S SHINY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This writ petition has been filed by Ms. S. Shiny challenging the correctness of the impugned order passed by the first respondent, the Secretary to Government, School Education Department passed in G.O. Ms. No. 752, Education, Science and Technology Department dated 19.10.1996 and also the consequential proceedings of the third respondent, the District Elementary Educational Officer, Tirunelveli passed in Na.Ka. No. 3727/A4/08 dated 29.8.2008, to quash both the orders. Mr. S.N. Ravichandran, learned counsel for the petitioner submitted that when a vacancy arose in the fifth respondent-Hindu Middle School, Sankarapuram, Tirunelveli on the retirement of one Mrs. K. Selvarani from the post of full time Pre-Vocational Instructor (Tailoring) on 30.6.2006, the fifth respondent sought for permission to fill up the post by duly communicating to the third respondent-District Elementary Educational Officer, Tirunelveli. The third respondent, having considered the two points viz., the retirement of the full time Pre-Vocational Instructor Ms. K. Selvarani and the communication of the fifth respondent to fill up the said post, granted permission by the proceedings in O. Mu. No. 10808/A4/08 dated 22.4.2008. Subsequently, the fifth respondent notified this vacancy to the employment exchange. Later on, a newspaper advertisement was also issued in a leading Tamil daily "Daily Thanthi" on 24.4.2008 calling for application for the post of Pre-Vocational Instructor (Tailoring). Pursuant to the said advertisement given by the fifth respondent, the petitioner responded to the call and finally she was selected, as she had the qualification for the post of Pre-Vocational Instructor (Tailoring). After selecting the petitioner to the post of Pre-Vocational Instructor (Tailoring), the fifth respondent again submitted the proposal dated 29.4.2008 for approval of the appointment of the petitioner through proper channel viz., the Assistant Elementary Educational Officer, Valliyur. Based on the recommendation of the fourth respondent dated 29.4.2008 for approval of the appointment of the petitioner, the third respondent, after applying his mind, rightly approved the appointment of the petitioner by the proceedings dated 2.6.2008. In the meanwhile, the petitioner also joined the post on 2.6.2008. After sometime i.e., within a period of less than three months, the third respondent cancelled the order of approval, without any notice to the petitioner, on the ground that the fifth respondent should not fill up the post of Pre-Vocational Instructor (Tailoring) as per G.O. Ms. No. 752, Education, Science and Technology Department dated 19.10.1996. Aggrieved by the order of cancellation of approval without giving due notice, the petitioner was constrained to file this writ petition with the aforesaid prayer.

(2.) Assailing the correctness of the impugned orders passed by the first and third respondents, it was further contended that when the fifth respondent had complied with the procedure enumerated for appointment of the petitioner to the post of Pre-Vocational Instructor (Tailoring) and when the third respondent also granted permission by the proceedings dated 22.4.2008, based on G.O. Ms. No. 752 dated 19.10.96, without even calling for any explanation whatsoever either from the school or from the petitioner, the impugned orders should not have been passed. It was further contended that the third respondent, while cancelling the approval of appointment of the petitioner, has completely overlooked the subsequent Government Orders viz, G.O. Ms. No. 525 dated 29.12.97, G.O. Ms. No. 104 dated 12.7.2002, G.O. Ms. No. 39 dated 21.3.2003 and G.O. Ms. No. 125 dated 12.11.2003 passed by the first respondent, therefore, he pleaded, the third respondent cannot say that the post of Pre-Vocational Instructor (Tailoring) got lapsed when Mrs. K. Selvarani reached the age of superannuation on 30.6.2006. Adding his submission, it was further stated that the G.O. Ms. No. 752 dated 19.10.96 dealing with the upgradation of the full time craft teachers as Secondary Grade Teachers has not been fully appreciated by the third respondent. When the craft teachers, who were upgraded, have to teach both the vocational course and secondary grade subjects, now the question of imposing three conditions that either on the retirement or resignation or death of the teacher concerned, the post shall go back as Secondary Grade Teacher to the Panchayat Union School also does not arise, for the reason that when the fifth respondent school is having enough strength for the pre-vocational course in tailoring subject, the wrong appreciation of the G.O. Ms. No. 752 dated 19.10.96 by the third respondent for abolishing the post cannot arise, as it goes against the welfare of the students studying in the fifth respondent school. Therefore, it was further contended that the third respondent cannot cancel the approval of appointment, that too, without giving prior notice either to the petitioner or to the fifth respondent school. Since the third respondent has acted arbitrarily, the same requires to be interfered with. Finally, it was pleaded that the abolition of the craft teacher like Gardener, Agriculture, Horticulture etc., was done only due to non-availability of sufficient space and lack of infrastructure in the Government and panchayat union schools, whereas in the case of aided schools which were started 50 or 60 years ago, sufficient space and infrastructure are consistently maintained. Therefore, the impugned order passed by the third respondent based on G.O. Ms. No. 752 dated 19.10.96 that on the retirement of Ms. K. Selvarani, the said post cannot be filled up by appointing the petitioner in the fifth respondent school is not legally tenable or sustainable in law. It was also further stated that when the petitioner was appointed after a proper selection process through the interview conducted by the selection committee appointed by the fifth respondent school pursuant to the advertisement made in Daily Thanthi Tamil newspaper dated 24.4.2008 and the approval was granted by the third respondent, she was also allowed to receive the salary for sometime. Moreover, when this writ petition was filed, this Court passed an order of stay of operation of the impugned order and by virtue of the order passed by this Court, the petitioner is continuing in the said post, hence, he prayed for allowing this writ petition.

(3.) Per contra, the learned Government Advocate appearing for the respondents 1 to 4, strenuously contending against the submissions made by the learned counsel for the petitioner, pleaded for no interference with the impugned order passed by the third respondent, as the same was passed on the basis of G.O. Ms. No. 752 dated 19.10.96. Adding further, the learned Government Advocate pinpointed before this Court that when the post of Pre-Vocational Instructor (Tailoring) in the fifth respondent school got lapsed by the retirement of Ms. K. Selvarani on reaching the age of superannuation on 30.6.2006, the three conditions mentioned in the G.O. Ms. No. 752 dated 19.10.96 would not allow the fifth respondent school to appoint any more person in the said post. But suppressing the said fact, the fifth respondent school wrongly sought for permission to fill up the said post and the third respondent also, without considering the same, inadvertently passed the order dated 22.4.2008 granting permission to fill up the post in the fifth respondent school. Thereafter, when the third respondent came to know that the fifth respondent has obtained an order of approval for appointing the petitioner in the school, rightly cancelled the approval given in favour of the petitioner. In any event, he pleaded, when the third respondent has cancelled the order of approval only on the basis of G.O. Ms. No. 752 dated 19.10.96 passed by the first respondent, which contemplated three situations that the post of Pre-Vocational Instructor (Tailoring) shall go back to the panchayat union school on account of the retirement or resignation or death of the concerned teacher, the petitioner cannot find fault with the impugned orders on the lame ground that no notice was given to her or to the fifth respondent school. Finally, it was contended that when the fifth respondent school is always at liberty to approach the third respondent for granting sanction to the creation of the post of Pre-Vocational Instructor (Tailoring), it is open to the school to apply and get appropriate orders. As the school has not done so, no sympathy or indulgence can be shown.