(Prayer: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarfied Mandamus, calling for the entire records connected with the impugned order passed by the second respondent, vide O.Mu.No.5988/A3/2019 dated Nil.12.2020 signed on 11.12.2020 and consequently order of the third respondent passed in O.Mu.No. 1001/Aa1/2019 dated Nil.12.2020, signed on 24.12.2020 and quash the same and consequently direct the respondents to approve the appointment of Tmt.P.Banu Priya, as Secondary Grade Teacher in the petitioner School w.e.f. 23.11.2020 with all consequential monetary benefits.)

1. The present writ petition had been filed challenging the order passed by the second respondent on 11.12.2020 wherein the proposal of the petitioner management to grant prior permission to fill up the post of Secondary Grade Teacher has been rejected. The petitioner management has further prayed for a mandamus to approve the appointment of Tmt.P.Banu Priya as a Secondary Grade Teacher in the petitioner school with effect from 23.11.2020 with all consequential monetary benefits.

(A).Factual Matrix:

2. The petitioner school is a Non-minority Aided Institution. A Secondary Grade Teacher Tmt.Mariya Floris had attained superannuation on 31.05.2016. The school management has addressed a communication on 31.08.2016 seeking prior permission of the authorities to fill up the said post. Two further reminders were sent on 06.07.2017 and 05.12.2018. However, there was no response from the authorities. Another Secondary Grade Teacher, Tmt.Rama had attained superannuation on 31.05.2019. According to the petitioner management, they have sent communications on 12.07.2019 and 05.09.2019 seeking prior permission to fill up the said post. The third respondent herein had recommended on 12.07.2019 for the said post. However, the second respondent has not passed any order.

3. In the meantime, the educational authorities have deputed a B.T.Assistant Teacher from another School to the Secondary Grade Teacher vacancy of the petitioner school on 06.01.2020 for a period of 20 days from 07.01.2020 to 27.01.2020. A further order was passed on 02.11.2020 deputing the same teacher to the petitioner school for the academic year 2020-2021. However, it is alleged that the said teacher has not joined the petitioner management.

4. The petitioner management has appointed one Tmt.P.Banu Priya as a Secondary Grade Teacher on 21.11.2020. She had joined on 23.11.2020. According to the petitioner management, they have submitted a proposal for appointment to the third respondent on 17.12.2020 and it was received by him on 18.12.2020. When the proposal for approval of the appointment of Tmt.P.Banu Priya was pending, the second respondent has passed the impugned order on 11.12.2020 rejecting the request of the petitioner management for granting prior permission to fill up the post of Secondary Grade Teacher. A consequential communication was addressed by third respondent on 24.12.2020 and the same was served upon the management on 19.01.2021.

5. In the present writ petition, the petitioner management has challenged the order of the second respondent dated 11.12.2020 and a consequential communication of the third respondent dated 24.12.2020 with a prayer to approve the appointment of Tmt.P.Banu Priya with effect from 23.11.2020.

(B).Submissions of the learned counsel appearing on either side

6. According to the learned counsel for the writ petitioner, the petitioner management has addressed a communication for seeking prior permission even when a first vacancy arose on 31.05.2016. The communications were addressed on 31.08.2016, 06.07.2017 and 05.07.2018 respectively. However, there was no response from the authorities.

7. The learned counsel had relied upon a decision of this Court and contended that when prior permission application has been made and the same is not answered by the authorities, it should be deemed that prior permission has been granted. As an alternative submission, he contended that for filling up a sanctioned post, prior permission from the authorities is not at all required.

8. The learned counsel appearing for the petitioner had further submitted that when a second vacancy arose in the year 2019, again communications were addressed to the authorities on 12.07.2019 and 05.09.2019 seeking their prior permission. In fact, the third respondent has recommended for the same on 12.07.2019. However, without considering the said recommendation, the order of deputation was passed by the second respondent. Since the B.T.Assistant Teacher was deputed to the petitioner school in the Secondary Grade Teacher vacancy, she has not joined the school either by an order dated 06.01.2020 or under an order dated 02.11.2020. Therefore, it is clear that there is no surplus teacher to the petitioner school and a teacher could be appointed to the vacancy post. Only one Headmaster is available and both Secondary Grade Teacher posts are vacant.

