CoramThe Honourable Mr v. The Secretary and Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 5-1-2007CoramThe Honourable Mr.Justice P.SATHASIVAMandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.A.No.1225 of 2003G. Annamalai ...AppellantVs.1.The Secretary and Commissioner,Education Department,Government of Tamil Nadu,Fort St.George,Madras - 600 0092.The Director of School Education,College Road, Madras - 600 0063.The Joint Director (Higher Secondary),College Road, Madras - 600 006.4.The Secretary,Theagarayanagar Higher Secondary School,17, Venkatanarayana Road,T.Nagar, Madras - 600 017.5.The Chief Educational Officer,Anna Salai, Madras - 2.6.The District Educational Officer,Madras South, Egmore, Madras - 8.7.Mrs.N.Nirmala...RespondentsThis Writ Appeal has been filed under Clause 15 of LettersPatent against the order of the learned single Judge inW.P.No.5439 of 1995 dated 11.10.2002 under article 226 of theConstitution of India a writ of mandamus directing the 4threspondent school to promote the petitioner as Headmaster witheffect from 1.6.1985 with all attandant service benefits. https://hcservices.ecourts.gov.in/hcservices/ For Appellant:Mr.G.Rajagopalan,Senior Counselfor Mr.S.ChandrasekaranFor RR-1 to 3, 5,6:Mrs.Bhavani SubbarayanGovernment AdvocateFor 4th Respondent:Mr.A.V.K.EzhilmaniJ U D G M E N TN. PAUL VASANTHAKUMAR, J.This writ appeal is filed against the order of the learnedsingle Judge dated 11.10.2002 made in W.P.No.5439 of 1995,dismissing the writ petition filed by the appellant.2.Brief facts necessary for disposal of this writ appealare as follows.(a)Appellant was working as Post Graduate Teacher (Tamil)and as Assistant Headmaster (PG grade) in the 4th respondentSchool. The 4th respondent School is a Private Recognised andAided School. According to the appellant, the post ofHeadmaster became vacant in the 4th respondent School on 1.6.1985and a request was made by the appellant to promote him asHeadmaster since he was the senior-most Post Graduate Assistant.However, the 4th respondent management selected and promoted oneAnthonysamy as Headmaster, against which the appellant filedappeal before the Director of School Education and on 5.1.1987the appeal was allowed. The 4th respondent management and thesaid Anthonysamy challenged the said order of the Director ofSchool Education dated 5.1.1987 before this Court in W.P.Nos.581and 630 of 1987 and this Court by order dated 12.2.1987, setaside the order of the Director of School Education dated5.1.1987 and remitted the matter back to the Director of SchoolEducation with a direction to hear all the parties and decide thecase on merits.(b)The Joint Director of School Education, who is thecompetent authority, by orders dated 26.10.1987 and 11.11.1987gave a finding that the said Anthonysamy was not a qualifiedperson to be promoted as Headmaster and directed the managementto promote the petitioner as Headmaster. The said order of theJoint Director of School Education was challenged by the 4threspondent in W.P.No.11863 of 1987 and this Court dismissed thesaid writ petition, against which the management and the saidAnthonysamy filed W.A.Nos.331 and 590 of 1988 respectively beforethis Court. At the time of final hearing, the writ appeals werewithdrawn. The Division Bench, while permitting withdrawal ofthe writ appeals, directed the management and the said https://hcservices.ecourts.gov.in/hcservices/ Anthonysamy to file revision before the Commissioner andSecretary, Education Department, Government of Tamil Nadu.(c)Thereafter revision was filed by the said Anthonysamybefore the Secretary to Government, Education Department,Government of Tamil Nadu. The Government, after hearing therevision, dismissed the same by G.O.Ms.No.623 EducationDepartment, dated 31.5.1991 and upheld the order of the JointDirector of School Education.(d)It is the case of the appellant that thereafter insteadof promoting the appellant, one Rafia Begum was promoted asHeadmistress and according to the appellant the said Rafia Begumis also unqualified to be promoted as Headmistress. Thereforethe appellant preferred appeal before the Joint Director ofSchool Education (Higher Secondary) and the Joint Director byorder dated 8.8.1994 held that the said Rafia Begum isunqualified and cancelled the promotion order issued in herfavour. The Joint Director ultimately directed the management topromote a fully qualified person as Headmistress. The said RafiaBegum filed a revision before the Government which was alsorejected by G.O.Ms.No.230 Education Department dated 22.3.1995.(e)According to the appellant, he being the seniormostPost Graduate Teacher, he was given additional charge asHeadmaster whenever the Headmaster of the school went on leave.The grievance of the appellant is that the 4th respondentmanagement has not filled up the Headmaster post from 1.6.1985 bya fully qualified person.