High Court · 2025

W.A(MD)No.1355 of 2022BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 12.08.2025CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN andTHE HONOURABLE MR.JUSTICE K.RAJASEKARW.A(MD)No.1355 of 2022andC.M.P(MD)Nos.10647 of 2022 & 4782 of 20231.The Chief Educational Officer, Theverpuram Road, Thoothukudi – 628 002.2.The District Educational Officer, Thoothukudi – 628 102. ... Appellants / Respondents 1 & 2 Vs.1.R.Janet Shanthi, Laboratory Assistant, Caldwell Higher Secondary School, 100, Beach Road, Thoothukudi – 628 001. ... 1st Respondent / Writ Petitioner2.The Correspondent, Caldwell Higher Secondary School, Thoothukudi. ... 2nd Respondent / 3rd Respondent 1/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022Prayer: Writ Appeal filed under Clause 15 of the Letters Patent to set aside the judgment dated 23.06.2022 in W.P(MD)No.12461 of 2021 on the file of this Court.For Appellants: Mr.C.Venkatesh Kumar Special Government PleaderFor Respondents: Mr.T.Arul for Mr.S.Balamurugan for R.1JUDGMENT (By G.R.SWAMINATHAN, J.)The Education Department has filed this Writ Appeal challenging the order dated 23.06.2022 passed by the learned single Judge allowing W.P(MD)No.12461 of 2021 filed by the first respondent herein. 2.The first respondent herein was appointed as Laboratory Assistant in the second respondent school with effect from 08.07.2019. The second respondent school is an aided minority institution. The vacancy arose on account of the retirement of one Issac on 31.03.2019. Proposal was submitted by the management to the department seeking approval of the appointment. Since it was not processed, W.P(MD)No.12461 of 2021 came to be filed. The learned single Judge allowed the writ petition vide order dated 23.06.2022 in the following terms: 2/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022“5.Accordingly, there shall be a direction to the second respondent herein to forthwith pass orders, approving the appointment of the petitioner in the sanctioned post of Laboratory Assistant in the third respondent School, with effect from 08.07.2019, based on the proposal submitted by the third respondent on 02.07.2021, within a period of eight (8) weeks from the date of receipt of this order. This Writ Petition stands allowed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.”3.The question that calls for consideration is whether this direction deserves to be interfered with at the instance of the department. 4.The learned Special Government Pleader appearing for the appellants does not dispute that the writ petitioner was appointed only as against the vacancy that arose in a sanctioned post. It is seen that the school in question was sanctioned with the said post since 1964. Our attention is drawn to the order dated 10.04.2023 made in W.P(MD)No.713 of 2022 (J.Maria Thangam Vs The State represented by The Principal Secretary & Others). Paragraphs 6 to 9 of the said order read as follows: “6. The impugned order passed by the competent authority proceeds on the footing that the post in question has been render 3/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022surplus. I therefore will have to test the validity of the order only on the strength of the said ground. Clause (iii) of Paragraph No.3 G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 reads as follows:“3 (iii) Ma;tf cjtpahsh; gzpaplj;ij bghWj;jtiu 1991-92 Mk; fy;tpahz;;L Jtq;Fk; nghJ ve;bje;j cjtpbgWk; gs;spfspy; Ma;tf cjtpahsh; gzpaplq;fs; mDkjpf;fg;gl;Ls;snjh me;j gzpaplq;fs; kl;Lnk bjhlh;e;J mDkjpf;fg;gl ntz;Lk;. g[jpjhf gzpaplq;fs; vJt[k; mDkjpf;fg;glkhl;lhJ.”7. The learned counsel appearing for the petitioner relies on the aforesaid Clause. Per contra the learned Additional Government Pleader relies on Clause 9 which reads as follows:“3(ix) nkw;fhZk; ml;ltizapy; Fwpg;gplg;glhj gzpaplq;fspy; jw;nghJ gzpahsh; epakdk; bra;ag;gl;L gzpg[hpe;J te;jhy; mg;gzpahsh;fs; gzp Xa;t[, gjtp cah;t[ kw;Wk; ,wg;g[ nghd;w fhuzq;fshy; epue;jpukhff; fhyp Vw;;gLk;nghJ mg;gzpaplq;fs; jhdhfnt fhyhtjpahfptpLk;. mg;gzpaplq;fis epakdk; khWjy; kw;Wk; gjtp cah;t[ K:yk; epug;gf;TlhJ.”8. The validity of the aforesaid Government Order had been upheld by me vide order dated 07.02.2023 in W.P(MD)No.13428 of 2020 (A.Amutha Selvi Vs The State of Tamil Nadu & Others). The scheme of the said Government Order had been considered by a learned Judge of this Court vide order dated 24.02.2022 in W.P(MD)No.4783 of 2018 (I.Joselin Vs The State of Tamil Nadu & Others). Paragraph Nos.18 & 19 of the said order read as follows:4/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022“18. Then G.O. Ms. No. 238 School Education (Pa. Ka. 6 (1)) Department dated 13.11.2018 has issued, wherein the staff fixation of nonteaching staff is fixed as under: Categories ofNon-Teaching StaffStudents StrengthUntil 250From 251to 1000More than1001RemarksJuniorAssistant orAssistant orRecord ClerkNil12Maximum 2OfficeAssistant12Maximum 2Watchman1Maximum 1The salient features of the G.O. 238 are that, • Whatever be the nomenclature, the G.O. considers the Junior Assistant or Assistant or Record Clerk posts as one post.• The G.O. also states that if the above stated posts is already sanctioned to the school prior to 1991-1992, then alone the school is eligible to the said post.• The Lab Assistant post if sanctioned prior to 1991-1992 then the school is eligible and not otherwise.• The student strength ought to be calculated from the class and sections which was granted grant-in-aid prior to 1991-1992.