R RATHINAM Vs. CHIEF EDUCATIONAL OFFICER NAGERCOIL; DISTRICT EDUCATIONAL OFFICER; S M R V HIGHER SECONDARY SCHOOL

JUDGEMENT

(1.) In the third respondent School, which is an aided non-minority school, out of 9 sanctioned posts of Tamil Teachers, a vacancy arose due to the retirement of one P.Kalyanasundaram, on 31.05.2000. The petitioner, who is qualified to be appointed as Tamil Teacher, was appointed by the third respondent in the said vacancy, which is within the sanctioned strength, on 18.03.2003, after conducting interview, among 20 candidates sponsored by the District Employment Exchange and it is stated that immediately the petitioner joined in the third respondent School. It is further stated that on 24.01.2003 itself, the third respondent has sought for prior permission from the first respondent to fill up the vacancy. But, however, no order was passed by the first respondent. It was, in those circumstances, the petitioner came to be appointed on 18.03.2003 and after her appointment, a proposal was sent by the third respondent School on 25.05.2003 for approval of her appointment from the date of appointment, namely, 18.03.2003. It appears that the second respondent by an order, dated 13.02.2004, considering the no objection in the form of consent, dated 24.01.2003, has recommended to the first respondent for approval of the appointment of the petitioner from 14.01.2004. In spite of such proposal sent by the third respondent Management, dated 25.03.2003 for approval of appointment of the petitioner, the first respondent has passed the impugned order rejecting the same on the ground that the appointment of the petitioner was made on 18.03.2003 without prior permission, which is challenged on the ground that the appointment was made by the third respondent within the sanctioned strength and that it was only after finding out the availability of persons as per the provision of Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules (hereinafter referred to as 'the Rules') and calling for the list from the Employment Exchange and by conducting interview and also by following the selection process, the petitioner was appointed. A letter seeking prior approval was sent to the first respondent as early as on 24.01.2003, and the failure on the part of the first respondent in not passing either of the orders should be deemed to be a consent impliedly given, since the appointment was not outside the sanctioned strength and that the petitioner has been working as a Tamil Teacher in the third respondent school continuously from the date of her appointment, namely, 24.01.2003 till date and she is entitled for the salary for the work done, even under the principle of quantum meruit.

(2.) In the counter affidavit filed by the respondents, it is stated that inasmuch as the appointment of the petitioner is in violation of Rule 15(4) of the Rules, which, in categoric terms, contemplates prior permission and so long as prior permission was not obtained for the appointment of the petitioner, she is not entitled for approval of appointment from the date of her appointment, namely, 18.03.2003. The recommendation of the second respondent, dated 13.02.2004, is only recommendatory in nature and such recommendation cannot supersede the statutory provision contained in the Rules framed under the Tamil Nadu Recognised Private Schools Regulation Rules. Merely because the third respondent has sent a proposal for prior permission before the appointment of the petitioner, namely, on 24.01.2003, it does not mean that prior permission has been given. It is further stated that prior permission cannot be inferred by the conduct of the parties.

(3.) It is the contention of the learned Government Advocate that the purpose of prior approval is not merely a statutory requirement and an empty formality and it is for the purpose of enforcement of the Provision of Rule 15(4) of the Rules, which gives a pre-assumption right on the part of the other teaching staff, who are not regularised, working in the same school and next in succession, other non teaching staff, who are qualified to be appointed as a Teacher apart from the next category of Teachers from the other schools, who are re-deployed for want of vacancy. Therefore, prior approval for appointment by resorting to direct recruitment is necessary for the purpose of monitoring as to whether the management has followed the said procedure or not. Therefore, according to them, the appointment of the petitioner cannot be approved.