T.Selvapandy v. The Joint Director of School Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 22-01-2009CORAMTHE HONOURABLE MR.S.J.MUKHOPADHAYA,ACTING CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL Nos.1184 & 1252 OF 2008W.A.No.1184/2008 :T.Selvapandy...Appellant-vs-1.The Joint Director of School Education, (Higher Education), Chennai-6.2.The Secretary, W.P.A.Soundarapandian Higher Secondary School, No.76, N.M.K.Street, Ayanavaram, Chennai-23.3.P.Vajravelu...RespondentsW.A.No.1252/2008 :The W.P.A.Soundarapandian Higher Secondary School,rep.by its Correspondent,S.V.A.Balasubramanian,No.76, N.M.K.Street,Ayanavaram,Chennai-23....Appellant-vs-1.The Joint Director of School Education, (Higher Secondary), Chennai-6.2.The Director of School Education, Higher Secondary, Chennai – 600 006. https://hcservices.ecourts.gov.in/hcservices/

3.P.Vajravelu4.T.Selvapandy...RespondentsAppeals under Clause 15 of the Letters Patent against thecommon order dated 30.09.2008 passed in W.P.Nos.38889 of 2006 and 24328of 2007 by a learned single Judge.filed under under Article 226 of the constitution of India WP 38889/2006: to issue a writ of Mandamus,directing the firstrespondent to issue necessary direction to the second respndent topromote the petitioner as Headmaster of the second respondent school,by implementing the order of the first respondent dated 17.4.2006 inMoo.Mu.No.21972/W.8/2005, by considering the representation of thepetitioner dated 23.8.2006, followed by reminder dated 27.9.2006.WP 24328/2007: to issue a writ of Certiorari Mandamus call for therecords of the 1st respondent pertaining to his proceedings inMu.Mu.No.21972/W8/2005 dated 17.8.2006 and as confirmed by the 2ndRespondent vide his order in Na.Ka.No.43156/W.5/E3/2006 dated 15.6.2007communicated on 7.7.2007 and to quash the same and to approve theappointment of the 4th respondent to present incumbent herein.For appellant in W.A.No.1184/2008 : Mr.L.ChandrakumarFor appellant in W.A.No.1252/2008 : Mr.S.DharmakkanFor respondent 1 in W.A.No.1184/2008 & respondents 1 and 2 in W.A.No.1252/2008 :Mr.D.Sreenivasan,Addl.Govt.PleaderFor respondent 3 in both W.As.: Mr.C.Selvaraj, Senior Counsel, for Mr.S.Mani.J U D G M E N TV.DHANAPALAN,J.These two appeals have been preferred one by the individualand the other by the school management aggrieved over the common orderpassed by a learned single Judge, confirming the orders of respondents1 and 2 in W.A.No.1252 of 2008, setting aside the appointment ofT.Selvapandy, appellant in W.A.No.1184 of 2008, as Headmaster by theSchool Committee in the W.P.A.Soundarapandian Higher Secondary School,in short "the School". https://hcservices.ecourts.gov.in/hcservices/

2. The post of Headmaster fell vacant on the erstwhileHeadmaster A.Moses Samuel Chelliah attaining superannuation on31.05.2004. Pursuant to his retirement, the third respondent, namely,Vajravelu was appointed as In-charge Headmaster. Since the school wasrun by a Sangam, the management formed a school committee to select theHeadmaster from the eligible candidates.3. The claim of the school in the Writ Petition was thatinterview was conducted by the committee, calling upon all the eligibleP.G. Assistant Teachers working at that time and, based on theinterview, marks and merit were awarded to every teacher, pursuant towhich the fourth respondent, namely, Selvapandy, who is the appellantin W.A.No.1184/2008 was appointed as Headmaster with effect from10.02.2005. Distressed over the said appointment, the third respondent,namely, P.Vajravelu preferred an appeal to the first respondent on theground that he was more meritorious than the fourth respondent.Thereupon, the first respondent allowed the appeal on 17.04.2006,accepting the case of the third respondent for promotion as Headmaster.Against the said decision of the first respondent, the schoolmanagement preferred an appeal to the second respondent, namely, theDirector of School Education, who, by an order, dated 15.06.2007,confirmed the order of the first respondent and dismissed the appeal.Challenging the same, the fourth respondent and the school managementpreferred the writ petitions, which were