R. Jeeva v. The Director of Elementary Education, College Road, Madras – 6 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31-07-2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION NO.4947 OF 2001R. Jeeva...PetitionerVs.1.The Director of Elementary Education,College Road, Madras – 6.2.The District Elementary Educational Officer,Madurai, Madurai District.3.The Assistant Elementary Educational Officer,T.Kallupatti, Madurai District.4.S. Geetha Ramani5.The Secretary, Sri.V.K.V.Salai Middle School,Kopinayakkan Patti, T.Kallupatti,Periyar Taluk, Madurai District....RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of certiorarified mandamuscalling for the records of the first and second respondents inrelation to O.M.No.40341/EG2/2000, dated 16.2.2001 and inN.K.No.10712/A2/2000 dated 29.12.2000 respectively and quash the sameand consequently issue a direction to the first and secondrespondents to approve the petitioner's promotion as Middle SchoolHeadmaster in the 4th respondent management school with effect from16.11.2000 with service and monetary benefits.For Petitioner : Mr.R.SaseetharanFor Respondents 1 to 3:Mr.K.Balakrishnan,Addl. Govt. PleaderFor 4th Respondent :Mr.R.GovindarajFor 5th Respondent :Mr.S.Senthilnathan https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe prayer in this writ petition is to quash the order dated29.12.2000, passed by the second respondent and the order dated16.2.2001, passed by the first respondent, and direct therespondents 1 and 2 to approve the petitioner's promotion as MiddleSchool Headmaster in the 5th respondent School with effect from16.11.2000, with monetary and service benefits.2.The case of the petitioner is as follows:(a)Petitioner was appointed as Secondary Grade Teacher on15.11.1990 in the 5th respondent management School and the saidappointment was approved by the educational authorities. The 5threspondent School is a Private Aided Recognised School, governedunder the provisions of the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973, and the Rules framed thereunder.(b)Petitioner passed B.A. Degree in the year 1994 and B.Ed inthe year 1996. She has also passed M.A. Degree. According to thepetitioner, she having completed more than five years of experienceas Teacher, she is entitled to be promoted as Middle SchoolHeadmistress in the 5th respondent management School in the vacancyarose from 1.6.1996, in terms of Rule 15(4) of the Tamil NaduRecognised Private Schools (Regulation) Rules, 1974 (hereinafterreferred to as 'the Rules').(c)The 5th respondent School filled up the post by appointingone S.Subbanandan, by order dated 23.6.1996, through directrecruitment. The 5th respondent failed to get prior permission tofill up the post by direct recruitment, which is required under Rule15(4) of the Rules, particularly when qualified candidates areavailable in the 5th respondent School itself for being promoted asHeadmaster.(d)The said order dated 23.6.1996 was challenged by thepetitioner in W.P.No.8843 of 1997 before this Court. The 4threspondent also filed W.P.No.9915 of 1996 and challenged the verysame order dated 23.6.1996. Both the writ petitions were partlyallowed by common order dated 22.9.2000 and the management wasdirected to fill up the post of Headmaster in accordance with therules within three months.(e)The petitioner submitted representation to the managementon 11.10.2000 stating that she is eligible for being promoted asHeadmistress. The management assessed the merit and ability of thepetitioner and 4th respondent and by resolution dated 16.11.2000,selected the petitioner and the petitioner was promoted and appointedas Headmistress by order dated 16.11.2000. The petitioner alsojoined in the said post on 20.11.2000. https://hcservices.ecourts.gov.in/hcservices/ (f)The 5th respondent submitted proposal for approval of thepromotion and appointment of petitioner as Headmistress before thesecond respondent on 6.12.2000. The second respondent by proceedingdated 29.12.2000 stated that no document was produced to prove thatthe 4th respondent is less meritorious. Further the 4th respondent issenior than the petitioner.(g)The management filed appeal before the first respondent bycontending that the order passed by the second respondent is inviolation of Rules 15(4) and 15(6), Annexure-V of the Rules, andtherefore the second respondent was not right in relying uponG.O.Ms.No.400, Education Science and Technology Department, dated25.5.1995. The first respondent rejected the appeal filed by themanagement on 16.2.2001.