K. Vasantha v. M. Velusamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 21.02.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.P. NO. 1535 OF 2007ANDM.P. NO. 1 OF 2007K.Vasantha.. Appellant/6th Respondent - Vs -1.M.Velusamy.. Ist Respondent/ Writ Petitioner2. The Director of School Education College Road, Chennai 600 006.3. The Joint Director of School Education (Hr. Sec.) College Road, Chennai 600 006.4. The Chief Educational Officer Tiruvallore District Tiruvallore.5. The District Educational Officer Ponneri Education District Ponneri, Tiruvallore.6. The Secretary Vijayanta Higher Secondary School H.V.F. Estate, Avadi Chennai 600 054... Respondents Writ Appeal filed under Clause 15 of Letters Patentagainst the order dated 25th Oct., 2007, passed by learned singleJudge in W.P. No.20592/07 calling for record on the file of the2nd respondent in proceeding No. MM 571-07/W3/E3/2006, dated10.3.2007 and quash the same and directing Ist and 2ndrespondents to regularize his services of the petitioner as HeadMaster in the fifth respondent School.For Appellant: Mr. T.Sellapandian, for Mr. M.Hidayathulla Khan https://hcservices.ecourts.gov.in/hcservices/ For Respondents: Mr. M.Ravindran, SC, for Mr. B.Manoharan for R-1 Mr. D.Srinivasan, AGP, for RR-2 to 5 Mr. G.Devadass for R-6JUDGMENTS.J.MUKHOPADHAYA, J.The appellant, who was the 6th respondent to the writpetition, challenged the impugned order dated 25th Oct., 2007,passed by learned single Judge in W.P. No.20592/07. By the saidorder, the Court allowed the writ petition in favour of the writpetitioner, the 1st respondent herein.2. The matter relates to promotion to the post of Headmasterof Vijayanta Higher Secondary School (hereinafter referred to asthe 'school'). The post of Headmaster having fallen vacant, theschool committee, in its meeting dated 26th May, 2006, ordered topromote Mr.M.Velusamy (writ petitioner) as Headmaster witheffect from 1st June, 2006. The said order of promotion waschallenged by Tmt.Vasantha, the appellant, before the JointDirector of School Education (Hr. Secondary), Chennai, the 3rdrespondent herein, who, vide its proceeding dated 10th May, 2007,declared the appellant, Tmt.Vasantha, more meritorious andsenior to the writ petitioner, Mr.M.Velusamy and allowed herrepresentation. The said order was challenged by the 1strespondent/writ petitioner in the writ petition in question.Pursuant to stay of the proceedings of the 3rd respondent, the 1strespondent/writ petitioner, Mr.M.Velusamy, continued asHeadmaster of the school and superannuated during the pendencyof the writ petition on 30th June, 2007.3. Learned single Judge, having noticed the fact that the1st respondent/writ petitioner superannuated from the post ofHeadmaster, without going into the merits and for the reasons,as quoted hereunder, set aside the order dated 10th May, 2007,passed by the 3rd respondent:-"10. By virtue of the stay of the impugnedproceedings of the 2nd respondent, the petitionercontinued as Headmaster of the 5th respondent-school and retired as such on 30th June, 2007 onattaining the age of superannuation. Now, itshall be a futile exercise to do post-mortem ofthe order of the second respondent. Thepetitioner by virtue of holding the post ofHeadmaster may get some retirement benefits andthe same need not be stalled after hisretirement on 30.6.2007. If the petitioner isstill holding the post, there will be somejustification in considering the matter on https://hcservices.ecourts.gov.in/hcservices/ merits to oversee whether the impugnedproceedings of the second respondent dated10.3.2007 is valid or not. Now, as statedalready, the petitioner continued in the post ofHeadmaster till has retired from service on30.6.2007 and practically, the prayer sought forby the petitioner in this writ petition hasalmost become infructuous. In fact,Mr.T.Sellapandian, the learned counsel appearingfor the 6th respondent fairly conceded that sincethe petitioner already retired from service, the6th respondent may not have any grievance, if thecase of the 6th respondent is considered forpromotion as Headmistress on and from the dateof the petitioner attaining the age ofsuperannuation. In view of the above facts andcircumstances of the case, I am constrained tohold that the impugned order of the 2ndrespondent is liable to be quashed and,accordingly, it is quashed. It is needless tosay that the petitioner is entitled to allretirement benefits as Headmaster of the 5threspondent-school."4. Both the parties claim to be senior to each other andalso claim meritorious. While according