D. Babusamy Kamalakaran vs The State of Tamil Nadu

K. Ravichandrabaabu, J.—The Petitioner seeks for a mandamus directing the third respondent to approve the appointment of the Petitioner as B.T. Assistant in Science during the period 5.1.2001 to 09.08.2002 and to disburse the monthly benefits in respect of the above said period.

The case of the Petitioner is as follows:

He is working as P.G. Assistant in Zoology in the fifth respondent school which is a recognized and aided minority educational institution. Originally one post of B.T. Assistant fell vacant in the fifth respondent/school on 1.6.1997 due to the retirement of the previous incumbent on 31.5.1997. As there were sufficient B.T. Assistants in History, the said vacancy was filled up by a B.T. Assistant in Science. The school submitted a proposal to the third respondent requesting to permit the conversion of the post from history into science. The third respondent granted permission and directed the school to fill up by appointing a subject teacher as per the work-load through proceedings, dated 21.10.1997. Another Post of B.T. Assistant in History fell vacant on 1.12.2000 due to the voluntary retirement of the then incumbent. As per the direction of the Chief Educational Officer, dated 21.10.1997, the fifth respondent school appointed the Petitioner as B.T. Assistant Science on 5.1.2001. Thereafter the school sent proposal to the fourth respondent for direction to convert the post of B.T. Assistant in History into B.T. Assistant in Science and consequently to approve the appointment of the Petitioner. The Chief Educational Officer granted permission for conversion of the post of B.T. Assistant in History into B.T. Assistant in Science through his proceedings dated 09.08.2002. Thereupon the Petitioner''s appointment was also approved w.e.f. from the date of such permission and not from the date of the Petitioner''s original appointment namely 5.1.2001. The Petitioner made several representations commencing from 28.07.2003 onwards till 25.2.2013 requesting the respondents to approve the appointment of the Petitioner from the date of original appointment and pay the monetary benefits. Since the said request was not considered, the present Writ Petition is filed seeking for a mandamus.

The fourth respondent filed a counter affidavit, wherein, it is stated that the permission for conversion of the post was granted on 9.8.2002, after getting assurance from the school that the vacancy that will become vacant by the retirement of the existing teacher in science will be filled up only with a teacher with B.Ed. Maths. It is further stated in the counter that any direction shall take effect from the date on which such orders were made. It is further contended that the Petitioner having kept silence for nearly ten years, cannot file the present Writ Petition and therefore the same is hit on the ground of delay and laches.

Mr. Xavier Rajini, learned counsel for the Petitioner relied on a decision of this Court in the case of C. Wilson Sundar Raj. vs. Director of School Education, Chennai-600 006 and others reported on (2012) 3 MLJ 678 to contend that once the conversion of the post is granted, then the approval should be granted not from the date of such conversion and on the other hand, it should be granted from the date of original appointment.

Per contra, learned Additional Government Pleader submitted that the Petitioner has come to this Court after a long delay and the order of conversion was passed subject to certain undertakings given by the school.

Heard the learned counsels appearing on either side.

The Petitioner is only seeking for a mandamus directing the third respondent to approve his appointment as B.T. Assistant in Science during the period from 5.1.2001 to 9.8.2002. Insofar as the period commencing from 10.8.2002 is concerned, the Petitioner has been granted approval already and he was paid salary. The reason for not granting approval to the disputed period is that the Petitioner was holding the said post during that period when there was no order of conversion passed by the department. The issue as to whether the approval has to be granted from the date of conversion or from the date of appointment is already considered by this Court in a decision reported in (2012) 3 MLJ 678. In that decision, this Court has found that once the authority has granted permission to convert the post, such permission should take effect from the date of appointment of the particular teacher. Therefore the Petitioner ought to have been granted approval from the date of the appointment and not from the date of conversion.

It is represented by the learned counsel for the Petitioner that insofar as the undertaking given by the school is concerned, the same is in respect of the appointment of the other teacher which has already been complied with. At any event, as the school has made a request for conversion to the post after appointing the Petitioner herein, and the authorities having granted conversion, cannot refuse approval from the date of appointment. Therefore in my considered view, the case of the Petitioner squarely falls within the decision made by this Court and reported in 2012(3) MLJ 678.

Insofar as the objection raised with regard to delay and laches is concerned, I am not convinced with the contention made by the learned Additional Government Pleader. The Petitioner has not kept quiet for all these ten years without taking any steps. On the other hand, it is seen that he has made several representations from 28.07.2003 onwards. Therefore since the non-approval of the appointment for the disputed period being a continuous cause of action, I find that the above contention made by the learned counsel for the respondents 1 to 4 is liable to be rejected.

Accordingly, the Writ Petition is allowed and the first respondent is directed to consider the claim of the Petitioner for grant of approval in respect of the period from 5.1.2001 to 9.8.2002 in the light of the order passed in the case reported in (2012) 3 MLJ 678 and pass orders on the same within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.