Muthu Merina vs The Director of Elementary School Education & Ors.

The impugned order has been passed by the third respondent declining to approve the appointment of the petitioner, on the ground that when

there are excess teachers available in the school Management; they could be redeployed to the needy schools, instead of resorting to fresh

appointment. This order is under challenge in the present Writ Petition.

The petitioner was appointed as Secondary Grade Teacher in the 4th respondent school and when proposal was submitted by the 4th

respondent, the same was returned by the respondents 2 and 3 on the ground that there are surplus teachers in other schools run by the same

Management and that approval for new appointment will be granted, only after adjusting the surplus posts. The justifiability of the above-said

order, is under challenge in the present Writ Petition.

The learned counsel for the petitioner would submit that the issue raised in this case, is squarely covered by a Division Bench judgment in

Director of Elementary Education, Chennai and two others vs. B.Infanse and another (W.A(MD)Nos.639 of 2015 etc., dated 17.06.2015) and

which in turn, is based upon a Full Bench judgment of this Court. Before the Full Bench, G.O.Ms.No.525 School Education (D1) Department

dated 29.12.1997 was challenged and the Full Bench has interpreted the said G.O, which has been considered in the above-said Division Bench

judgement. It is relevant to extract below paragraphs 5, 6 and 8, of the Division Bench judgment:-

''''5.Indisputably, the posts, in which, the writ petitioners have been appointed, are sanctioned by the Education Department, after assessment, in

terms of G.O.Ms.No.525, School Education(D1) Department, dated 29.12.1997. Eligibility of the writ petitioners, is not disputed. Dates of

appointment of the teachers, is also not disputed. Earlier, when the request of the teachers working in TDTA Primary and Middle Schools,

Puliangudi, Tirunelveli District, for approval, was denied, on the ground that they were redeployed by the District Elementary Educational Officer,

Tirunelveli, Writ Petitions have been filed. Vide common order in W.P.No.10352, 10350 and 10351 of 2006, dated 08.12.2006, they were

allowed. The District Elementary Educational Officer, Tirunelveli, has filed Writ Appeals as against the common order dated 08.12.2006 and that

the same were dismissed, by separate orders in W.A(MD)No.205 of 2007 dated 09.06.2007, W.A(MD)No.194 of 2007 dated 09.06.2007 and

W.A(MD)No.292 of 2007 dated 02.08.2007, respectively. As the orders made in the abovesaid Writ Appeals are similar in nature, suffice to

extract one such order, which is as follows:-

Order made in W.A(MD)No.205 of 2007 dated 09.06.2007

''''This writ appeal is filed against the order dated 08.12.2006 made in W.P.Nos.10350 to 10352 of 2006, wherein the relief of issuance of a writ

of Certiorarified Mandamus calling for the records pertaining to the order passed by the District Elementary Educational Officer, Tirunelveli in

passing redeployment order by construing that there are certain excess teachers with reference to G.O.Ms.No.525 School Education (D1)

Department dated 29.12.1997. The said G.O. was the subject matter of the Full Bench decision in the case of Director of Elementary Education v.

S.Vigila reported in [2006(5) CTC 385], wherein it was held as follows:.

Keeping in view the various relevant aspects, we feel that G.O.Ms.No.525 dated 29.12.1997 should be interpreted in the following manner:

(1) The ratio of students-teacher strength as indicated in the G.O. should be primarily considered by taking each individual standard/section as a

unit.

(2) The minimum strength of teachers required obviously should not fall below the number of Standards/Section in a school. In other words, if

there are five standards, obviously the minimum number of teachers should be five, out of which one would be the Headmaster.

(3) If the students'' strength in a particular Standard exceeds 60, at that stage, an additional section is required to be created requiring the sanction

of a second teacher and the strength reaches 100, the post of a third teacher is required.

(4) Even after maintaining the aforesaid ratio by taking into account the students'' strength of each individual standard and additional section, as the

case may be, by keeping in view the teacher-students ratio 1:40 of the entire school if the teachers strength is required to be increased, the same

has to be allowed, but in no case, the teachers'' strength should be less than the number of standards including the additional sections. If more

teachers are thus sanctioned keeping in view the over all strength of the school, the authorities of the school should create additional section in

respect of any particular Standard according to the need and convenience keeping in view the standard of education. This requirement is not only

in respect of Aided Schools or Government Schools, but also in respect of any Private Recognised School. In other words, this ratio is to be

maintained for any school which requires recognition.

(5) It would be obviously open to the Government to formulate appropriate norms in consonance with the above observation and provisions of the

Constitution."" That Full Bench decision has been followed by the learned Single Judge, incidentally, who was also a party to the Full Bench and the

redeployment order has been set aside. In the above stated factual matrix of the issue, when the law is settled by the Full Bench, we are of the

view that filing of an appeal by the Authority is nothing but an exercise in futility. Hence this Writ Appeal is dismissed. Consequently, connected

M.P.No.3 of 2007 is also dismissed. No costs.

6.As stated supra, inasmuch as appointments of the writ petitioners were made against sanctioned posts in the respective schools, observations

made in the W.A.No.70 of 2012 dated 13.03.2012, granting permission to the District Elementary Educational Officer, Tirunelveli, to take steps,

to deploy excess teachers, from the schools under the same management, cannot be a ground, to deny approval of appointments of the writ

petitioners, as Secondary Grade Teachers in the schools, in which, they were appointed. When the school management sends a proposal for

approval of the teachers, the educational authorities have to consider, as to whether such teachers have been appointed against sanctioned posts

and whether they are qualified for such appointment. Rule of reservation wherever applied is also verified. On the above aspects, there is

absolutely no quarrel by the educational authorities.

8.It is now more than four years, since the observations were made in W.A(MD)No.70 of 2012 dated 13.03.2012. It is also be noted that every

year as per G.O.MS.NA.525, School Education(D1) Department, dated 29.12.1997, staff fixation is done, in each school, by educational

authorities, on the basis of teacher-pupil ratio. No materials have been placed before this Court, as to the staff fixation done in the subsequent

years, from 2012 onwards, in the schools, in which, surplus was noticed. If the existence of surplus staff continued in the subsequent years, the

department ought to have taken action only, as against the said schools and redeployment could have been done then and there. But from the

submission of the learned Special Government Pleader, it is evident that no steps were taken, for all these four years. If in the subsequent years,

staff fixation in the schools, in which excess was noticed, had already been approved, then the educational authorities are bound by such orders.''''

The learned counsel for the petitioner would vehemently contend that there are no excess teachers in any one of the schools under the same

Management, for the purpose of being redeployed to the needy schools and therefore, the impugned order passed by the 3rd respondent is liable

to be set aside. It is also submitted that even assuming that there are excess teachers, that cannot be a ground for declining approval of the

appointment and that is the settled law as per the decision cited supra. There is no dispute with regard to this legal position. Hence, the claim of the

petitioner is in accordance with law.

In the result, this Writ Petition is allowed. The impugned order passed by the third respondent in Athi.Mu.No. 1752/A4/2016, dated

13.10.2016 stands quashed. The 3rd respondent is directed to consider the proposal sent by the 4th respondent school, seeking to approve the

appointment of the petitioner as Secondary Grade Teacher, in the light of the Division Bench Judgment in W.A(MD)Nos.639 of 2015 etc., dated

17.06.2015 and to pass order of approval, within a period of two months from the date of receipt of a copy of this order. No costs.

Consequently, connected Miscellaneous Petition is closed. No costs.