order of the learned Judge dated 30/10/2007 passed in W.P.(MD) No.484 of 2007. Therefore, the writ appeal fails and the same is dismissed."

(v). In W.A.No.1916 of 2009 (S. Arul Raj Vs. The Government of Tamil Nadu, rep. By its Secretary, Department of School Education, Fort St. George, Chennai 600 009 and three others) dated 19/9/2011, a Hon'ble Division Bench held as follows:-

"5. Learned counsel for the appellant submitted that this case is squarely covered by the decision of this Court dated 12/7/2010 in W.A.No.276 of 2009, wherein this Court has held as follows:-

4. When the matter was taken up for hearing, the learned counsel appearing for the respondent has submitted that in a connected matter viz., Special Leave to Appeal (Civil) Nos.987 and 9838 of 2010 (Secretary to Government & Others Vs. D. Samuel Raj Thomas & Another), the Supreme Court by order dated 26/3/2010 dismissed the Special Leave Petitions on the ground of delay and on merits and the question of law was left open. By producing a copy of the order in a connected matter in Special Leave to Appeal (Civil) 4734 of 2009 (Secretary Education Department & Others Vs. S.D.Rajkumar & Another), the learned counsel for the respondent has also submitted that in the said case, the Supreme Court has stayed the contempt proceedings, if any, and not the judgment passed in the Writ Appeal. Therefore, it is submitted that since the main issue has been dealt with by the Supreme Court, nothing remains in the present writ appeal and it is liable to be dismissed.

5. Learned Special Government Pleader appearing for the appellants, though not disputed the above position, sought time for getting instructions. However, he submitted that the stay granted by the Supreme Court relates only to contempt proceedings and there is no stay of the judgment made in the writ appeals.

6. In view of the fact that there is no stay in the Special Leave Petitions preferred against the judgment of the writ appeals relating to approval of appointment during the ban period and some of the SLPs were dismissed, the present writ appeal is dismissed."

6. Following the said decision, this writ appeal is allowed. No costs.

30. In Government of Tamil Nadu and 4 others vs. Rahmania Higher Secondary School in W.A. (MD) No.401 of 2012 dated 13.07.2017, a Hon'ble Division Bench of this court (Hon'ble Mr.Justice M.M.Sundresh and Hon'ble Mr.Justice N.Sathish Kumar), at paragraphs 1 to 3, held as follows:

http://www.judis.nic.in The writ appeal has been filed challenging the order of the learned Single Judge dated 31.10.2011, made in W.P.(MD)No.556 of 2011, by placing reliance on the Government Order passed in G.O.Ms.No.115 School Education Department dated 30.05.2007.

2. When the matter was taken up for hearing, the learned counsel appearing on both sides would submit that G.O.Ms.No.115 School Education Department dated 30.05.2007, itself was quashed by the order of this Court dated 15.03.2010 made in W.P.(MD) No.11481 of 2008 etc. batch, against which no appeal has been filed.

3. In view of the above, this Writ Appeal stands dismissed. No costs.Consequently, connected Miscellaneous Petition is also dismissed.

31. Thus, it is trite law that no prior permission is required from the Director of Social Education/ Elementary Education, as the case may be, to fill up a sanctioned post, in a minority institution. When Laboratory Assistant post is sanctioned to CSI Boys Hr.Sec. School, Erode, management of CSI Boys Hr.Sec. School, Erode, the 2nd respondent, is entitled to fill up the post and approval of appointment is granted only to satisfy as to whether the incumbent, who has been appointed to the post is qualified or not.

32. Therefore, holding that G.O.Ms.No.115, School Education (D2) Department dated 30.05.2007, as inapplicable to the case on hand and rejecting the contention of Mr.PS.Shiva Shanmuga Sundaram, learned Special Government Pleader that prior permission is required from Directorate to fill up a sanctioned post and finding no merit, writ appeal is dismissed. No costs.

33. Having appointed J.Charles Premkumar, the 1st respondent as laboratory assistant in the resultant vacancy on 29.11.2011, management of CSI Boys Hr.Sec. School, Erode, 2nd respondent, ought to have pursued the matter with District Educational Officer, Erode District, 3rd appellant for approval and salary. Unfortunately, the Management of CSI Boys Hr.Sec. School, Erode, 2nd respondent had not taken up the matter with either with District Educational Officer, Erode District or the higher authorities or approached the Court of law, to redress the grievance of 1st respondent/laboratory assistant.

http://www.judis.nic.in

34. Management of CSI Boys Hr.Sec. School, Erode, 2nd respondent is directed to resubmit the proposals dated 30.11.2011 or make a fresh proposal to the District Educational Officer, Erode, 3rd appellant for approval of appointment of J.Charles Premkumar, the 1st respondent/Laboratory Assistant, within four weeks from the date of receipt of a copy of this order.

35. District Educational Officer, Erode, the 3rd appellant, is directed to remind the Management of CSI Boys Hr.Sec. School, Erode, 2nd respondent, to act as per the directions of this Court. On receipt of the proposal, District Educational Officer, Erode, the 3rd appellant, is directed to approve the appointment of J.Charles Premkumar, the 1st respondent and grant service and monetary benefits applicable to the post of laboratory assistant from the date of his appointment. Approval and monetary benefits should be paid within four weeks from the date of receipt of the proposal from school.

36. With the above directions, the writ appeal is dismissed. No costs.

Consequently, the connected Civil Miscellaneous Petitions are closed.

[S.M.K., J.] [R.S.K., J.] 27.11.2017 Index : Yes Internet : Yes Speaking/Non-speaking orders ars/asr http://www.judis.nic.in

S. MANIKUMAR, J.

AND R.SURESH KUMAR, J.

ars/asr W.A.No.1589 of 2017 CMP Nos.20843 & 20844 of 2017

27.11.2017

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