to the appellantseniority should be determined on the basis of date of initialappointment, learned counsel for the 1st respondent submittedthat as per statutory regulation, it should be counted on thebasis of the age.5. From the records the following facts emerge, which hasnot been disputed by the parties.Tmt.K.Vasantha (appellant) and Mr.M.Velusamy (1strespondent), both of them were initially appointed as B.T.Assistant in the year 1981 and subsequently promoted as P.G.Assistant on the same date, as detailed hereunder :-Tmt. K.VasanthaMr. M.VelusamyDate of appointmentas B.T. Assistant-16th Jan., 198117th Dec., 1981Date of appointmentas P.G. Assistant-11th Sept., 198511th Sept., 1985From the appellate order dated 10th May, 2007, it furtherappears that the appellant, Tmt.K.Vasantha having shown 100%result in 10th and 12th Public examinations, she receivedcommendation with Rs.1,000/= as cash prize from the management. https://hcservices.ecourts.gov.in/hcservices/ From the aforesaid data, it will be evident that theappellant, Tmt.K.Vasantha was senior to Mr.M.Velusamy, 1strespondent, as B.T. Assistant and both having promoted as P.G.Assistant on the same date, i.e., 11th Sept., 1985, in normalcourse persons senior in the lower grade, i.e., the appellantshould rank senior to the 1st respondent, who was appointedlater, in absence of any contrary rule.6. Counsel for the appellant relied on Section 15 (4) of theTamil Nadu Recognised Private Schools (Regulation) Rules, 1974,as published by M/s.C.Sitaraman & Co. Pvt. Ltd., 1st edition,July, 2005. Therein, provisions have been made for promotionon the ground of merit and ability, seniority being consideredonly when merit and ability are approximately equal, as quotedhereunder :-"15. Qualifications, conditions of service ofteachers and other persons.- (1) ******(4) (i) Promotion shall be made on grounds ofmerit and ability, seniority being consideredonly when merit and ability are approximatelyequal.[(ii) Appointments to the various categories ofteachers shall be made by the followingmethods :-(i) Promotion from among the qualifiedteachers in that school.(ii) If no qualified and suitablecandidate is available by method (i)above, -(a) Appointment of other personsemployed in that school, provided theyare fully qualified to hold the post ofteachers;(b) Appointment of teachers from anyother school;(c) Direct recruitment.********"On the other hand, according to learned counsel for the 1strespondent/writ petitioner, the said publication has notpublished the amended rule 15 and placed on record a copy of theTamil Nadu Recognised Private Schools (Regulation) Rules, 1974,as downloaded from the internet. Therein, Rule 15 (4) talks ofpromotion to the category of teacher and other persons on thebasis of the school seniority and reads as follows :-"15. Qualifications, conditions of service ofteachers and other persons.- (1) ****** https://hcservices.ecourts.gov.in/hcservices/ (4) (1) (i) Promotion to the category ofteachers and other persons shall be made on thebasis of school seniority.(ii) Appointments to the various categories ofteachers shall be made by the following methods.(a) Promotion from among the Qualifiedteachers in that school in the next lowergrade on identical scales of pay having dueregard to the subject and languagerequirement. If qualified and suitablecandidates are not available in that grade,candidates in the further next lower gradeshall be considered.(b) While filling the vacancies in thecadre of P.G. Teachers, candidates who haveobtained a Master's Degree and Bachelor'sDegree in the same subject or language asmain shall be given first preference.(2) If no qualified and suitable candidate isavailable by method (1) above, appointment shallbe made in the following order(a) Appointment of other persons employedin that school, provided they are fullyqualified to hold the post of teacher.