(h)Having aggrieved over the said orders passed by the secondrespondent dated 29.12.2000, confirmed by the first respondent byorder dated 16.2.2001, the petitioner has filed the present writpetition contending that the impugned orders are in violation of Rule15(4), as well as the common order passed by this Court inW.P.Nos.9915 of 1996 and 8843 of 1997 dated 22.9.2000 as the rulecontemplates selection of Headmaster on the ground of merit andability, and seniority can be considered only when merit and abilityare approximately equal. It is also contended that the secondrespondent was not justified in relying upon G.O.Ms.No.400 Education,Science and Technology Department, dated 25.5.1995 while statutoryrule viz., Rule 15(4) and 15(6) will prevail over any executiveinstructions issued by the Government. The School Committee havingexercised its powers in terms of the above said rules, it is not opento the respondents 1 and 2 to disapprove the same and give directionto appoint the 4th respondent as Headmistress.3.The second respondent filed counter affidavit by statingthat the 5th respondent management considered the interse claims ofthe petitioner and the 4th respondent, giving weightage to theirexperience as well as extra curricular activities and not consideredthe seniority. The 4th respondent is the senior-most secondary gradeteacher and she should have been appointed as Headmistress instead ofthe petitioner, in accordance with G.O.Ms.No.400 Education Scienceand Technology Department, dated 25.5.1995, wherein the Governmentordered to give preference to the seniority while giving promotion.The second respondent has taken into account Rule 15(4) as well asG.O.Ms.No.400, dated 25.5.1995, as well as the fact that thepetitioner was originally appointed as Full Time VocationalInstructor and appointed as Secondary Grade Teacher only on18.12.1991, and that, in the cadre of Secondary Grade, the 4threspondent is senior than the petitioner.4.The 4th respondent filed counter affidavit by stating thatwhen the vacancy arose in the 5th respondent School, the petitioner https://hcservices.ecourts.gov.in/hcservices/ did not possess the requisite qualification of five years of teachingexperience as secondary grade teacher and she also had not passedB.Ed degree by then. The petitioner completed five years of serviceas secondary grade teacher only on 14.11.1995 and acquired B.Eddegree only in December, 1995. The vacancy having arose with effectfrom 1.6.1995, the 4th respondent was the fully qualified personavailable in the school, eligible to be promoted. The 4th respondentwas appointed as Vocational Instructor in the 5th respondent School on18.6.1979, acquired B.Ed qualification in the year 1992, and wasposted as Secondary Grade Teacher in the 5th respondent School on18.12.1991. It is also stated in the counter affidvit that on thedate of vacancy, she being fully qualified, she ought to have beenconsidered by the 5th respondent management, however directrecruitment was made, which was set aside by this Court. It is alsostated that the qualifications and merits of the contending teacherswere not properly considered and in fact the proof of the 4threspondent's qualifications have not been verified and only on8.1.2001 the 4th respondent was directed to produce all the documentspertaining to educational qualifications and therefore on 16.11.2000the School Committee could not have compared the merit and ability ofthe petitioner as well as 4th respondent. It is also stated in thecounter affidavit that in the School Committee resolution dated16.11.2000 it is wrongly stated that the 4th respondent passed B.A.and B.Ed degrees in two attempts, whereas the petitioner passed B.A..and B.Ed. degrees in single attempt in first class, both in theoryand practical. Thus, it is contended by the 4th respondent that theSchool Committee has not applied its mind at all while assessing themerit and ability of the contending parties and the same is inviolation of Rule 15(4) of the Rules. It is also contended that theSchool Committee of the 5th respondent School was also notconstituted in accordance with Rule 12(3) of the Tamil NaduRecognised Private Schools (Regulation) Rules, 1974.5.The 5th respondent filed counter affidavit by contendingthat the promotion order given to the petitioner was not approved bythe second respondent relying G.O.Ms.No.400 Education, Science andTechnology Department, dated 25.5.1995 and the management filedappeal before the first respondent on 31.1.2001 and the same was alsorejected by the first respondent, which is contrary to Rule 15(4) and15(6) of