dismissed by the learnedsingle Judge. Hence, these Writ Appeals, as stated above.4. The only contention of the learned counsel for theappellants is that Rule 15 (4) of the Tamil Nadu Recognised PrivateSchools (Regulation) Rules,1974, (in short, "the Rules") prescribes themethod of selection for the post and seniority shall be taken intoaccount only if merit and ability are approximately equal and, in thiscase, the school committee assessed the merit and ability of all theeligible persons including that of third and fourth respondents and, ona comparative analysis, selected the fourth respondent to the post ashe was meritorious and, accordingly, appointed him as Headmaster of theschool; therefore, the appellate authority cannot assess the merit andtake a decision while exercising its jurisdiction and, as such, theorders of the learned single Judge and also the Department have to beset aside. The learned counsel has cited a decision of the SupremeCourt in S.Sethuraman v. R.Venkataraman and Others, 2007 (6) SupremeCourt Cases 382, wherein, in para 17, it has been held as under:"17.While exercising the appellatejurisdiction, the appellate authority hasindisputably a plenary power. It may not onlyconsider the respective educationalqualifications and other activities of therespective candidates for the purpose ofarriving at a decision as to which of the twocandidates had better merit and ability, but it https://hcservices.ecourts.gov.in/hcservices/ should exercise its jurisdiction keeping inview the views of the Managing Committee. Iftwo views are possible, ordinarily, the view ofthe Managing Committee should be allowed toprevail." 5. Conversely, learned Additional Government Pleaderappearing for the Department would submit that the rules andregulations in selecting the candidate have to be followed by theselection committee and when there is no such adherence to rule of law,the appellate authority has got every jurisdictional right to look intothat and set right the same. 6. We have heard the learned counsel for the parties;considered the rival submissions and also gone through the records.7. Rule 15 (4) (i) of the Rules stipulates that promotionshall be made on grounds of merit and ability, seniority beingconsidered only when merit and ability are approximately equal.8. In this connection, it is imperative to analyse theeducational qualifications and merits of third and fourth respondentsas follows :Particulars(1)P.VAJRAVELU(2)T.SELVAPANDY(3)Date of appointmentas P.G. Assistant19.09.197910.09.1980 (withoutB.Ed. (fully qualifiedfrom 24.04.1982 withB.Ed.)Total service as on31.01.200525 years & 4 months24 years & 4 monthsDate of retirement28.02.200931.10.2011 https://hcservices.ecourts.gov.in/hcservices/ EducationalQualificationsB.Sc. (Maths)M.A. (Tamil)M.A. (Defence Studies) (related toNCC)M.A. (Sociology)(related to TeacherTraining)M.Ed.M.Phil (Tamil)Diploma in SchoolManagementCertificate for FrenchlearningM.Com.M.Ed.B.L.Subjects takenXI & XII Std. - TamilX Std. - Maths(1981-1997 & 2004-2005)IX Std. - EnglishMaths (1979-1981)Teacher Training Coursein the subjects ofPsychology andSociology (1986-1989)XI & XII Std. -Commerce andAccountancy.Held the post ofAssistant HeadmasterFrom 10.01.1991 to tilldateNilHeadmaster in-chargeFrom the last week ofApril 2002 to July 2002From June 2004 to 9thFebruary 2005Nil https://hcservices.ecourts.gov.in/hcservices/ Extra CurricularactivitiesWorked as Associate NCCOfficer from 2.11.1980to till date.No. of Campsattended : 16.His NCC Cadet one Mr.P.Ashok Kumarsecured All India ThirdRank in Tal Sainik Campin the year 2002NO9. The above table makes it clear, that, as regards theeducational qualifications, while T.Selvapandy possesses M.Com., M.Ed.and B.L.degrees, P.Vajravelu possesses B.Sc. (Maths), M.A. (Tamil),M.A.(Defence Studies), M.A.