(b) Appointment of teachers from any otherschool(c) Direct Recruitment.In the case of appointment from any other schoolor by direct recruitment, the school Committeeshall obtain the prior permission of theDistrict Elementary Educational Officer inrespect of Pre-Primary, Primary and MiddleSchool and that of the inspecting officer inrespect of High and Higher Secondary Schools,setting out the reasons for such appointment.For the purpose of promotion, a panel of namesof prima facie fully qualified and eligiblecandidates in each category shall be prepared ason 1st June of each year. If there is more thanone category on identical scale of pay theyshould be grouped together. The panel shouldcontain the names of all fully qualified andeligible candidates. Their names should bearranged according to their inter-se senioritydetermined by the date of joining duty in thatschool. If it happens to the be same date formore than one, their inter-se-seniority shall befixed with reference to their dates of birth,the elder being given the higher place.For Direct Recruitment, the private aidedEducational Institutions shall make all https://hcservices.ecourts.gov.in/hcservices/ appointments in their institutions through theEmployment Exchange only. When no candidate isavailable from the Employment Exchange or thecandidates who are sponsored from the EmploymentExchange are found to be unfit, it would be opento the Private Educational Agency to seek thepermission of the concerned authority and goahead with the recruitment from the opencompetition: [As per G.O. Ms. No.873 EducationScience and Technology (D2) Dept. dt. 13.11.95].iii) Appointment to the post of Head of a HighSchool :- For filling the vacancy of Head ofInstitution of a High School, the managementshall maintain a panel of names of all fullyqualified and eligible candidates in the feedingcadre, i.e., category of B.T. Asst. and othereligible categories on identical scales of payas on 1st June of each year, and their namesarranged according to their seniority to bedetermined with reference to the date of joiningthe eligible cadre in that School following theprocedure prescribed in sub rule (ii) above.The claims of the first five candidates in thatpanel shall be considered and the best amongthem shall be selected. While making theselection due consideration should be given to(a) Teaching (b) Proficiency in the subject(c) Leadership qualities(d) Ability to maintain discipline(e) Special contribution made for the growthand development of the Institutions(f) Sociability and(g) Personality and bearing(iv) Appointment to the post of Head of a HigherSecondary School :- Appointment to the post ofHead of Institution of a Higher SecondarySchool shall be made by the methods specifiedbelow.Promotion from among the qualified and eligiblecandidates in the category of Heads of HighSchools (and the T.T.I.) under the sameEducational Agency based on seniority.If no qualified and eligible candidate isavailable by method (a) above, promotion fromthe feeding category of P.G. Assistants inacademic subjects and languages provided theypossess the prescribed qualifications. For thepurpose of this rule, an integrated senioritylist of all prima-facie fully qualified andeligible candidates belonging to various https://hcservices.ecourts.gov.in/hcservices/ academic subjects and languages as on 1st June ofeach year shall be maintained. Their names inthe panel shall be arranged according to theirinter-se seniority fixed with reference to thedate of joining the P.G. Cadre in that Schoolafter becoming fully qualified for the post ofP.G. Asst.The claims of the first five candidates in thepanel shall be considered and the best amongthem shall be selected. While making theselection, due consideration should be given tothe factors (a) to (g) mentioned in sub rule(iii) above."Learned Additional Government Pleader appearing on behalf ofthe State, after verification, submitted that no such amendmenthas been made to Rule 15 (4) of the Tamil Nadu RecognisedPrivate Schools (Regulation) Rules, 1974.7. As per rule 15 (4), relied on by the appellant andaccepted by the learned counsel for the State as the rule invogue, promotions to be made on the ground of merit and abilityonly and seniority may play its role only if merit and abilityare approximately equal. In view of the aforesaid Rule 15 (4) ,the appellant, Tmt.Vasantha, having adjudged more meritoriousand being senior to the 1st respondent, Mr.M.Velusamy, we are ofthe view that the appellate authority, the Joint Director ofSchool Education (Higher Secondary), vide proceeding dated 10thMay, 2007, rightly allowed the appeal in favour of the appellant.8. So far as the submission made on behalf of the 1strespondent relating to so-called amended Rule 15 (4) isconcerned, even on the basis of the said rule, the 1st respondentcannot claim advantage over the appellant on the basis of age.Learned counsel for the 1st respondent relied on so-calledamended Rule 15 (4) (1) and sub-para 3 to Rule 15 (4) (2), asquoted hereunder :-"(4) (1) (i) Promotion to the category ofteachers and other persons shall be made on thebasis of school seniority.