the Rules. The management considered the merit and abilityof the petitioner and the 4th respondent on 16.11.2000 and the SchoolCommittee considered the claim of all the eligible persons, which wasordered to be considered by the order of this Court dated 22.9.2000.The petitioner as well as the 4th respondnet were found eligible withrespect to qualifications including experience. The power ofselection having been vested with the School Committee, therespondents 1 and 2 have no jurisdiction to give direction to themanagement to promote the 4th respondent as Headmistress based onseniority alone. In effect, the 5th respondent supports the case ofthe petitioner. https://hcservices.ecourts.gov.in/hcservices/

6.Reply affidavit was filed by the petitioner stating that onthe date of consideration of the claims of the petitioner and the 4threspondent, petitioner was fully qualified. The direction issued bythe first respondent through the impugned order dated 16.2.2001 iscontrary to the provisions of the Tamil Nadu Recognised PrivateSchools (Regulation) Rules, 1974.7.The learned counsel appearing for the petitioner submittedthat the impugned orders are unsustainable as the respondents 1 and 2have no jurisdiction to give direction to the 5th respondent to selectand promote the 4th respondent as Headmistress on the basis of theseniority. The Constitution of the School Committee of the 5threspondent School is valid since the amendment issued to Rule 12(3)of the Rules was stayed by this Court and only on 11.12.2003 theamendment was upheld by the Division Bench of this Court in thedecision reported in 2004 (1) LW 324 (The Coimbatore District AidedSecondary and Higher Secondary School Managements' Association v.State of Tamil Nadu & Others) and therefore the 4th respondent cannotcontend that the School Committee functioned in the year 2001 was notin accordance with Rule 12(3). The learned counsel further submittedthat this Court by common order dated 22.9.2000 having givendirection to the management to fill up the post of the Headmaster inaccordance with rules within three months, the date of vacancy isimmaterial and the cause of action to fill up the post of Headmasterof the school arose within three months from 22.9.2000. The learnedcounsel also submitted that the petitioner is serving as Headmistressall these years and she is paid only secondary grade scale of pay dueto non-approval of the Headmistress post.8.The learned counsel appearing for the 4th respondentsubmitted that the School Committee while allegedly assessing themerit and ability of the petitioner and the 4th respondent, haderroneously gave a finding that the 4th respondent passed B.A. andB.Ed., degrees in second attempt and the petitioner has passedB.A.,B.Ed., and M.A.,M.Ed., degrees in first attempt. The saidfinding is contrary to the educational degrees awarded to the 4threspondent. In support of his contention the learned counselproduced the provisional certificate of B.A. Degree dated 19.8.1994and B.Ed degree dated 15.12.1994, both issued by the Madurai KamarajUniversity. Thus the School Committee has assessed the merit andability even without having the certificates of the petitioner andthe 4th respondent. The learned counsel also pointed out the stand ofthe 5th respondent in the counter affidavit that the certificates ofthe 4th respondent were called for on 8.1.2001. The learned counselultimately submitted that the said fact clearly establishes thecasual and lethargic manner in which the merits and ability of thepetitioner and the 4th respondent were assessed.9.The learned counsel for the 5th respondent submitted thatthe merits and ability of the petitioner as well as the 4th respondent https://hcservices.ecourts.gov.in/hcservices/ were assessed by the School Committee properly and considered and thepetitioner was found more meritorious than the 4th respondent andtherefore the School Committee passed resolution to promote thepetitioner as Headmistress and there is no illegality in the saidorder.10.Heard the learned Additional Government Pleader also forthe respondents 1 to 3.11.I have considered the submissions made by the learnedcounsel appearing for the petitioner as well as learned counselsappearing for the respective respondents.12.The point for consideration in this writ petition is,whether the 5th respondent management school has complied with theearlier common order dated 22.9.2000, passed by this Court inW.P.Nos.9915 of 1996 and 8843 of 1997 and followed Rule 15(4) of theTamil Nadu Recognised Private Schools (Regulation) Rules, 