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2025 Supreme(Online)(Mad) 8219
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr Justice M.DHANDAPANI
SR.S.ANITHA ANTHONIAMMAL – Appellant
Versus
THE GOVERNMENT OF TAMIL NADU – Respondent
W.P.No.4630 of 2024 | W.M.P.No.4629 of 2024
For the Appellants/Petitioners: Father Xavier Arulraj
For the Respondents: S. Mythereye Chandru
A government order declared inoperative by a court cannot form the basis for rejecting a teacher's appointment approval, and a subsequent counter affidavit cannot raise new grounds not mentioned in the impugned order.
Headnote:(A) Constitution of India - Article 226 - Writ of Certiorarified Mandamus - Approval of appointment - Rejection of appointment proposal of B.T. Assistant (Maths) in minority aided school - Impugned order based on G.O.Ms.No.165 dated 17.09.2019 which was declared inoperative by Division Bench of High Court - Counter affidavit filed by respondent raising new ground of non‑clearance of TET examination not mentioned in impugned order - Counter affidavit vague - Since G.O. inoperative and no surplus teachers available, rejection unjustifiable - Direction to grant approval within 12 weeks. (Paras 8‑12)
Facts of the case:
The petitioner was appointed as B.T. Assistant (Maths) in a minority aided school. The school sent a proposal to the educational authority for approval. The authority rejected the proposal relying on G.O.Ms.No.165 which prohibited new appointments until surplus posts in corporate management are deployed. The school responded that no surplus post was available. The petitioner has been working without salary since 2019.
Issues: (i) Whether the impugned order rejecting appointment approval based on a Government Order that was later held inoperative by a Division Bench of the High Court is sustainable? (ii) Whether the respondent can raise a new ground in the counter affidavit (non‑clearance of TET examination) which was not mentioned in the impugned order?
Findings of Court:
The G.O.Ms.No.165 was declared inoperative by a Division Bench of the High Court. The respondent’s counter affidavit was vague and did not address the inoperative nature of the G.O. The ground of TET examination was not part of the impugned order and cannot be used to justify the rejection. The petitioner’s appointment was made in 2019 and the proposal was sent in June 2019. The impugned order is unjustifiable.
Ratio Decidendi: A decision based on an inoperative Government Order cannot be sustained. Administrative authorities cannot rely on new grounds not mentioned in the impugned order to justify their action in subsequent pleadings. The academic interest of students and the fact that the petitioner has been working without salary weigh in favor of granting approval.
Result: Writ Petition allowed. Impugned order dated 01.12.2020 quashed. Respondent directed to grant approval to the appointment of the petitioner as B.T. Assistant within 12 weeks. No costs.
ORDER
Aggrieved by the order of the third respondent dated 01.12.2020, wherein, the recommendation made by the fifth respondent School for appointing the petitioner as B.T.Assistant (Maths) was rejected, the present writ petition has been filed.
2. The brief facts are that the fifth respondent Higher Secondary School is a minority institution and its expenses are funded by the Government. The petitioner was appointed as B.T.Assistant (Maths) and a proposal was sent by the fifth respondent School to the third respondent for approval of the same. However, the third respondent returned the request of the fifth respondent raising certain defects. Thereafter, the third respondent requested the fifth respondent School to fill up the vacancies for surplus post before making any new appointment. The fifth respondent School responded to the third respondent by stating that no surplus post is available as on date and therefore, the appointment of the petitioner must be approved. The third respondent, however, refused to grant approval for appointment of the petitioner on the ground that till all the surplus posts in the corporate management are deployed, no new appointments will be made. Challenging the said order, the present writ petition has been filed.
3. The third respondent has filed a counter affidavit. The counter affidavit is as vague as it could be.
4. Instead of meeting the averments raised in the writ petition, the third respondent has taken a ground that since the petitioner has not passed TET examination, her appointment cannot be approved, whereas, the impugned order was quoted the Government Order in G.O.Ms.No.165, School Education (Tho.Ka.2(1)) Department dated 17.09.2019. In the entire counter affidavit, there is no mention made of this Government order. Since the counter affidavit is filed supporting the action of the respondents in passing the impugned order, every effort ought to have been taken to justify that the Government order mentioned above is applicable to the case of the writ petitioner.
5. The learned counsel appearing for the petitioner submits that the Government Order quoted in the impugned order was already held inoperative by the Hon’ble Division Bench of this Court in the case of Secretary to Government and others vs. Iruthaya Amail and another reported in 2021 SCC MAD 1205. The learned counsel further submits that the respondents are taking a strange stand now in the counter affidavit about the clearance of TET Examination. He further submits that no doubt, as per the directions of the Hon’ble Supreme Court, every teacher should clear the TET Examination. Since the petitioner is working from 2019 and a proposal was even made in the year 2019, the appointment of the petitioner should be approved first and only then, the question of TET Examination would raise.
6. The learned Special Government Pleader appearing for the respondents raised the same contentions in the counter affidavit.
7. This Court heard the learned counsels appearing on both sides and perused the materials available on record.
8. The Government Order in G.O.Ms.No.165, School Education (Tho.Ka.2(1)) Department dated 17.09.2019, was held inoperative by the Hon’ble Division Bench of this Court and the relevant paragraphs are extracted hereunder:-
“130. Validity of G.O.Ms.No.165, School Education [Tho.Ka.2(1)] Department, dated 17.09.2019.
131. As we discussed in the earlier part of this order, as a fall out of the interim order passed by a Division Bench of this Court in this batch of cases by order, dated 09.04.2019, the Government thought of issuing a Government Order, that is how G.O.Ms.No.165 has been issued, where, various conditions have been imposed with regard to the staff fixation, identification of the excess staff and redeployment of such excess staff to the needy schools.
132. In fact, a prohibition has been imposed under the said G.O. that unless and until the total teaching staff which are found to be excess, as has been identified