9. The learned counsel for the petitioner had further submitted that a list was called for from the employment exchange. An advertisement was made in the newspaper and only thereafter, Tmt.P.Banu Priya was appointed as a Secondary Grade Teacher on 21.11.2020 and joined the said post on 23.11.2020. Even though they have sent a proposal to the third respondent on 18.12.2020, the same was misplaced and enquiry was ordered. According to the petitioner, it was found that the original certificates of Tmt.P.Banu Priya have been misplaced in the office of the third respondent. Therefore, when the proposal for approval of the appointment was pending, the second respondent was not right in passing the present impugned order on 11.12.2020 rejecting the prior permission application.

10. The learned counsel for the petitioner had further submitted that the order of the second respondent dated 11.12.2020 had reached the management only on 19.01.2021. The learned counsel had further stated that the petitioner management has been waiting for prior approval from the year 2016 onwards. The authorities have neither accepted nor rejected the same. Therefore, after waiting for a period of four years, the said Tmt.P.Banu Priya was appointed. He also relied upon a decision to impress upon the Court that when the authorities have not passed any order on the prior permission application for so many years, the management has no other option than to appoint the teacher in the interest of the students.

11. The learned counsel for the petitioner had further submitted that the order impugned in the writ petition has been passed by the second respondent solely relying upon G.O.Ms.No.165, School Education Department dated 17.09.2019. The said Government Order has already been struck down by this Court. Therefore, this Government Order cannot be invoked by the authorities for rejecting the request of the writ petitioner management.

12. According to the learned counsel for the petitioner, when the post is a sanctioned post and it is reflected in the staff fixation order for the academic year 2020-2021, the authorities have no other discretion than to approve the appointment of Tmt.P.Banu Priya. Hence, he prayed for allowing the writ petition.

13. Per contra, the learned Additional Government Pleader appearing for the respondents submitted that the petitioner management is an non-minority institution. Therefore, obtaining prior permission to fill up the vacancy is mandated ever as per Rule 15(4) Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974. He relied upon the decisions of this Court reported in (2009) 5 MLJ 1000 ( S.Pandara Vadivu Vs.Director of Elementary Education, College Road, Chennai and others); 2017 (2) CWC 521 ( Chief Educational Officer, Theni District Vs. Nadar Saraswathi Higher Secondary School, Theni District) and 2016 (1) CWC 481 (DB) (Chief Educational Officer, Kanyakumari District Vs.S.Christy) to impress upon the Court that even for filling up the vacancy arising out of a sanctioned post, the prior permission is mandatory in respect of Non-minority Institution.

14. The learned Additional Government Pleader appearing for the respondents had further submitted that the appointment of Tmt.P.Banu Priya on 21.11.2020 has been made when prior permission has not yet been granted. Therefore, the appointment order cannot be approved. He further submitted that there are no records to establish that the office of the third respondent had received proposal from the management with regard to the approval of the appointment of Tmt.P.Banu Priya on 18.12.2020. Relying upon the various communications among the educational authorities he contended that there is no proof of receipt of original certificates of Tmt.P.Banu Priya by the office of the third respondent.

15. The learned Additional Government Pleader had further submitted that when prior permission is mandated under the Act, without seeking prior permission, her appointment cannot be approved which is clearly in violation of the statutory provisions. He had further submitted that one Prema Vimala Mary was deputed to the petitioner school by way of proceedings dated 06.1.2020 and 02.11.2020 and she has also joined the petitioner school. Only thereafter, she was deputed to Panchayat Union School. Therefore, the contention of the petitioner that the said teacher had not joined the petitioner school is not factually correct.

16. I have considered the submissions made on either side and perused the material records.

(C).Discussion:

17. The issue that arises for consideration is whether prior permission from the educational authorities is required to fill up the vacancy in a sanctioned post.?

