Interim Stay On Govt Order Doesn't Create Right Of Appointment Against Abolished Post: Madras High Court

Background Facts

The Education Department, Government of Tamil Nadu issued G.O.Ms.No.238, School Education (Pa.Ka6(1)) Department, dated 13.11.2018. It abolished several non-teaching posts, including the post of Waterman. The order stipulated that any vacancies arising in these posts due to retirement, death, or promotion would automatically lapse and could not be revived.

The respondent was appointed as a Waterman in the West Tirunelveli Higher Secondary School on 01.02.2019. This appointment was made to fill a vacancy created by the retirement of an employee, who had attained superannuation on 31.01.2019. The school management submitted a proposal to the educational authorities on 28.03.2019, seeking approval for the appointment and the disbursement of grant-in-aid. Citing the government order (G.O.Ms.No.238), the authorities returned the proposal on 15.05.2019. The authorities refused approval on the grounds that the post of Waterman stood abolished. Aggrieved, the respondent filed a writ petition. The writ petition was allowed by the Single Judge on 22.10.2019, directing the authorities to approve the appointment. It was held that the validity of G.O.Ms.No.238 was under challenge in other pending writ petitions where orders of stay had been granted.

Aggrieved by the same, the appellants filed the writ appeal to set aside the order of the Single Judge.

It was submitted by the appellants that G.O.Ms.No.238 had abolished the post of Waterman, and the respondent's appointment was made three months after the issuance of the Government Order. Therefore, the appointment was illegal from its inception because the post was already abolished. It had automatically lapsed upon the retirement of the previous employee.

The appellant also relied upon a judgment of The Secretary to Government, Education Department, Chennai and others Vs. Subbulakshmi and another, where the Court had allowed a similar appeal filed by the Education Department and set aside a direction to approve the appointment of a Record Clerk, relying upon the validity of G.O.Ms.No.238.

On the other hand, it was submitted by the respondent that he was appointed to a sanctioned post which had become vacant due to the retirement of a former employee. The appointment was made against a clear, existing vacancy and was therefore valid. The respondent further contended that a post sanctioned under the statute cannot be taken away by a Government Order. He placed reliance on the order passed by the High Court in W.A.(M.D).No.816 of 2023, whereby the operation of the G.O.Ms.No.238 had been stayed. It was argued that there was no legal impediment for approving his appointment.

Findings of the Court

It was observed by the court that the respondent's appointment as a Waterman was made on 01.02.2019, which was nearly three months after the issuance of G.O.Ms.No.238. The Government Order had abolished the post of Waterman, stipulating that such posts would automatically lapse upon a vacancy arising due to retirement, death, or promotion. Therefore, when the appointment of the first respondent was made, the post had already been abolished. Further the judgment in W.A.(M.D).No.201 of 2025 was relied upon wherein the court set aside the appointment of a Record Clerk by relying on the G.O.Ms.No.238.

It was noted by the court that an order of stay granted in W.A.(M.D).No.816 of 2023 was restricted to Sweepers and Scavengers. It was held by the court that the stay order granted by the Court was only to protect the interest of the parties to the proceedings pending disposal of the writ petition. If the respondent had been appointed prior to G.O.Ms.238, then he could have taken advantage of the stay order. It was further held by the court that the right to get an appointment or its approval should be traceable to a statute or a Government Order. It cannot be traced through an interim order passed by the Court.

It was concluded by the court that the Single Judge had erred in directing the approval of the appointment based on an interim stay in a different matter. Hence, the order of the writ court was set aside and the writ appeal filed by the Education Department was allowed by the court.

Case Name : Secretary to Government Education Department State of Tamil Nadu & Ors vs J. Augustin & Ors

Citation: 2025 LiveLaw (Mad) 320

Case No. : W.A(MD).No.1158 of 2020

Counsel for the Appellants : P. T. Thiraviyam Government Advocate

Counsel for the Respondents : Suresh Manickam For S.