Madras High Court Refuses Review And Upholds Its Order Granting Salary Since The Date Of Initial Appointment.

The Division Bench comprising Hon’ble Mr. Justice G.R. Swaminathan and Hon’ble Mrs. Justice R. Tharani of Hon’ble Madras High Court at Madurai Bench refused to admit a review and interfere with the findings of the writ court, where the Hon’ble court directed the respondents to consider the petitioner as appointed from the date of his initial appointment and not from the date of confirmation. The Division Bench while refusing to entertain the Review application observed that that the managements can fill up vacancies in teaching posts only after getting prior permission from the department and also directed the department to consider the approval within 10 weeks of its presentation.

BRIEF FACTS OF THE CASE

Following the retirement of one M.Manimehalai on 21.06.2013, one post of Secondary Grade Teacher fell vacant in the said school. The management appointed Jesu Praba as B.T. Assistant on 09.06.2014. The school management submitted proposal to the District Education Officer, Tuticorin, seeking approval of her appointment. The school management gave an undertaking that no salary will be claimed until the conversion of the post of secondary grade teacher as B.T.Assistant (Tamil). Approval was given on 22.12.2017. The appointee was paid salary arrears with effect from the said date. Contending that her appointment must be recognized with effect from 09.06.2014, W.P. (MD)No.3601 of 2019 came to be filed.

Vide order dated 06.03.2019, the writ petition was allowed. Questioning the same, the State filed W.A.(MD)No.1115 of 2019. The Hon’ble Division Bench dismissed the appeal vide Order dated 12.11.2019. Seeking review of the same, the present review application has been filed.

CONTENTION OF STATE

The learned Special Government Pleader reiterated all the contentions set out in the memorandum of grounds and called upon this Court to review the order dated 12.11.2019 dismissing the writ appeal and called upon this Court to dismiss the writ petition itself.

CONTENTION OF PETITIONER

Per contra, the learned counsel appearing for the appointee contended that the position is too well settled and that the order under review does not suffer from an error on the face of record and hence the review application deserves summary dismissal.

HON’BLE COURT’s OBSERVATIONS

Hon’ble Division Bench held that the competent authority had permitted conversion of the post of Secondary Grade teacher to that of B.T.Assistant (Tamil), it would relate back to the date of the candidate’s appointment. The learned Single Judge as well as the Hon’ble Division.

However, instead of dismissing the review summarily Hon’ble Court observed that :-

“The primary argument of the learned counsel appearing for the appointee is that the managements of minority schools have the fundamental right under Article 30 of the Constitution of India to make appointments without getting prior permission from the department. Her contention is that though the State is the pay master, the principle “ he who pays the piper calls the tune ” will not apply.

The minority schools have so far been successful in exempting themselves from the purview of the Right of Children to Free and Compulsory Education Act 2009. Their teachers need not be TET-qualified. The requirement that appointments have to be made as per communal roster to achieve social justice does not apply to minority institutions. Though grant-in-aid comes out of public exchequer, appointments are often made as per the seniority list maintained by the respective dioceses.

Petitions have been filed by aggrieved individuals contending that their local church has breached the seniority principle. It is a fact that the dioceses have been maintaining registers akin to the district employment exchanges. In other words, the managements need not invite eligible and meritorious candidates from the open market. Even a cursory survey would reveal that these appointees are invariably from the same religion or even denomination. Of course, Article 30 of the Constitution of India will be projected as a shield. However, certain developments have recently taken place.

The department is faced with the issue of surplus teachers and their deployment. Corporate managements make appointments if a vacancy arises in a sanctioned post in one school, even if they have surplus teachers in the other schools. This issue is presently pending before the Hon’ble Supreme Court and interim orders have been granted. We, therefore, hold that the managements can fill up vacancies in teaching posts only after getting prior permission from the department. At the same time, we are conscious that the department often keep such proposals pending for an unreasonably long period. Since the Government itself is a party to this petition, we direct the department to pass order on any proposal that may be submitted by the managements within a period of ten weeks from the date of receipt of the proposals. Speaking order should be passed by the competent authority.”

Case title :- The State of Tamil Nadu & ors Vs. Jesu Praba & another

Case no. :- REV.APLC(MD)No.136 of 2022

Order date :- 06.06.2023