(f)It is further stated that though the writ petition wasfiled in April 1995, the petitioner reached the age ofsuperannuation on 31.8.1995. The request of the appellant to re-employ him till the end of the academic year i.e., till 31.5.1996was also rejected and the said order was challenged by theappellant in a separate writ petition in W.P.No.13392 of 1995,which was also dismissed by the learned single Judge againstwhich W.A.No.1226 of 2003 has been filed and we are dealing withthe said writ appeal separately.3.First respondent herein, who is the third respondent inthe writ petition filed counter affidavit wherein it is statedthat after allowing the appeal filed by the appellant challengingthe order of promotion given to Rafia Begum, a direction wasgiven to the management to appoint fully qualified teacher asHeadmaster in accordance with rules and no specific direction wasgiven to appoint the appellant as Headmaster of the School andthat the appellant having retired and having been relieved on31.8.1995, the first respondent prayed for dismissal of the writpetition.4.The 4th respondent management filed counter affidavitwherein it is contended that the appellant was found unsuitablefor the post of Headmaster by the Management and hence he was not https://hcservices.ecourts.gov.in/hcservices/ promoted to the said post. The claim of the appellant forpromotion was considered in accordance with rule 15(4) of theTamil Nadu Recognised Private Schools Regulation Rules, 1974.Further the appellant was found guilty of five charges and he wasawarded the punishment of withholding one increment for one yearwithout cumulative effect by order dated 6.11.1993 and the appealfiled by the appellant against the said punishment was alsodismissed by the Joint Director of School Education by orderdated 18.8.1995 and the said order has become final as theappellant has not chosen to challenge the same thereafter. It isalso stated in the counter affidavit that the earlier promotionof the said Anthonysamy and subsequent promotion of Rafia Begumwere not accepted by the department as they are not fullyqualified and thereafter they were reverted. On 13.5.1985, theSchool Committee which is the competent authority for makingpromotions, considered the merit and eligibility of sixP.G.Assistants including the appellant herein. The claim of theappellant having been considered, the appellant cannot have anyfurther grievance that he was not selected. It is also contendedin the counter affidavit that the Joint Director of SchoolEducation (Higher Secondary) while allowing the appeal of theappellant directed the management to appoint a fully qualifiedperson as Headmaster and no positive direction was given toappoint the appellant as Headmaster and such a direction cannotbe issued in the light of rule 15(4)(a) of the Tamil NaduRecognised Private Schools Regulation Rules, 1974 as the SchoolCommittee is the competent authority to select and appoint theHeadmaster. It is also contended in the counter affidavit thatthe petitioner was given the Assistant Headmaster post based onseniority since the Assistant Headmaster post can be filled upmerely on seniority and not on selection as per Government Orderand merely because the appellant was given the post as AssistantHeadmaster (PG Cadre) he has no right to claim the same as aground to promote him to the post of Headmaster. 5.The learned single Judge relying on Rule 15(4) of theTamil Nadu Recognised Private Schools Regulation Rules, 1974 heldthat the action of the management in promoting the unqualifiedperson as Headmaster was disapproved by the management, but thatwill not give recognition of the appellant to claim the right tohold the post.6.The learned Senior Counsel appearing for the appellantargued that the appellant is victimised and his claim waserroneously negatived by the management and by virtue ofrejection of his lawful claim, even though he retired on31.8.1995, if he gets a direction to be promoted as Headmaster,at least he will get monitory benefits and revision of pensionand hence the appellant is justified in prosecuting the writappeal and prayed for allowing the writ petition. https://hcservices.ecourts.gov.in/hcservices/

7.The learned counsel for the 4th respondent managementcontended that the claim of the appellant was considered as earlyas in 1985 and he was found not eligible to hold the post ofHeadmaster and the post being a selection post the appellant hasno right to claim the post as a matter of right merely because heis senior-most Post Graduate Teacher in the School.8.The learned Government Advocate submitted that theappellant was not promoted as Headmaster at any point of time andtherefore he cannot claim the salary of Headmaster as well asrevision of pay and pension after retirement as early as on31.8.1995.9.We have considered the rival submissions and also theorder of the learned single Judge.10.The point in issue is whether the appellant who was notpromoted as Headmaster by the 4th respondent management isentitled to claim salary in the post of Headmaster and whether heis entitled to get revision of pension from 1.9.1995.11.Rule 15 of the Tamil Nadu Recognised Private SchoolsRegulation Rules, 1974, deals with the qualifications, conditionsand services of the Teachers and other persons employed in theprivate schools. As per Rule 15(4)(i), promotion shall be madeon the grounds of merit and ability, and only when the merit andability are approximately equal, seniority is to be considered.Further, it is stated that while making appointments to variouscategories of teachers the school management shall follow thefollowing methods,(i)Promotion among the qualified teachers in thatschool.