********For the purpose of promotion, a panel of namesof prima facie fully qualified and eligiblecandidates in each category shall be prepared ason 1st June of each year. If there is more thanone category on identical scale of pay theyshould be grouped together. The panel shouldcontain the names of all fully qualified andeligible candidates. Their names should be https://hcservices.ecourts.gov.in/hcservices/ arranged according to their inter-se senioritydetermined by the date of joining duty in thatschool. If it happens to the be same date formore than one, their inter-se-seniority shall befixed with reference to their dates of birth,the elder being given the higher place."But the aforesaid so-called amended Rule 15 (4) is notapplicable for appointment/promotion to the post of Head of aHigher Secondary School, which prescribed the following modeunder so-called amended Rule 15 (4) (2) (iv), as quotedhereunder :-"(iv) Appointment to the post of Head of aHigher Secondary School :- Appointment to thepost of Head of Institution of a HigherSecondary School shall be made by the methodsspecified below.Promotion from among the qualified and eligiblecandidates in the category of Heads of HighSchools (and the T.T.I.) under the sameEducational Agency based on seniority.If no qualified and eligible candidate isavailable by method (a) above, promotion fromthe feeding category of P.G. Assistants inacademic subjects and languages provided theypossess the prescribed qualifications. For thepurpose of this rule, an integrated senioritylist of all prima-facie fully qualified andeligible candidates belonging to variousacademic subjects and languages as on 1st June ofeach year shall be maintained. Their names inthe panel shall be arranged according to theirinter-se seniority fixed with reference to thedate of joining the P.G. Cadre in that Schoolafter becoming fully qualified for the post ofP.G. Asst.The claims of the first five candidates in thepanel shall be considered and the best amongthem shall be selected. While making theselection, due consideration should be given tothe factors (a) to (g) mentioned in sub rule(iii) above."As per the aforesaid provision also, promotion to be madebased on seniority and panel has to be arranged according totheir inter-se seniority fixed with reference to the date ofjoining the P.G. cadre in the school. Both the appellant andthe 1st respondent having promoted as P.G. Assistant on the samedate, i.e., 11th Sept., 1985, in such case also, the appellantwill rank senior, being senior in the cadre next below. https://hcservices.ecourts.gov.in/hcservices/

9. Apart from the fact that learned single Judge failed tonotice the aforesaid fact, we are of the view that it was notdesirable for learned single Judge to set aside the appellateorder dated 10th May, 2007, without deciding the claim of theparties on merits. For the said reason, we have no other optionbut to interfere with the impugned order passed by learnedsingle Judge. We, accordingly, set aside the order dated 25thOct., 2007, passed by learned single Judge and restore the orderdated 10th May, 2007, passed by the appellate authority, theJoint Director of School Education (Higher Secondary).10. So far as the 1st respondent is concerned, he acted asHeadmaster of the school in view of interim order passed by thisCourt and superannuated during the pendency of the writpetition. For the said reason, we are not directing to recoverany amount from the salary of the 1st respondent, though it willbe open to the State to fix his pension notionally, treating hima P.G. Assistant of the school, the basic post against which hewas functioning, without taking into consideration the order ofpromotion, which was originally issued in his favour, but setaside by the appellate authority.The writ appeal is allowed with the aforesaid observations.Consequently, connected miscellaneous petition is closed. Butthere shall be no order as to costs.GLNSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Director of School Education College Road, Chennai 600 006.2. The Joint Director of School Education (Hr. Sec.) College Road, Chennai 600 006.3. The Chief Educational Officer Tiruvallore District, Tiruvallore.4. The District Educational Officer Ponneri Education District Ponneri, Tiruvallore. https://hcservices.ecourts.gov.in/hcservices/

5. Vijayanta Higher Secondary School H.V.F. Estate, Avadi Chennai 600 054.•One cc to Mr. G. Devadoss, Advocate SR 9103•One cc to Mr. B.Manoharan, Advocate SR 9601•One cc to Mr. M. Hidayathulla Khan, Advocate SR 9493•One cc to Govt Pleader SR 7119VSV (co)sg 27/2/08JUDGMENT IN W.A. NO. 1535 OF 2007Pronounced on 21.02.2008