18. The issue is no longer res integra. A learned Single Judge of this Court in a judgment reported in (2009) 5 MLJ 1000 ( S.Pandara Vadivu Vs.Director of Elementary Education, College Road, Chennai and others) relying upon Rule 15(4) of Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974, has categorically held in Paragraph No.14 as follows:

               “14.The second respondent has not granted any prior approval to fill up the post of Headmaster of the third respondent school, which is admittedly required under the above said statutory provision, viz., Rule 15(4). The School Committee took a decision to go for direct recruitment to fill up the post of Headmaster. The said fact having not been disputed, the appointment of the petitioner by the third respondent School is to be treated as invalid and illegal and the said order will not confer any right to the petitioner. “

19. The Hon'ble Division Bench of this Court in a judgment reported in 2016 (1) CWC 481 (DB) (Chief Educational Officer, Kanyakumari District Vs.S.Christy) in Paragraph No.9 has held as follows:

               “9.But, the ultimate conclusion reached by the learned Judge to direct approval to be granted to the appointment of the 1st respondent cannot be interfered with, for a different reason. The School in question is a minority educational institution. As can be seen from the very Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, relied upon by the appellants, it has no application to minority schools. Therefore, despite the fact that the reasoning contained in the order of the learned Judge is not correct, the conclusion arrived by him is in accordance with law. Therefore, after pointing out that Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 stands on a different footing from Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 and that prior permission is necessary in terms of Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, atleast for non- minority institutions, the writ appeal is liable to be dismissed. However, we wish to clarify that even minority institutions will have to take post- facto approval and that any appointment even in minority institutions would depend only upon the fixation of staff strength by the Educational Authorities.”

20. Another Division Bench judgment of our High Court reported in 2017 (2) CWC 521 (Chief Educational Officer, Theni District Vs. Nadar Saraswathi Higher Secondary School, Theni District) in Paragraph Nos.7 and 13 has held as follows:

               “7.Keeping the submissions made on either side, we have carefully gone through the entire materials available on record. In view of the submissions made on either side, the only question that has to be decided in this case is whether the prior permission of the appellants is necessary for filling up the sanctioned vacancy?

               13.As observed earlier, the respondent school is a non minority institution. The appointment of Mr.K.Logeshwaran was made by direct recruitment and therefore, the respondent ought to have obtained prior permission in terms of Rule 15(4) of the Rules. The appointment made in contravention of Rule 15(4) cannot be sustained. In view of the above, the decision of the learned Single Judge needs interference.”

21. In view of the above said decisions, it is clear that though the petitioner School has got a sanctioned vacancy, to fill up the said post, prior permission from the educational authorities is mandatory, since the petitioner institution is an Non-minority Institution.

22. According to the learned counsel appearing for the writ petitioner, the first vacancy arose in their school in the year 2016. Despite several reminders in the year 2016, 2017 and 2018, there was no response. The second vacancy arose in May 2019. Even thereafter, communications were addressed seeking prior permission. Only after waiting a period of four years, the present appointment order has been issued to Tmt.P.Banu Priya on 21.11.2020. This argument cannot be countenanced, in view of the fact that two Hon'ble Division Bench have rendered a categorical finding that even for filling up a sanctioned post, prior permission of the authority is mandatory.

23. Merely because the authorities have not responded to the request for prior permission, that will not enable the management to issue an appointment order. The delay on the part of the authorities for considering the request may give a cause of action to the petitioner management to file a writ petition for expeditious disposal of their application, but that cannot be a ground to validate the appointment made by the management on 29.11.2020. Therefore, it is clear that the appointment order of the petitioner management to Tmt.P.Banu Priya on 21.11.2020 cannot be approved by the authorities.

24. As far as the contention of the petitioner's counsel that the present impugned order wherein the prior permission is rejected solely based upon G.O.Ms.165 dated 17.09.2019 is concerned, as rightly pointed out by him that the said Government Order has already been struck down by the Division Bench of our High Court in W.A(MD).No.76 of 2019 (The Secretary to Government & others Vs. Iruthaya Amali & another) dated 31.03.2021. Therefore, the order of the second respondent dated 11.12.2020 and the consequential order of the third respondent dated 24.12.2020 rejecting the request for prior permission are not sustainable in the eye of law.

(D).Conclusion:

25. In view of the above said deliberations, this Court is inclined to pass the following orders.

               a) The orders impugned in the writ petition are hereby set aside and the matter is remitted back to the file of the second respondent to consider afresh the request of the management for granting prior approval to fill up the post of Secondary Grade Teacher.

               b) The prayer for mandamus to approve the appointment of Tmt.P.Banu Priya is hereby rejected.

               c) In case, if any order is passed by the respondents with regard to prior permission to fill up the post of Secondary Grade Teacher, the request of the management to approve the appointment of Tmt.P.Banu Priya may be considered from the date of granting prior permission.

26. In the result, the writ petition stands partly allowed to the extent as stated above. No costs.