Case Note & Summary
The matter arose from an intra-court writ appeal under Clause 15 of the Letters Patent before the Madras High Court, challenging a Single Judge order dated 22.11.2023 in W.P.No.6334 of 2022. The dispute concerned the effective date of approval of appointment of the first respondent, JP Alwin Nicholas Jesudoss, as Office Assistant in the third respondent school, a Danish Mission Higher Secondary School, Thiruvannamalai. The school had three sanctioned Office Assistant posts; Mr. Solomon retired on 31.01.2014, Mr. D. Kanagaraj retired in 2017, and Mr. Raja died on 22.04.2023. The first respondent was appointed on 20.11.2017. The school management and first respondent sought approval from the date of initial appointment, while the State authorities contended that under G.O.Ms.No.238, School Education Department, dated 13.11.2019 (noted as 13.11.2018 in the quoted order), posts were restricted to two for schools with student strength up to 1500, and approval could only be granted from 22.04.2023 when a vacancy arose due to Mr. Raja's death. The learned Special Government Pleader submitted there was no impediment to approve the appointment in that vacancy. The Court noted a Division Bench common order dated 23.06.2026 in W.A.(MD) Nos.816 of 2023 etc. batch, which held that pending proposals for approval, whether before or after G.O.Ms.No.238, shall be considered on merits; approval shall be co-terminus with the incumbent; and no right to fill the post after vacancy. Applying that ratio, the Court framed the sole question as whether approval should be from 2017 or from 22.04.2023. The Court held that retrospective approval from the date of initial appointment was not permissible because no vacancy existed at the time of appointment and the staff strength had been restricted. Therefore, the appointment of the first respondent was to be approved with effect from 22.04.2023 with all monetary and other benefits. The writ order dated 22.11.2023 was modified accordingly; the writ appeal was allowed in part; no order as to costs; connected miscellaneous petition closed.
Headnote
A) Service Law - Appointment Approval in Aided School - Retrospective Approval Not Permissible Without Existing Vacancy - No specific Act cited; Government Order G.O.Ms.No.238, School Education Department, dated 13.11.2019 (also referred to as 13.11.2018) - The first respondent was appointed on 20.11.2017 when three Office Assistant posts were filled; no vacancy existed at that time, and the government policy later restricted posts to two. The Court held that approval could not be granted from the date of initial appointment but only from the date a vacancy arose on 22.04.2023 due to the death of Mr. Raja. Held that retrospective approval is impermissible absent a sanctioned vacancy. (Paras 2-6) B) Service Law - Effect of Government Order Restricting Staff Strength - Approval Co-terminus with Incumbent - Government Order G.O.Ms.No.238, School Education Department, dated 13.11.2019 (also referred to as 13.11.2018) - The Court relied on a Division Bench common order in W.A.(MD) Nos.816 of 2023 etc. batch dated 23.06.2026 which held that pending proposals for approval, whether before or after the issuance of G.O.Ms.No.238, shall be considered on their own merits; any approval shall be co-terminus with the incumbent, and institutions have no right to fill the post after it falls vacant. Held that the first respondent's approval is co-terminus with his tenure. (Paras 4-5) C) Writ Appeal - Modification of Writ Order - Appellate Power under Letters Patent - Letters Patent, Clause 15 - The High Court modified the order dated 22.11.2023 passed in W.P.No.6334 of 2022 to the extent that approval of the first respondent's appointment shall be granted with effect from 22.04.2023 with all monetary and other benefits. The writ appeal was allowed in part, no order as to costs. Held that the writ order stands modified accordingly. (Paras 5-6)
Issue of Consideration
Whether the first respondent is entitled to approval of his appointment as Office Assistant with effect from the date of his initial appointment in 2017 or only from 22.04.2023, the date on which a vacancy arose due to the death of Mr. Raja, in view of G.O.Ms.No.238 restricting the number of Office Assistant posts.
Final Decision
The writ order dated 22.11.2023 passed in W.P.No.6334 of 2022 is modified to the extent that approval of the first respondent's appointment shall be granted with effect from 22.04.2023 with all monetary and other benefits. The writ appeal is allowed in part. No order as to costs. Connected civil miscellaneous petition closed.
Law Points
- Approval of appointment in aided schools must be considered on merits if proposal pending even after G.O.Ms.No.238
- approved posts are co-terminus with incumbent
- no right to fill post after vacancy
- retrospective approval not permissible without existing vacancy at initial appointment
- government policy restricting staff strength prevails