(ii)If no qualified and suitable candidate isavailable by method(i) above,(a)Appointment of other persons employed inthat school, provided theyare fully qualifiedto hold the post ofteachers.(b)Appointment of teachers from any otherschool.(c)Direct recruitment.From the perusal of the above rule it is clear that the post ofHeadmaster is a selection post and the selection is based onmerit and ability. Seniority will be considered only when themerit and ability are approximately equal. The 4th respondentconsidered the merit and ability of the appellant along with fiveothers as early as on 13.5.1985 and found that the petitioner isnot fit to be promoted as Headmaster of the School. It is truethat the selection of one Anthonysamy originally made and the https://hcservices.ecourts.gov.in/hcservices/ subsequent promotion of Rafia Begum were not approved by thedepartment on the ground that the said persons were not qualifiedfor being promoted as Headmaster/Headmistress of the School. Solong as the discretion is vested with the School Committee toappoint teachers and other persons under section 18(b) of theTamil Nadu Recognised Private Schools Regulation Act, 1973, thediscretion exercised by the 4th respondent management in notselecting the appellant for the post cannot be treated asinvalid. The department only found that the appointment made inrespect of two others viz. Anthonysamy and Rafia Begum are notproper and a further direction was issued to appoint a fullyqualified person.12.Admittedly the appellant was not selected and promotedas Headmaster of the School and he was only Assistant Headmaster(PG grade), for which he was paid salary also. To claim thesalary of the post of Headmaster, the appellant should have beenappointed and worked in that post. Though the appellant wasgiven in-charge of the post of Headmaster for certain period,that is during the period of leave taken by the Headmaster, hecannot claim that he should be given the scale of pay of the postof Headmaster, particularly when he received the salary of PGAssistant along with the special pay for having held the post ofAssistant Headmaster and further having retired from service asPG Assistant on 31.8.1995 with the designation of AssistantHeadmaster.13.(a) The Honourable Supreme Court, in the decisionreported in AIR 1966 SC 1547 (State of Orissa v. Durga CharanDas) considered similar rule with regard to promotion by way ofselection and in para 6 held as follows,"6.The Rule in question protects theconditions of service as respects pay,allowances, leave and pension of the membersfalling under its purview, and it guaranteesthat in no case shall the terms in relationto the said conditions of service be lessfavourable than they were immediately beforethe 1st of April, 1936. The question is: doany of the conditions specified in R.6include a claim for promotion to a higherselection post and confirmation in it ? Itis well known that promotion to a selectionpost is not a matter of right which can beclaimed merely by seniority. Normally, inconsidering the question of a publicservant's claim for promotion to a selectionpost, his seniority and his merits have to beconsidered; and so, it seems to us verydifficult to accept the view taken by theHigh Court that in R.6 of the ProtectionRules, a guarantee can be inferred in regard https://hcservices.ecourts.gov.in/hcservices/ to promotion to a selection post. What theRule guarantees is that the public servantswho were transferred to Orissa will notsuffer in regard to their pay, allowances,leave and pension; and these respectiveconditions do not seem to include a claim forpromotion to a higher selection post; andindeed, it seems very unlikely that anyprotection could ever have been reasonablyintended to be given in regard to promotionto a selection post."(b) In AIR 1967 SC 1910 (Sant Ram v. State of Rajasthan),the Honourable Supreme Court in para 6 held thus,"6.......... we are of the opinionthat the three posts of Inspector General ofPolice, Additional Inspector General ofPolice and Deputy Inspector General of Policein Rajasthan State are selection posts andoutside the junior or senior time-scales ofpay. If these three posts are selectionposts it is manifest that the State ofRajasthan is not bound to promote thepetitioner merely because he stood first inthe Gradation List. The circumstances thatthese posts are classed as 'Selection GradePosts' itself suggests that promotion tothese posts is not automatic being made onlyon the basis of ranking in the Gradation Listbut the question of merit enters in promotionto selection posts. In our opinion, therespondents are fight in their contentionthat the ranking or position in the GradationList does not confer any right on thepetitioner to be promoted to selection postand that is a well-established rule thatpromotion to selection grades or selectionposts is to be based primarily on merit andnot on seniority alone. The principle isthat when the claims of officers to selectionposts is under consideration, seniorityshould not be regarded except where the meritof the officers is judged to be equal and noother criterion is, therefore,available. ........."