• If there is surplus then the concerned authority shall deploy the said surplus post to the needy school within the Revenue District and 5/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022submit the surplus list to the Director to be deployed to other Districts.• If any post is surplus without person then the post shall be surrendered to the Director’s Common Pool.• The Chief Educational Officer ought to ascertain that there is nosurplus before granting any permission / approval to fill the post.• The posts not stated in the tabulation shall be filled up throughoutsourcing as stated in the G.O. Ms. No. 77 School Education(Pa.Ka.1) Department dated 13.04.2015, G.O. Ms. No. 166Municipal Administration and Water Supply Department dated23.11.2016 and G.O. Ms. No. 79 Rural Development andPanchayat Raj Department dated 14.07.2017.• If any person is working in any post, other than the posts stated inthe above tabulation, the post would lapse on the personretirement or otherwise. The school shall not appoint or transferor promote in the said lapsed post.• If the posts stated in the above tabulation fell vacant, then the saidpost ought to be filled up with the surplus staff alone.19.The comprehensive reading of all these above said GovernmentOrders are that• The school is not eligible to fill the post of Waterman, Gardener cum Sweeper and Gardener at all as per G.O. 583 from 1966 onwards. • The school is eligible to appoint the Lab Assistant if the post is sanctioned post prior to the academic year 1991-19926/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022•The posts other than the posts of Junior Assistant or Assistant or Record Clerk, Office Assistant and Watchman would lapse, if the incumbent retires or otherwise. Then the school is not eligible to fill the lapsed post at all. •The posts of Junior Assistant or Assistant or Record Clerk, Office Assistant and Watchman shall be granted as per the student strength stated in the said G.O. 238 and the maximum limit as stated in the said G.O. 238 •Any appointments prior to G.O. Ms. No. 64 shall be approved as per the said G.O. 64, but the surplus staff ought to be deployed to the needy place within the Revenue District and then the surplus staff shall be submitted to Director for further deployment to other Districts.•The G.O. 64 was issued on 03.04.2018 and the G.O. 238 was issued on 13.11.2018 and in between the said G.O. Any appointments are made, the same shall be approved. But the approval shall not be granted for the posts of Waterman, Gardener cum Sweeper and Gardener since the said posts was not granted even in G.O. 583 from 1966 onwards.•Except the posts of Junior Assistant or Assistant or Record Clerk, Office Assistant and Watchman, all other posts shall be filled up through out-sourcing and there is not grant-inaid for the said posts”9. The question that arises for consideration is whether the post of Lab Assistant should be treated to have lapsed following the retirement of the incumbent. That would be the position if 7/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022Clause 3(ix) of the Government Order is literally applied. It is true that the said Clause reads that the posts of Junior Assistant or Assistant or Record Clerk or Office Assistant or Watchman would lapse if the incumbent retires or otherwise and that the School is not eligible to fill the lapsed post at all. But then Clause 3(iii) would be rendered otiose. I therefore hold that Clause 3(ix) of the Government Order will not include the post of Lab Assistant. In fact, I had taken such a view vide order dated 20.10.2022 in W.P(MD)No.10481 of 2021 (The Secretary Vs The State of Tamil nadu & Others). G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 states that as far as the post of Lab Assistant is concerned those posts will be allowed to be continued if they had been sanctioned at the commencement of the academic year 1991-92 and fresh posts will not be permitted. If the post of Lab Assistant is to lapse following the retirement of the incumbent, then obviously there is no need for Clause 3(iii). These two Clauses will have to be reconciled. The result of such reconciliation leads me to conclude that Clause 3(ix) does not envisage within its scope the post of Lab Assistant. The impugned order proceeds only on the footing that the post has become surplus. In as much as G.O(Ms)No.238 School Education (Pa.Ka.6(1) Department dated 13.11.2018 does not come in the way of approval of the petitioner’s appointment, the order impugned in this writ petition is set aside. The respondents 1 to 4 are directed to release the salary grant to the petitioner from the date of her appointment. 8/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022This exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.”5.Even though the appointment in question was made after issuance of G.O(Ms)No.238 School Education (Pa.Ka.6(1)) Department dated 13.11.2018, the writ petitioner's appointment will not be affected by the said GO. It is relevant to note that the operation of the said GO has also been stayed by the Hon'ble Division Bench of this Court. Looked at from any angle, the order of the learned single Judge cannot be faulted. The department is directed to settle the writ petitioner's salary arrears within a period of twelve weeks from the date of receipt of a copy of this order. 6.This Writ Appeal stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. [G.R.S., J.] [K.R.S., J.] 12.08.2025 NCC: Yes / NoInternet: Yes / NoIndex : Yes / NoMGA9/10 https://www.mhc.tn.gov.in/judis W.A(MD)No.1355 of 2022G.R.SWAMINATHAN, Jand K.RAJASEKAR, J.MGAToThe Correspondent,Caldwell Higher Secondary School,Thoothukudi.W.A(MD)No.1355 of 202212.08.202510/10