Tamil Nadu & Ors. Vs. Amala Annai Higher Sec.School  INSC 1509 (28
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5855 OF
2009 (Arising out of SLP(C) No. 21590/2008) State of Tamil Nadu & Ors.
...Appellants Versus Amala Annai Higher Secondary School ...Respondent
JUDGEMENT R.M. Lodha, J.
The State of Tamil Nadu and its functionaries have preferred this
appeal by special leave against the judgment dated March 18, 2008 passed by the
Division Bench of Madras High Court whereby it dismissed writ appeal preferred
by the appellants and affirmed the order dated December 4, 2006 of the Single
Judge directing the 1st appellant herein to sanction one post of Junior
Assistant to the Respondent No. 1 from June 1, 1994.
Amala Annai Higher Secondary School (hereinafter referred to as,
`AAHS School') was originally a middle school.
School was upgraded as high school from academic year 1988-89 w.e.f. June 13,
1988. All the posts of the middle school were absorbed in the high school. At
the time of upgradation of the school from middle school to high school, the
strength of students was less than 300. One Ms. Rosary was appointed by the
management as a Junior Assistant on the very same day the school was upgraded
from middle school to high school without getting approval from the Competent
Authority. The management of the school then made a request to the Competent
Authority for sanction of one post of Junior Assistant which was not acceded
to. The said request was renewed from 1991-1992 onwards but without any
favourable response from the appellants. The management then made a
representation to the state government on January 20, 1997.
said representation was under consideration before the state government, the
management of the school filed a writ petition (W.P.No.4536/1997) before the
High Court of Judicature at Madras. That writ petition was disposed of by the 2
Single Judge on October 15, 1997 directing the present appellants to consider
the representation dated January 20, 1997 and pass final order on the same
after hearing the management of the school.
In terms of the order dated October 15, 1997, the state government
considered the representation made by the school and rejected the same vide
communication dated July 3, 1998 indicating therein that, as per the norms
issued in G.O.Ms. No. 340/Education dated April 1, 1992, the strength of school
during 1990-91 was below 300 and, therefore, there is no compulsion under the
said G.O.M. to give non-teaching staff as and when school raises the strength.
The aforesaid communication dated July 3, 1998 was not challenged
by the school, although further representations were made. After about seven
years, the management of the school filed another writ petition before the High
Court of Judicature at Madras, Madurai Bench, Madurai, praying for a direction
to the government of Tamil Nadu to sanction one post of Junior Assistant to the
school from the 3 academic year 1991-92 and approve the appointment of the
incumbent who was appointed to that post and confer all consequential benefits.
The state government and its functionaries stoutly opposed the
writ petition and, inter alia, set up the defence that at the relevant time,
the strength of school was below 300 and, therefore, the school was not
entitled to any post of Junior Assistant.
The learned Single Judge, after hearing the parties by his order
dated December 4, 2006, disposed of the writ petition with the following
note of the said fact which is undisputed, the 1st respondent is directed to
sanction one post of Junior Assistant to the petitioner school in terms of
G.O.Ms. No. 245 Education Department dated 21.02.1970 from 01.06.1994. Necessary
orders shall be passed by the 1st respondent taking note of the recommendation
made by the 4th respondent dated 12.10.1994 and also in terms of G.O.Ms. No.
245 dated 21.02.1970 within a period of eight weeks from the date of receipt of
a copy of this order on sanction given to the appointment of the said Rosary as
Junior Assistant shall be approved."
An intra court appeal was preferred by the present appellants
before the Division Bench. However, as noticed 4 above, the Division Bench by
its order dated December 18, 2008 dismissed the appeal and maintained the order
of the Single Judge.
