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2009(6) Supreme 337
SUPREME COURT OF INDIA
Tarun Chatterjee and R. M. Lodha, JJ.
State of Tamil Nadu & Ors. — Appellants
versus
Amala Annai Higher Secondary School — Respondent
Civil Appeal No. 5855 of 2009
(Arising out of SLP(C) No. 21590/2008)
Decided on : 28-08-2009
Service Law – Tamil Nadu Minority Schools (Recognition and Pay of Grant) Rules, 1977 Appointment of ‘R’ by management as a Junior Assistant on 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 – Order passed by Division Bench of High Court whereby it dismissed writ appeal preferred by the appellants and affirmed the order of Single Judge directing appellant1 to sanction one post of Junior Assistant to the Respondent No. 1 – Appeal – Division Bench as well as Single Judge overlooked and ignored sub-Rule (2) of Rule 6 of the Rules, 1977 which provided that “Payment of monthly staff grant shall be made only in respect of qualified and admissible teachers actually employed in minority schools whose appointments had been approved by the concerned authorities according to the number of posts sanctioned to the institutions concerned.” – Admittedly, management of school appointed ‘R’ 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 held not worthy of acceptance – High Court erred in directing Appellant. 1 to sanction one post of Junior Assistant to the Respondent 1 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 – Appeal allowed. (Paras 11 to 16)
Facts of the Case :
Present appeal has been filed against the judgment passed by the Division Bench of 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 appellant1to sanction one post of Junior Assistant to the Respondent No. 1 from June 1, 1994.
Findings of the Court :
Evidence on record showed that management of school had already filed writ petition in 1997 praying therein that the state government and its functionaries be directed to consider their representation for the grant of one post of Junior Assistant and in furtherance thereto, state government, after hearing school, had rejected the representation. Management of the school did not challenge said decision of state government. Hence it was not open to the school to file another writ petition for the same relief- 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 could be said to have arisen. Held second writ petition by the management of the school for the same relief was nothing but an abuse of the process of court. Again High Court erred in directing Appellant. 1 to sanction one post of Junior Assistant to the Respondent 1 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. Appeal was allowed.
Result : Appeal allowed.
JUDGEMENT
R.M. Lodha, J.—
1. Leave granted.
2. 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.
3. Amala Annai Higher Secondary School (hereinafter referred to as, ‘AAHS School’) was originally a middle school. AAHS 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. While the 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 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.
4. 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.
5. 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 academic year 1991-92 and approve the appointment of the incumbent who was appointed to that post and confer all consequential benefits.
6. 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.
7. The learned Single Judge, after hearing the parties by his order dated December 4, 2006, disposed of the writ petition with the following direction :
“Taking 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.”
8. An intra court appeal was preferred by the present appellants before the Division Bench. However, as noticed above, the Division Bench by its or
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