1974.13.The petitioner as well as the 4th respondent filed the abovewrit petitions and challenged the appointment of one S.Subbanandan asHeadmaster of the 5th respondent School. Taking note of the Rules 15(4) and 15(6) of the Tamil Nadu Recognised Private Schools(Regulation) Rules, 1974, which are admittedly governing the fillingup of the promotion post in the 5th respondent private aided School,this Court ordered that the claims of the petitioners in those casesviz., writ petitioner and the 4th respondent herein, shall beconsidered on merits and in accordance with the statutory provisions.The writ petition was allowed by setting aside the promotion given tothe said S.Subbanandan as Headmaster of the 5th respondent School byproceeding dated 23.6.1996 and the School was directed to fill up thepost of Headmaster in accordance with the Rules, within three months.14.Rule 15(4) of the Tamil Nadu Recognised Private Schools(Regulation) Rules, 1974, reads as follows:"Rule 15(4) (i)Promotion shall be made ongrounds of merit and ability seniority beingconsidered only when merit and ability areapproximately equal.(ii)Appointments to the various categoriesof teachers shall be made by the followingmethods:-(i) Promotion among the qualified teachers inthat school.(ii) If no qualified and suitable candidate isavailable by method (i) above,- https://hcservices.ecourts.gov.in/hcservices/ (a)Appointment of other persons employed inthat school, provided they are fully qualified tohold the post of teachers.(b)Appointment of teachers from any otherschool.(c)Direct recruitment.In the case of appointment from any otherschool or by direct recruitment, the SchoolCommittee shall obtain the prior permission of theDistrict Educational Officer in respect of Pre-Primary, Primary and Middle School and that of theChief Educational Officer in respect of HighSchools and Higher Secondary Schools, TeacherTraining Institutions setting out the reasons forsuch appointment. In respect of corporate bodyrunning more than one school, the schools underthat body shall be treated as one unit for purposeof this rule.(d)Appointment to the post of Headmaster ofHigher Secondary School shall be made by themethod specified in clause (ii) either from thecategory of Headmasters of High Schools orTeachers Training Institutes or from the categoryof Post Graduate Assistants in academic subjectsor Post-Graduate Assistants in Languages providedthey possess the prescribed qualifications." The above said Rule clearly establishes the fact that promotion shallbe made on the basis of merit and ability and seniority will beconsiderd only when merit and ability are approximately equal andwhile assessing the merit and ability of the candidates, the SchoolCommittee is bound to record the merits and demerits of thecandidates i.e, the Committee resolution must show that the selectedcandidate is more meritorious and superior in ability than theperson, who is not selected.(a)The said position is explained in the Division BenchJudgment of this Court reported in (1994) 1 MLJ 130 (Jeyaselvi v.Government of Tamil Nadu). The writ appeal before the Division Bencharose against the order of the learned single Judge cancelling theselection on the ground that merit and ability of each of thecandidates were not assessed and recorded by the School Committee.The contention of the appellant therein was that the School Committeehaving found the appellant as superior in merit and ability than theother candidate, the learned single Judge ought not to have set asidethe promotion and remit the matter for fresh consideration to recordreasons. Negativing the said contention in paragraph 4 the DivisionBench held as follows: https://hcservices.ecourts.gov.in/hcservices/ "4........... In this regard, it may bepointed out that Sub-rule (4) of Rule 15 of theTamil Nadu Recongnised Private Schools(Regulation) Rules (1974) specifically states thatpromotions shall be made on grounds of merit andability, seniority being considered only whenmerit and ability are approximately equal.Therefore, in order to satisfy or to act inaccordance with sub-rule (4) of Rule 15 of theRules, the committee must place on its records orthe proceedings of the committee must disclosethat the selected candidate is more meritoriousand is also superior in his ability than the onewho is not selected. If we have to accept thecontention of the learned counsel for theappellant, then, we will be giving an unbridledpower to the Selection Committee, which canarbitrarily say, of the two candidates appearingbefore it, one is more meritorious