We heard Mr. E. Padmanabhan, learned Senior Counsel for the
appellants and Mr. C. Selvaraju, learned Senior Counsel for the school and
considered the relevant provisions of Tamil Nadu Minority Schools (Recognition
and Pay of Grant) Rules, 1977 (hereinafter referred to as `Rules, 1977') and
various G.O.Ms., particularly, G.O. (4D) No. 4, dated November 23, 1991;
G.O.Ms. No. 340, dated April 1, 1992 and G.O.Ms. No. 50, dated January 20,
In our view, the judgment of the Division Bench affirming the
order of the Single Judge cannot be sustained for more than one reason. In the
first place, the management of the school had already filed writ petition in
1997 praying therein that the state government and its functionaries be
directed to consider their representation dated January 20, 1997 for the grant
of one post of Junior Assistant and in furtherance thereto, 5 the state
government, after hearing the school, rejected the representation on July 3,
1998 indicating the following reasons :
the time of sanction of posts G.O. Ms. No. 50 Education dated 20-1-95 as per
the norms issued in G.O.Ms. No. 340 Education Dated 1-4-92 the strength of your
school during 1990-91 was below 300. The orders in G.O.Ms. No. 340 are clear.
It says that there is no compulsion to give non- teaching staff as and when the
school increases the strength. Therefore your request for sanction of one post
of Junior Assistant is not feasible of compliance."
management of the school did not challenge the aforesaid decision of the state
government and, therefore, it was not open to the school to file another writ
petition for the same relief, i.e., for direction to the state government to
sanction one post of Junior Assistant to the school from the academic year
1991-92. The controversy stood concluded in the earlier round of litigation and
the decision of the state government dated July 3, 1998 having not been
challenged, the second writ petition could not have been entertained by the
High Court. Merely because, few subsequent representations were made by the
management to the state government reiterating the request for sanction of post
of Junior Assistant, no new cause of action for filing second writ petition can
be said to have arisen. In the facts and circumstances of the case, 6 second
writ petition by the management of the school for the same relief is nothing
but an abuse of the process of the court.
Secondly, insofar as G.O.Ms. No. 340, dated April 1, 1992 is
concerned, it is not attracted at all. G.O.Ms. No. 340 dated April 1, 1992,
issued by the Education Department mentions, "Accordingly, the following
staffing pattern, was recommended by the Committee for deciding the eligibility
for post for the schools in question (opened in 1987-88 and earlier) -."
Thus, G.O.Ms. No. 340 dated April 1, 1992 containing norms for sanction of
posts is applicable for the high schools opened in 1987-88 and earlier. In the
present case, the school was upgraded to high school in 1988-89.
Thirdly, the Division Bench as well as the Single Judge overlooked
and ignored sub-Rule (2) of Rule 6 of the Rules, 1977 which reads :
"Payment of monthly staff grant shall be made only in respect of qualified
and admissible teachers actually employed in minority schools whose
appointments have been approved by the concerned authorities according to the
number of posts sanctioned to the institutions concerned."
Admittedly, in the present case, the management of the school appointed Ms.
Rosary as Junior Assistant to a non-sanctioned post. The explanation of the
management that she was appointed in anticipation of orders from the Competent
Authority hardly merits acceptance.
Fourthly, as per the norms issued in relevant G.O.Ms., the
strength of the school during 1990-91 ought to be 300 and above while the
students' strength of the school during 1990-91 was only 281. As a matter of
fact, it is not even the case of the management that during 1990-91, the student
strength was 300 or more. The student strength during 1993- 94 and subsequent
years has no relevance. It is here that High Court fell into a grave error
because what was important under the relevant G.O.Ms. was that student strength
must have been 300 or more during the years 1988-89, 1989-90 and 1990-91.
Fifthly, the reliance placed by the High Court on G.O.Ms.
245/Education, dated February 21, 1970 is misplaced inasmuch as the said G.O.
applied to clerks who were already 8 employed in and around the year 1964 and
has no application to a junior assistant appointed to a non-sanctioned post in
Last but not the least, the High Court erred in directing the
present Appellant No. 1 to sanction one post of Junior Assistant to the
Respondent No. 1 - AAHS School from June 1, 1994 overlooking and ignoring that
creation and sanction of posts is the prerogative of the executive and the
courts cannot arrogate to themselves a purely executive power.
The appeal must, accordingly, succeed and is allowed with no order
as to costs.