(c)In the decision reported in (2001) 5 SCC 60 (CentralCouncil for Research in Ayurveda & Siddha v. Dr.K.Santhakumari)in para 12, the Honourable Supreme Court held as follows,"12.In the instant case, the selectionwas made by the Departmental PromotionCommittee. The Committee must have https://hcservices.ecourts.gov.in/hcservices/ considered all relevant facts including theinter se merit and ability of the candidatesand prepared the select list on that basis.The respondent, though senior in comparisonto other condidates, secured a lower place inthe select list, evidently because theprinciple of "merit-cum-seniority" had beenapplied by the Departmental PromotionCommittee. The respondent has no grievancethat there were any mala fides on the part ofthe Departmental Promotion Committee. Theonly contention urged by the respondent isthat the Departmental Promotion Committee didnot follow the principle of "seniority-cum-fitness". In the High Court, the appellantsherein failed to point out that the promotionis in respect of a "selection post" and theprinciple to be applied is "merit-cum-seniority". Had the appellants pointed outthe true position, the learned Single Judgewould not have granted relief in favour ofthe respondent. If the learned counsel hasmade an admission or concession inadvertentlyor under a mistaken impression of law, it isnot binding on his client and the same cannotensure to the benefit of any party."(d)In the decision reported in (2003) 6 SCC 535 (DwarakaPrasad v. Union of India) in para 24 the Honourable SupremeCourt considered the scope of Articles 14 and 16 in the matter ofpromotion and held thus,"24.Articles 14 and 16 of theConstitution of India cannot be pressed intoservice to describe the fixation of lowerquota for POs as discriminatory. It is wellestablished in law that the right to beconsidered for promotion on fair and equalbasis without discrimination may be claimedas a legal and a fundamental right underArticles 14 and 16 of the Constitution butchances of promotion as such cannot beclaimed as of right. ....................."14.It could be seen from the counter affidavit that on13.5.1985, the School Committee assessed the merit and ability ofall the six candidates including that of the appellant and alsothe past conduct of the appellant including the punishmentimposed. According to the management, the appellant is not fitto be promoted as Headmaster of the School and it is the decisiontaken by the School Committee, who is the competent authorityunder the Act. A similar issue arose before a Division Bench of https://hcservices.ecourts.gov.in/hcservices/ this Court in the decision reported in 2002 WLR 81 (S.P.Jalaja v.Karapettai Nadar Girl Higher Secondary School & Ors.) whereinalmost in identical circumstances the appellant therein was notgiven promotion as Headmistress, which was also challenged by theappellant repeatedly and ultimately the Division Bench in para 15upheld the contention of the School Committee that merit andability of all the candidates were assessed and the appellanttherein was found not suitable. The Division Bench in para 15held as follows,"....... As rightly pointed out by thelearned counsel, the School Committee alsotook into account the entire service careerof the candidates who had applied for thehigher post. The Headmistress of the Schooloccupies an unique position and she is thelinchpin around and the school activitiesrevolve around her and she should have fullconfidence of the teachers, pupils, schoolauthorities and must have administrativecontrol, managerial skill, financial controlover the funds of the school and she mustsecure full and unstinted co-operation fromteachers and pupils for the past performanceof the school. Needless to mention, anydeficiency on the part of the Headmistresswould reflect not upon the individualmembers, but would reflect on the institutionitself."15.In view of the settled legal position and in the lightof Rule 15(4) of the Tamil Nadu Recognised Private SchoolsRegulation Rules, 1974, the claim of the appellant that he shouldbe retrospectively given promotion with monitory benefits isunsustainable and we hold that the order of the learned singleJudge in dismissing the writ petition is in conformity with Rule15 of the Rules.16.We do not find any merit in the writ appeal andconsequently the writ appeal stands dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vr/ https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary and Commissioner,Education Department,Government of Tamil Nadu,Fort St.George, Madras - 600 0092.The Director of School Education, College Road, Madras - 600 0063.The Joint Director (Higher Secondary), College Road, Madras - 600 006.4.The Chief Educational Officer, Anna Salai, Madras - 2.5.The District Educational Officer, Madras South, Egmore,Madras - 8.1 cc tio Mr.k. Vaidyanathan, Advocate, Sr. 10681 cc to Mr.S. chandrasekaran, Advocate, Sr. 9391 cc to A.V.K. Ezhilmani, Advocate, sr. 9171 cc to the Governemnt Pleader, Sr. 1256W.A.No.1225 of 2003 TS (CO)kk 12/1