M.Muruganandam v. The Government of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.01.2009CORAM:THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR.JUSTICE K.K.SASIDHARANWrit Appeal No.868/2006M.Muruganandam...AppellantVs.

The Government of Tamil Nadu, rep. by the Secretary, School Education Dept.,Fort St.George, Chennai-9.

The Joint Director, Higher Secondary,D.P.I.College Road, Chennai-6.

The Correspondent, Singaram Pillai Girls'Higher Secondary School, Villivakkam, Chennai-49.

Mrs. Beulah Masilamani,Z, 20, Anna Nagar, Chennai-40....RespondentsAppeal filed under clause 15 of the letters patent against the order passed by this Court dated 07.04.2004 passed inW.P.No.13911/1998. Presented to this Court under Article 226 of the constitution of India to issue a writ of certiorari calling for the records relating to the proceedings of the first respondent dated 17.8.1998 and made in G.O.Ms.2(D) 120 SchoolEducation (M.N.K.1) allowing the Revision petition filed by the fourth respondent as against the order of second respondent andmade in proceedings No. M.M.No.169243/W8/9 dated 9.11.1992 and quash the order of the first respondent dated 17.8.98 as illegal and without jurisdiction. For appellant : Mr.S.VaidyanathanFor Respondents : Mr.G.Desingu, Spl.G.P. (Edu.) for respondents 1 and 2. No appearance for respondents 3 and 4 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TK.K.SASIDHARAN, J.This writ appeal is directed against the order dated07.04.2004 in W.P.No.13911/1998 in and by which, the learnedSingle Judge dismissed the Writ Petition preferred by the appellant, challenging the order passed by the first respondent in respect of the appointment of the fourth respondent as Headmistress of the third respondent School.

The order dated 09.11.1992 was challenged by the thirdRespondent in a statutory appeal before the City Civil Court, Chennai, in C.M.A.No.1/1993 and during the pendency of the said appeal, the fourth Respondent approached the Government with arevision petition and the First respondent held that as perG.O.Ms.No.1502 Education dated 23.09.1988, the impugned rules came into force only in the year 1988 but whereas the appointment of the fourth Respondent was made in 1985 and as such, rule 15(4)(1)would not apply in the case of the fourth Respondent and as such, the order passed by the Appellate Authority was illegal and accordingly, it was set aside. Aggrieved by the said order, the petitioner has filed the Writ Petition.

In the counter affidavit filed by the fourth Respondent, it was contended that she was promoted as Headmistress on the basis of her merit, ability and seniority, in accordance withG.O.Ms.No.720 Edn. Department dated 28.04.1981 and the saidGovernment Order alone governed the appointment of Headmistress at the relevant point of time. It was the further contention of the fourth Respondent that the Government Order granting corporate status to the third Respondent as per G.O.Ms.No.836 dated27.06.1984 was withdrawn as per G.O.(3D)No.15 dated 17.08.1998.According to the fourth Respondent, rule 15(4)(1) of the TamilNadu Recognized Private School (Regulation) Rules were not applicable to the appointment of the petitioner as Headmistress on06.02.1985.

The learned Single Judge found that amendment to Rule 15(4)(1) of the rules by inserting sub-clause (d), came to be made only as per G.O.Ms.No.1502 dated 23.09.1988 and it was only through the said amendment, separate provision for appointment to the post of Headmaster of the Higher Secondary School came to be introduced. The learned Single Judge further found that the merit and ability of the teacher alone was considered for promotion to the post of Headmistress of the third respondent institution which admittedly is a Girls High School. The learned Judge was of the opinion that during the relevant period, the required qualification for the post of Headmistress was either B.T. or B.Ed. or its equivalent and only on 02.03.1990, amendment came to be introduced in the qualification for appointment as teachers in Higher SecondarySchools, wherein, it was specified that one should hold a MastersDegree for teaching in any of the languages under parts I and IIor subjects under Part III Group 'A' of the syllabus for HigherSecondary School. Accordingly, the learned Judge held that communication of the Director of School Education dated 03.05.1984cannot override the statutory rules and accordingly, rejected the https://hcservices.ecourts.gov.in/hcservices/ contention of the appellant and ratified the appointment of the fourth Respondent as Headmistress of the third RespondentInstitution. Submissions of counsel for the appellant :-

