Right To Get Appointment Or Approval Should Be Traceable To Statute & Not Court’s Interim Order: Madras High Court

The writ appeal before the High Court was filed by the Education Department.

The Division Bench of Justice C.V. Karthikeyan and Justice R. Vijayakumar held, “The interim order granted by the Court is only to protect the interest of the parties to the proceedings pending disposal of the writ petition. Had the first respondent been appointed prior to G.O.Ms.238, he could have taken advantage of the said interim order granted by the Division Bench in WA(MD).No.816 of 2023. The right to get an appointment/approval should be traceable to a statute or a Government Order. It cannot be traced through an interim order passed by the Court.

Government Advocate P.T.Thiraviyam represented the Petitioner, while Advocate Suresh Manickam represented the Respondent.

Factual Background

The first respondent was appointed as a Waterman in a School in 2019, in the vacancy of one employee who had attained superannuation. The second respondent, School submitted a proposal to the authority seeking approval for his appointment and for the disbursement of the grant-in-aid. The proposal was returned by the authorities, stating that, as per G.O.Ms.No.238 of the year 2018, the post of Waterman had been abolished. The said order was challenged in a writ petition.

The writ Court proceeded to allow the writ petition on the ground that the above-mentioned Government Order had been challenged, and an order of status quo as well as an order of interim stay was granted. The writ Court thus directed the authorities to approve the appointment of the first respondent subject to the result of the writ petition wherein the Government Order was under challenge. Challenging the above-mentioned order, the writ appeal came to be filed.

Reasoning

Referring to G.O.Ms.No.238 abolishing the post of Librarian, Clerk, Waterman, Gardener/Cleaner and Gardener, the Bench noted that it was indicated therein that as and when a vacancy arises in these posts due to the death, retirement or promotion of the incumbents, those posts would automatically lapse. Further, the posts could not be revived. The first respondent was issued with an appointment order as Waterman on February 1, 2019, which was three months after G.O.Ms.No.238. It was further noticed that when the appointment of the first respondent was made, the post had already been abolished.

The Bench was of the view that the respondent could have taken advantage of the interim order granted by the Division Bench had he been appointed before G.O.Ms.238. Thus, setting aside the order of the Writ Court and allowing the Writ Appeal, the Bench closed the connected miscellaneous petition.

Cause Title: The Secretary to Government Education Department v. J.Augustin (Case No.: W.A(MD). No.1158 of 2020)

Appearance

Petitioner: Government Advocate P.T.Thiraviyam

Respondent: Advocates Suresh Manickam, S.Chellapandian, D.Deepak Arasu

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