(Sociology) and M.Ed. together with Diplomain School Management. Further, Vajravelu had been handling Maths for XStandard and Tamil for Standards 11 and 12. Coming to experience, hehad worked as Assistant Headmaster since 10.01.1991 onwards and asHeadmaster In-charge since 01.06.2004. With regard to seniority, whileVajravelu, stood at first place, Selvapandy at fifth. Moreso, from theacademic years 2000-2001 to 2004-2005, in respect of percentage ofpasses for the students, in the two subjects handled by Vajravelu, thepercentage, except in one year, was centum, whereas in the subjecttaught by Selvapandy, there was 100% result in one year only. Added tothe above, Vajravelu was selected as N.C.C.Officer for the studentscadets in 1980 and he participated in training camps in Tamil Nadu andat all India levels. He also participated in science exhibitions,maths exhibitions and in Arts and Crafts exhibitions. While he wasworking as Headmaster In-charge, the percentage of passes regarding thestudents in Tamil and Maths was 100% for 10th and 12th Standards, forwhich he was given the Best Teacher Award by the District EducationalOfficer, North Chennai.10. So, in respect of Rule 15 (4) (i) of the Rules, it wasnot only in qualification and ability, but also in service seniority,that P.Vajravelu was in the fore-front and, therefore, he was found bythe first respondent to be more qualified for promotion to the post ofHeadmaster, which finding was confirmed by the second appellateauthority and also the learned single Judge.11. The law is well settled that the appellate authority,while exercising the power conferred on it, should consider the meritof the teachers in the school for the post of Headmaster and the meritincludes not only the educational qualifications but the otheractivities of the candidates for the purpose of arriving at a decisionas to which of the candidates has better merit and ability, keeping in https://hcservices.ecourts.gov.in/hcservices/ mind the views of the school committee. 12. It is also a settled legal position that when the ruleprescribes the method of selection in respect of private schools, theauthority, must take into account the qualification and ability forpromotion to the higher post. In case the qualification and abilityare found equal, seniority should be taken into account. If this ruleis not followed, it is the bounden duty of the authority, exercisingappellate jurisdiction, to set right the defects or anything donecontrary to law and that power cannot be termed as arbitrary, which wasexactly done in this case. 13. From the above, what transpires is that thequalifications and ability of the two candidates in question had notbeen assessed in the manner known to law by the school committeewhereas the appellate authority applied the rule of law and, onconsideration of the entire materials, exercised its jurisdiction andset aside the decision of the school committee, allowing the appeal.The learned single Judge also, on going through the entire relevantmaterials for consideration of the case and on seeing the relevantqualifications, ability and seniority, found that the appellateauthority exercised its jurisdiction in accordance with law, therebyconfirming the order of the appellate authority and rejecting the caseof the appellants.14. As the appellate authority has considered the educationalqualifications and other activities of the two candidates for thepurpose of arriving at a just decision as to which of them had bettermerit and ability as also seniority in accordance with Rule 15 (4) (i),the aspect of taking into account the view of the school committee,which was bereft of merit consideration, is uncalled for. Therefore,the Sethuraman's case, cited by the learned counsel for the appellant,is of no avail to the appellants' case.15. In view of our discussion made above, we are of the firmopinion that the learned single Judge was perfectly justified inconfirming the orders passed by the Department and dismissing the WritPetitions. Therefore, these Writ Appeals stand dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrardixit https://hcservices.ecourts.gov.in/hcservices/ To1.The Joint Director of School Education, (Higher Secondary), Chennai-6.2.The Director of School Education, (Higher Secondary), Chennai – 600 006.+2ccs to M/s.S.Dharmakkan,Advocate Sr 3041+1cc to M/s.S.Mani, Advocate Sr 2702+1cc to M/s. L.Chandrakumar, Advocate Sr 2920+1cc to Govt. Pleader Sr 3169SSR (CO)km/3.2.W.A.Nos.1184 & 1252/2008