and another isless meritorious without any basis whatsoever.Such arbitrary exercise of power cannot bepermitted or upheld as Art.14 of Constitutionstrikes at such arbitrary exercise of power.Therefore, it is necessary for the SelectionCommittee to record the grounds of merit andability on the basis of which it has made theselection. This interpretation of ours alsoaccords with the very scheme of the Act and theRules. It may be pointed out here that everydecision of the Selection Committee is madeappealable to the Appellate Authority. If theSelection Committee is not required to state thegrounds on which the the selection is made, it isnot possible to hold on what basis, the AppellateAuthority should consider the validity of theorder passed by the Selection Committee, unless itbe that Selection Committee gives the grounds forcoming to the conclusion that the selectedcandidate is more meritorious and is superior inhis ability than the one who is not selected. Wehave already re-produced the relevant portion ofthe Supreme Court's decision relied upon by thelearned counsel for the appellant in NationalInstitute of Mental Health & Neuro Sciences v.Dr.K.Kalyanaraman, AIR 1992 SC 1806: 1992 Lab.I.C.1800: (1992) 2 SCC 461. That decision proceedson the basis that if there are no Rules, it is notnecessary for the Selection Committee to pass aconsidered order and when the Rule provides thatit must make the selection on the ground of merit https://hcservices.ecourts.gov.in/hcservices/ and ability, the Selection Committee is requiredto state what are those grounds on which acandidate is selected in preference to the one whois not selected. It is also relevant to noticethat the Supreme Court in the aforesaid case wasdealing with the case in which the decision of aSelection Committee was not made appealable.Therefore, we are of the view that the ultimatedecision arrived at by the learned single Judge isjust and proper and as such, it does not call forinterference. Consequently, it follows that thiswrit appeal must fail. It is accordinglydismissed." (b)The same was followed by another Division Bench of thisCourt in the decision reported in 2007 WLR 258 (P.Thurai Pandian v.K.Subramanian & 4 Others) wherein in para 17 it is held thus"17.......................... We havealready referred to Rule 15(4) which amply showsthat promotion shall be made on the basis of meritand ability and seniority would be considered onlywhen merit and ability are approximately equal.Likewise, we have also referred to relevantprovisions of the Act and Rules relating toconstitution and functioning of School Committee.In other words, the statute recognised the role ofthe School Committee as paramount in theadministration of school."(c)The Supreme Court in the decision reported in (2007) 6 SCC382 : 2008 (1) LW 763 (S.Sethuraman v. R.Venkataraman) in paragraphs16 and 17 held as follows:"16. The terms and conditions of service ofthe teachers of an aided school are governed bythe Act and the rules framed thereunder. TheManaging Committee of the school in terms of Rule15 of the Rules are enjoined with a duty to fillup the post of Headmaster primarily on the basisof “merit and ability”. Indisputably, theCommittee while appointing a person must take intoconsideration the merit and ability of thecandidate alone and only when the respective meritand ability of two candidates are equal, senioritywill have some role to play. Respondent 1 issenior to the appellant only by 13 days. At therelevant point of time, the appellant had passedthe prescribed Accounts test for Headmastersconducted by the Tamil Nadu Public Service https://hcservices.ecourts.gov.in/hcservices/ Commission in the year 1989. Before us variousother factors have been placed for the purpose ofshowing that apart from the fact that theappellant was more qualified, Respondent 1 havingregard to his past services should not have beenconsidered suitable for appointment to the saidpost. 17. While exercising the appellatejurisdiction, the appellate authority hasindisputably a plenary power. It may not onlyconsider the respective educational qualificationsand other activities of the respective candidatesfor the purpose of arriving at a decision as towhich of the two candidates had better merit andability, but it should exercise its jurisdictionkeeping in view the views of the ManagingCommittee. If two views are possible, ordinarily,the view of the Managing Committee should beallowed to prevail."