Minority educational institutions have the right to appoint staff in sanctioned posts, and such appointments cannot be rejected without clear legal justification.

ORDER :

Battu Devanand, J.

Heard, the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents and carefully examined materials available on record.

2. The petitioner school is a recognized Aided Minority Educational Institution and it is a stand alone Institution. The petitioner school was established in the year 1934. Again it was upgraded as Higher Secondary School in the year 1978. The petitioner school had been sanctioned with single post of Lab Assistant way back in the year 1980 vide proceedings in RC.No. 6479/D1/80 dated 11.07.1980. The said post has fell vacant on 01.12.2022, due to the Voluntary Retirement of the then incumbent S.S.Mohammed Iliyas on 30.11.2022. In that vacancy, the school appointed one S.M.Omar Abdul Basith as Lab Assistant, with effect from 12.12.2022 and he continued to work in the school till date.

3. The petitioner school submitted a proposal to the third respondent through the fourth respondent on 10.02.2023 for approval of the appointment of S.M.Omar Abdul Basith as Lab Assistant with effect from 12.12.2022 and to disburse the grant-in-aid towards his salary. The said proposal was rejected by the third respondent vide proceedings in No.936/B4/2023 dated 19.05.2023. The reasons stated for rejection is that there is an instruction from the Commissioner of School Education with regard to the approval of Headmistress and PG Assistant, whereas with regard to other post there would be separate instruction and the proposal of approval of Lab Assistant cannot be considered. Thereafter, the school management submitted a detailed representation to the third respondent through the fourth respondent vide letter dated 09.08.2024 and the same was rejected by the third respondent vide proceedings in in Na.Ka.No. 4975/B4/2024 in the month of November 2024, rejected the proposal and refused to approve the appointment stating that there is a need to deploy the surplus staff and with regard to the approval of non-teaching staff their needs an instruction from the Director of School Education. Aggrieved by the said order, the present writ petition has been filed.

4. The learned Counsel for the petitioner would submit that the reason assigned by the third respondent and fourth respondent while rejecting the proposal of the petitioner school, to approve the appointment of the Lab Assistant is untenable and unconstitutional. The learned Counsel for the petitioner further submits that the school being the stand alone Educational Institution is empowered to make appointment in the sanctioned post with eligible candidate. Accordingly, the petitioner school had appointed one S.M.Omar Abdul Basith as Lab Assistant in the regular sanctioned vacancy. The Respondent No.3 ought to have not considered other incumbent had been appointed in the sanctioned regular vacancy arose due to the voluntary retirement of the previous incumbent in the post of Lab Assistant sanctioned in the year 11.07.1980.

5. The learned Counsel for the petitioner further contends that G.O.Ms.No.238 dated 13.11.2018, states that if the school had been santioned with the post of Lab Assistant prior to 1991-1992 the school is entitled for the said post and no new post would be sanctioned. The respondent Nos.3 and 4 failed to see that the school had filled up the post of Lab Assistant which had been sanctioned prior to 1991-1992 and more over the post is a single post and there is no concept of surplus in any schools. Without said post of Lab Assistant it is very difficult to maintain the Lab in the Higher Secondary School.

6. On behalf of the respondents a counter affidavit has been filed. Basing on the averments made in the said Counter Affidavit Mr.Siddharthan, the learned Additional Government Pleader would submit that originally there was ban for appointment of non-teaching staff by the State Government later it was lifted and thereafter Government issued G.O.Ms.No.115 and G.O.Ms.No.253 by imposi