Mr.S.Vaidynanathan, learned Counsel appearing for the Appellant contended that the third Respondent was granted the status as a corporate body as per G.O.Ms.No.836 dated 27.06.1984and as such, a common seniority list has to be maintained by the institution. According to the learned Counsel, it was only the appellant who stood first in the seniority list and disregarding his claim for appointment as Headmaster, the fourth Respondent was appointed and the same was in clear violation of the statutory requirements as provided in Rule 15(4)(1) of the Tamil NaduRecognized Private Schools (Regulation) Rules, 1974. According to the learned Counsel, the matter was clarified by the EducationDepartment as per letter dated 16.03.1988 that the orders issued in G.O.Ms.No.836 dated 27.06.1984 will prevail over G.O.Ms.No.720Education dated 28.04.1981 and as such, even in respect of women institutions, seniority should be followed taking into account the claim of men also. The learned Counsel by placing reliance on the counter affidavit filed by the Education Department inW.P.No.13083/1988 contended that there was a clear admission by the Department that the appointment of the fourth Respondent as Headmistress was not in order and it was not as per Rules and as such, in the face of the categorical admission made by the Education Department, it was not open to the first Respondent to set aside the order of the Appellate Authority by concluding that the appointment of the fourth Respondent was perfectly valid. Analysis :-

The case of the appellant mainly concentrates on the orders of Government in G.O.Ms.No.836 dated 27.06.1984 wherein it was specified that all schools run by Singaram Pillai School Societyshould be treated as a single unit for the purpose of promotion. Though there was an earlier Order issued by the Government inG.O.Ms.No.720 dated 28.04.1981 the same was not considered by the Appellate Authority in view of the clarificatory letter issued by the Government dated 16.03.1988 to the effect that G.O.Ms.No.836dated 27.06.1984 would prevail over G.O.Ms.No.720 dated28.04.1981.

The provisions of Tamil Nadu Recognized Private Schools(Regulation) Rules, 1974 were extended to the Private HigherSecondary Schools receiving aid, only by way of amendment inG.O.Ms.No.1502 dated 23.09.1988. Therefore, the appointment of the fourth Respondent was only in accordance with the prevailingGovernment Order in G.O.Ms.No.720 dated 28.04.1981. It is true that corporate status was granted to the third Respondentmanagement as per G.O.Ms.No.836 dated 27.06.1984 and as per the https://hcservices.ecourts.gov.in/hcservices/ said order, all schools run by the Management had to be treated asa single unit for the purpose of promotion. The orders of the Government in G.O.Ms.No.720 was sought to be diluted by way of letter issued by the Deputy Secretary to the Government dated16.03.1988 wherein it was indicated that the orders inG.O.Ms.No.836 dated 27.06.1984 would prevail over G.O.Ms.No.720dated 28.04.1981. It was only by way of the said clarificatoryletter that it was specified that even in respect of women institutions, seniority would have to be followed taking into account the claims of men.

The executive instructions issued under Article 166 of the Constitution of India cannot be taken away by way of clarificatoryletters issued by an official of the Government and so long asG.O.Ms.No.720 dated 28.04.1981 was not cancelled or withdrawn, the directions as contained in the said Government Order has to be respected. In any case, G.O.Ms.No.720 has to be read harmoniously with G.O.Ms.No.836 dated 27.06.1984 and on a conjoint reading of both the Government Orders, it is clear that the operation of common seniority list was subject to the provisions ofG.O.Ms.No.720 and as such, women have to be preferred for appointment as Headmistress in Girls Schools. The impugned appointment was made during the academic year 1984-85 and as on that date, the amendment provisions of Rule 15(4)(1) and other rules were not extended to the private higher secondary schools and as such, the revisional authority was perfectly correct in their conclusion that the appointment of the fourth Respondent as Headmistress should be examined not under the provisions of TamilNadu Recognized Private Schools (Regulations) Rules, but only under the provisions of G.O.Ms.No.720 dated 28.04.1981.

In any case, we are of the opinion that both the Government Orders G.O.Ms.No.836 dated 27.06.1984 and G.O.Ms.No.720dated 28.04.1981 have to be read together and the position is clear that even if a male candidate was senior, woman candidate has to be preferred in case appointment was sought to be made in aGirls High School.

In Vijay Lakshmi v. Punjab University (JT 2003(8) SC 259),the issue before the Supreme Court was in respect of reservation in favour of women for being appointed as Principal of GovernmentCollege for Women and after considering the policy decision of reservation for females and right to equality, the Hon'ble SupremeCourt held that sex is a sound basis for classification and Article 15(3) categorically empowers the State to make special provision for Women and Children and held thus:-"5. In the light of the aforesaid principles, on the concept of equality enshrined in the Constitution, it can be https://hcservices.ecourts.gov.in/hcservices/ stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. If separate colleges or schools for girls are justifiable, rules providing appointment ofa lady Principal or teacher would also be justified.

Therefore, we are of the considered opinion that the learned Single Judge was perfectly correct in his conclusion that the appointment of the fourth Respondent as Headmistress was valid. https://hcservices.ecourts.gov.in/hcservices/