(d)A learned single Judge of this Court in the decisionreported in 1991 WLR 694 (P.Rajendran v. The Government of TamilNadu) in paragraph 9 held as follows:"9......... it is seen that under R.15(4)the appointment to the post of Headmaster is byprocess of selection, merit and ability is thecriteria and seniority will count only where meritand ability are approximately equal. Therefore,the Management is not bound to appoint a personmerely because, he is senior in service. They cantake note of the merit and ability of therespective candidates, who aspire for the post ofHeadmaster. ......."(e)Following the above judgments, in W.P.Nos.4467 and 3455 of2004, by common order dated 6.3.2008, I gave direction to select B.TAssistant (History) post in a private aided school. The saiddecision was affirmed in W.A.No.517 and 518 of 2008 dated 28.4.2008by observing as follows:"............ The learned single Judge hadrightly directed the authorities to fill up theB.T.Assistant (History) post strictly inaccordance with Rule 15(4) of the Tamil NaduRecognised Private Schools (Regulation) Rules,1974, considering the merit and ability of twocandidates are found approximately equal, thenseniority has to be considered for selecting a https://hcservices.ecourts.gov.in/hcservices/ person as B.T.Assistant (History) under the saidrule. We are in entire agreement with the orderof the learned single Judge. The writ appeals aredismissed."15.The learned counsel for the 4th respondent has rightlycontended that the School Committee committed a patent error whileconsidering the qualifications possessed by the 4th respondent. It isnot in dispute that the 4th respondent has passed B.A. and B.Ed.,degrees from Madurai Kamaraj University in first attempt. Thepetitioner secured second class in theory and first class inpractical in B.Ed degree. However, the School Committee in itsresolution recorded that the 4th respondent has passed the saiddegrees in two attempts. The said error committed by the SchoolCommittee is an error apparent on the face of the record. Thelearned counsel for the 5th respondent is unable to explain the saiderror committed by the School Committee, which is reflected in theSchool Committee resolution. Further, the service register of the 4threspondent was with the second respondent on 16.11.2000 as per theaverments in the counter affidavit filed by the 4th respondent. Thesame is not denied by the 5th respondent. Thus, the decision of theSchool Committee is contrary to records and without considering therelevant facts, but considered the irrelevant facts while arriving atthe decision. In view of the said illegality committed by the SchoolCommittee while assessing and recording the merits and ability of thepetitioner as well as the 4th respondent, pursuant to which thepetitioner was given promotion as Headmistress of the School, thedecision of the School Committee cannot be sustained.16.As held by the Division Bench of this Court in the abovereferred decision and the School Committee having been vested withthe power to select and appoint teachers and other persons employedin private School under section 18 of the Tamil Nadu RecognisedPrivate Schools (Regulation) Act, 1973, which is also constitutedunder section 12 of the Act, the School Committee shall consider allthe aspects while exercising its powers during selection of theHeadmaster of the School in terms of Rule 15(4) read with 15(6).17.The relevant facts having not been considered by the SchoolCommittee, the selection and promotion of the petitioner asHeadmistress cannot be sustained. The reason stated by therespondents 1 and 2, though not be treated as valid reason to rejectthe approval of appointment of the petitoner, in view of my abovefinding that the School Committee having not applied its mind andassessed the merits and ability of the petitioner and the 4threspondent properly, the selection and promotion of the petitioner asHeadmistress even by 16.11.2000 is to be held illegal.18.In fine, the writ petition is disposed of with direction tothe 5th respondent to make fresh selection to the post of Headmaster https://hcservices.ecourts.gov.in/hcservices/ of the 5th respondent private School in accordance with the statutoryrule, within a period of two months from the date of receipt of copyof this order. No costs.vr Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Director of Elementary Education,College Road, Madras – 6.2.The District Elementary Educational Officer,Madurai, Madurai District.3.The Assistant Elementary Educational Officer,T.Kallupatti, Madurai District.+ 1 cc to Mr.R. Seseetharan SR.33912.PRE-DELIVERY ORDER INW.P.No.4947 of 2001CKN(CO)EU 1.8.2009.