Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5855 OF 2009 (Arising out of SLP(C) No. 21590/2008)

State of Tamil Nadu & Ors.      …Appellants

Versus   Amala Annai Higher Secondary School …Respondent

JUDGEMENT

R.M. Lodha, J.

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  

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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  

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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  

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above,  the  Division  Bench  by  its  order  dated  December  18,  

2008  dismissed  the  appeal  and  maintained  the  order  of  the  

Single Judge.

9. We  heard  Mr.  E.  Padmanabhan,  learned  Senior  

Counsel for the appellants and Mr. C. Selvaraju, learned Senior  

Counsel for the school and considered the relevant provisions  

of Tamil Nadu Minority Schools (Recognition and Pay of Grant)  

Rules,  1977  (hereinafter  referred  to  as  ‘Rules,  1977’)  and  

various G.O.Ms., particularly, G.O. (4D) No. 4, dated November  

23, 1991; G.O.Ms. No. 340, dated April 1, 1992 and G.O.Ms.  

No. 50, dated January 20, 1995.  

10. In  our  view,  the  judgment  of  the  Division  Bench  

affirming the order of the Single Judge cannot be sustained for  

more than one reason.  In the first place, the management of  

the school had already filed writ petition in 1997 praying therein  

that the state government and its functionaries be directed to  

consider  their  representation dated January 20,  1997 for  the  

grant of one post of Junior Assistant and in furtherance thereto,  

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the  state  government,  after  hearing  the  school,  rejected  the  

representation on July 3, 1998 indicating the following reasons :

“At the time of sanction of posts G.O. Ms. No. 50 Education  dated 20-1-95 as per the norms issued in G.O.Ms. No. 340  Education Dated 1-4-92 the strength of your school during  1990-91 was below 300. The orders in G.O.Ms. No. 340 are  clear.  It  says  that  there  is  no  compulsion  to  give  non- teaching  staff  as  and  when  the  school  increases  the  strength. Therefore your request for sanction of one post of  Junior Assistant is not feasible of compliance.”

The  management  of  the  school  did  not  challenge  the  

aforesaid decision of the state government and,  therefore, it  

was not open to the school to file another writ petition for the  

same  relief,  i.e.,  for  direction  to  the  state  government  to  

sanction one post  of  Junior  Assistant  to the school  from the  

academic year 1991-92.  The controversy stood concluded in  

the  earlier  round  of  litigation  and  the  decision  of  the  state  

government dated July 3, 1998 having not been challenged, the  

second writ  petition  could  not  have  been  entertained by the  

High Court.  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 can be said  

to have arisen.   In the facts and circumstances of  the case,  

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second writ petition by the management of the school for the  

same relief is nothing but an abuse of the process of the court.

11. Secondly, insofar as G.O.Ms. No. 340, dated April  

1, 1992 is concerned, it is not attracted at all.   G.O.Ms. No. 340  

dated  April  1,  1992,  issued  by  the  Education  Department  

mentions,  “Accordingly,  the  following  staffing  pattern,  was  

recommended by the Committee for deciding the eligibility for  

post for the schools in question (opened in 1987-88 and earlier)  

–.”  Thus,  G.O.Ms.  No.  340  dated  April  1,  1992  containing  

norms for sanction of posts is applicable for the high schools  

opened in 1987-88 and earlier.  In the present case, the school  

was upgraded to high school in 1988-89.

12. Thirdly,  the  Division  Bench as  well  as  the  Single  

Judge overlooked and ignored sub-Rule (2)  of  Rule 6 of  the  

Rules, 1977 which reads : “Payment of monthly staff grant shall  

be made only in respect of qualified and admissible teachers  

actually  employed  in  minority  schools  whose  appointments  

have been approved by the concerned authorities according to  

the number of posts sanctioned to the institutions concerned.”  

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Admittedly, in the present case, the management of the school  

appointed Ms. Rosary 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 hardly merits acceptance.

13. Fourthly,  as  per  the  norms  issued  in  relevant  

G.O.Ms., the strength of the school during 1990-91 ought to be  

300 and above while the students’ strength of the school during  

1990-91 was only 281.  As a matter of fact, it is not even the  

case  of  the  management  that  during  1990-91,  the  student  

strength was 300 or more.  The student strength during 1993-

94 and subsequent years  has no relevance.   It  is here that  

High Court fell into a grave error because what was important  

under  the  relevant  G.O.Ms.  was  that  student  strength  must  

have been 300 or more during the years 1988-89, 1989-90 and  

1990-91.

14. Fifthly,  the  reliance  placed  by  the  High  Court  on  

G.O.Ms. 245/Education, dated February 21, 1970 is misplaced  

inasmuch as the said G.O. applied to clerks who were already  

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employed in and around the year 1964 and has no application  

to  a  junior  assistant  appointed  to  a  non-sanctioned  post  in  

1988-89.

15. Last  but  not  the  least,  the  High  Court  erred  in  

directing the present Appellant No. 1 to sanction one post of  

Junior Assistant to the Respondent No. 1 – AAHS School from  

June  1,  1994  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.  

16. The  appeal  must,  accordingly,  succeed  and  is  

allowed with no order as to costs.

……………………J (Tarun Chatterjee)

…….……………..J         (R. M. Lodha)

New Delhi August 28,  2009

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