M. David Durai vs The State of Tamilnadu

T. Raja, J.—The petitioner/M.David Durai has filed the present writ petition seeking issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the proceedings in O.Mu.No.3176/A4/2013 dated 11.10.2013 on the file of the District Educational Officer, Tirunelveli, 3rd respondent herein, quash the same and consequently direct the respondents to approve the appointment of the petitioner as Office Assistant in the 4th respondent school with all the service benefits.

Heard both sides.

Learned counsel for the petitioner submitted that the petitioner was appointed as Office Assistant in the 4th respondent school in the time scale of pay of Rs.4800-10000 + Grade pay of Rs.1300/- with usual allowances. He joined duty on 31.07.2009. When proposals were submitted by the 4th respondent to the 3rd respondent, for approval of the appointment of the petitioner as Office Assistant, the 3rd respondent, by the impugned order dated 11.10.2013, has returned the same on the ground that prior permission was not obtained for appointment of the petitioner. Challenging the said order, the petitioner has filed the present writ petition.

Taking support from a judgment reported in 2012 (5) MLJ 670 in the case of Dr.S.Sukumaran vs. State of Tamil Nadu, Mr.S.Siva Thilakar, learned counsel for the petitioner submitted before this Court that the issue involved in this writ petition is squarely covered by the abovesaid decision, wherein, it has been held that for making appointment in a sanctioned post in a minority institution, there is no necessity to get prior permission from the Education Department.

At this juncture, it is pertinent to extract paragraph 9 of the judgment in Dr.S.Sukumaran''s case (cited supra).

"9. The point arises for consideration in this writ petition is as to whether the petitioner is entitled to get his appointment approved from the second respondent as he is appointed in a sanctioned post in the fourth respondent aided minority college, in a retirement vacancy. The retirement vacancy arose on 31.05.2008. the fact about the availability of the post in the fourth respondent college as per the staff fixation order is not in dispute and the same is also not the contention raised by the second respondent in the reply to the RTI query. 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 5.3.2012 also, same view is taken."

A perusal of the above judgment shows that the said judgment is squarely applicable to facts of the present case. When the 4th respondent school being a minority school, has appointed the petitioner in a sanctioned post, there is no necessity to get prior permission from the 1st respondent for approval of the appointment of the petitioner.

In view of the above, the impugned order dated 11.10.2013 is set aside and the Correspondent of the 4th respondent school is hereby directed to resubmit the proposal seeking approval of the appointment of the petitioner, to the 3rd respondent, who on receipt of the same, shall pass appropriate order, approving the appointment of the petitioner as Office Assistant in the 4th respondent college with effect from 31.07.2009 and pay salary and other service and monetary benefits from the said date. The 3rd respondent shall pass appropriate orders, approving the appointment of the petitioner within a period of two months from the date of receipt of a copy of this order. The writ petition is allowed accordingly. Consequently, connected miscellaneous petition is closed. No costs.