STATE OF TAMIL NADU & ORS. versus AMALA ANNAI HIGHER SECONDARY SCHOOL

Citation: [2009] 13 S.C.R. 913 · Decided: 28-08-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Appeal(s) allowed

Judgment (excerpt)

(2009] 13 (ADDL.) S.C.R. 913 
STATE OF TAMIL NADU & ORS. 
A 
V. 
AMALA ANNAi HIGHER SECONDARY SCHOOL 
(Civil Appeal No. 5855 of 2009) 
AUGUST 28, 2009 
B 
[TARUN CHATTERJEE AND R.M. LODHA, JJ.] 
Service law - Sanction of post of Junior Assistant -
Upgradation of school from middle school to high school -
c 
Appointment of Junior Assistant by school management 
without approval from competent authority - Subsequently, 
representation to State Government for sanction of one post 
of Junior Assistant - School also filing writ petition - Rejection 
~. 
of representation by State Government - Decision not 
challenged - Filing of another writ petition seven years later D 
~ 
-
Direction by Single Judge of High Court to State 
Government to sanction one post of Junior Assistant to school 
- Upheld by Division Bench - Sustainability of - Held: Not 
sustainable - Management of the school did not challenge 
the decision of State Government, thus could not file second 
E 
writ petition for the same relief - G. 0. containing norms for 
sanction of posts for high schools not applicable - Junior 
Assistant appointed to a non-sanctioned post - Required 
strength of the student not fulfilled - Creation and sanction 
of posts is the prerogative of executive and Courts cannot 
F 
arrogate to themselves a purely executive power - Tamil 
Nadu Minority Schools (Recognition and Pay of Grant) Rules, 
1977 - Rule 6(2) - G.O.Ms. No. 340, dated April 1, 1.992; 
G.O.Ms. 245/Education, February 21, 1970. 
The question which arose for consideration in this G 
appeal was whether both the Division Bench and the 
Single Judge of High Court were justified in directing the 
appellant no.1-State Government to sanction one post of 
913 
H 
914 
SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R. 
A Junior Assistant to the respondent no.1-school. 
Allowing the appeal, the Court 
HELD: 1.1. The judgment of the Division Bench 
affirming the order of the Single Judge cannot ~e 
B sustained. 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 
C in furtherance thereto, the state government, after hearing 
the school, rejected the representation. The management 
of the school did not challenge the 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 
D 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 . 
E 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 
F cause of action for filing second writ petition can be said 
to have arisen. In the facts and circumstances of the 
case, second writ petition by the management of the 
school for the same relief is nothing but an abuse of the 
process of the court. [Para 10] [918-G-H; 919-A-G] 
G 
1.2. The G.O.Ms. No. 340, dated April 1, 1992 is not 
attracted at all. The said G.O.Ms containing norms for 
sanction of posts is applicable for the high schools 
opened in 1987-88 and earlier. In the instant case, the 
school was upgraded to high school in 1988-89. [Para 11] 
H [919-G-H; 920-A-B] 
STATE OF TAMIL NADU & ORS. v. AMALA ANNAi 
915 
HIGHER SECONDARY SCHOOL 
1.3. The Division Bench as well as the Single Judge 
A 
overlooked and ignored sub-Rule (2) of Rule 6 of the 
Tamil Nadu Minority Schools (Recognition and Pay of 
Grant) Rules, 1977 which reads: "Payment of monthly 
staff grant shall be made only in respect of qualified and 
admissible teachers actually employed in minority 8 
schools whose appointments have been approved by the 
concerned authorities according to the number of posts 
sanctioned to the institutions concerned." In the instant 
case, the management of the school appointed R as 
Junior Assistant to a non-sanctioned post. The c 
explanation of the management that she was appointed 
in anticipation of orders from the Competent Authority 
hardly merits acceptance. [Para 12] 

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