IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2009 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeal No.868/2006 M.Muruganandam ... Appellant Vs. 1.The Government of Tamil Nadu, rep. by the Secretary, School Education Dept., Fort St.George, Chennai-9. 2.The Joint Director, Higher Secondary, D.P.I.College Road, Chennai-6. 3.The Correspondent, Singaram Pillai Girls' Higher Secondary School, Villivakkam, Chennai-49. 4.Mrs.Beulah Masilamani, Z, 20, Anna Nagar, Chennai-40. ... Respondents Appeal filed under clause 15 of the letters patent against the order passed by this Court dated 07.04.2004 passed in W.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 School Education (M.N.K.1) allowing the Revision petition filed by the fourth respondent as against the order of second respondent and made 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.Vaidyanathan For 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 T K.K.SASIDHARAN, J. This writ appeal is directed against the order dated 07.04.2004 in W.P.No.13911/1998 in and by which, the learned Single 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. Factual matrix :- 2.The appellant joined the service of Singaram Pillai High School, Villivakam, Chennai, as B.T. Assistant in the year 1964. The said Institution was subsequently bifurcated into two schools viz., Singaram Pillai Boys High School and Singaram Pillai Girls High School and after the introduction of Higher Secondary System, both the schools were upgraded as Higher Secondary Schools. Since the very same Management was running two higher secondary schools and a primary school, they have been given corporate status as per G.O.Ms.No.836, Education Department, dated 27.06.1984. As per the said Government Order, all the schools run by Singaram Pillai Schools Management shall be treated as a single unit and promotion of teachers have to be made on the basis of a combined seniority list. Rule 15(4)(1) of the Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974, provides that in respect of a corporate body running more than one school, the schools under that body shall be treated as a single unit for the purpose of promotion. 3.While the matter stood thus, vacancy in the post of Headmaster at Singaram Pillai Girls Higher Secondary School arose during the year 1984, due to superannuation of the then Headmaster. The petitioner was the senior most approved P.G. Teacher with the required qualification as on the said date. However, instead of promoting the petitioner as Headmaster, the management promoted the fourth Respondent as Headmistress even though she was not an approved P.G.Teacher as on the date on which such promotion was granted. 4.The appointment of the fourth Respondent as Headmistress in the Girls Higher Secondary School was challenged by the appellant before the second Respondent. The second Respondent in exercise of the statutory powers as Appellate Authority, as per order dated 27.09.1988, allowed the appeal and set aside the promotion and order of appointment of the fourth Respondent as Headmistress. Subsequently, the appeal was heard again as per the direction of this Court dated 02.08.1991 in W.P.No.13083/1988 and accordingly, after granting an opportunity to the fourth Respondent, the second Respondent passed fresh orders on 09.11.1992, setting aside the https://hcservices.ecourts.gov.in/hcservices/ promotion and appointment of the fourth Respondent as Headmistress and directed the third Respondent to consider the issue of promotion among the eligible teachers. 5.The order dated 09.11.1992 was challenged by the third Respondent 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 a revision petition and the First respondent held that as per G.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. 6.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 with G.O.Ms.No.720 Edn. Department dated 28.04.1981 and the said Government 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 dated 27.06.1984 was withdrawn as per G.O.(3D)No.15 dated 17.08.1998. According to the fourth Respondent, rule 15(4)(1) of the Tamil Nadu Recognized Private School (Regulation) Rules were not applicable to the appointment of the petitioner as Headmistress on 06.02.1985. 7.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 Secondary Schools, wherein, it was specified that one should hold a Masters Degree for teaching in any of the languages under parts I and II or subjects under Part III Group 'A' of the syllabus for Higher Secondary School. Accordingly, the learned Judge held that communication of the Director of School Education dated 03.05.1984 cannot 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 Respondent Institution. Submissions of counsel for the appellant :- 8.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 27.06.1984 and 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 Nadu Recognized Private Schools (Regulation) Rules, 1974. According to the learned Counsel, the matter was clarified by the Education Department 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.720 Education 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 in W.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 :- 9.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 Society should be treated as a single unit for the purpose of promotion. Though there was an earlier Order issued by the Government in G.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.836 dated 27.06.1984 would prevail over G.O.Ms.No.720 dated 28.04.1981. 10.The provisions of Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 were extended to the Private Higher Secondary Schools receiving aid, only by way of amendment in G.O.Ms.No.1502 dated 23.09.1988. Therefore, the appointment of the fourth Respondent was only in accordance with the prevailing Government Order in G.O.Ms.No.720 dated 28.04.1981. It is true that corporate status was granted to the third Respondent management 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 as a 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 dated 16.03.1988 wherein it was indicated that the orders in G.O.Ms.No.836 dated 27.06.1984 would prevail over G.O.Ms.No.720 dated 28.04.1981. It was only by way of the said clarificatory letter that it was specified that even in respect of women institutions, seniority would have to be followed taking into account the claims of men. 11.The executive instructions issued under Article 166 of the Constitution of India cannot be taken away by way of clarificatory letters issued by an official of the Government and so long as G.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 of G.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 Tamil Nadu Recognized Private Schools (Regulations) Rules, but only under the provisions of G.O.Ms.No.720 dated 28.04.1981. 12.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.720 dated 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 a Girls High School. 13.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 Government College for Women and after considering the policy decision of reservation for females and right to equality, the Hon'ble Supreme Court 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 of a lady Principal or teacher would also be justified. The object sought to be achieved is a precautionary, preventive and protective measure based on public morals and particularly in view of the young age of the girl students to be taught. One may believe in absolute freedom, one may not believe in such freedom but in such case when a policy decision is taken by the State and the rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it would be difficult to hold that the rules empowering the authority to appoint only a lady Principal or a lady teacher or a lady doctor or a woman Superintendent are violative of Article 14 or 16 of the Constitution. 6.Secondly, such reservation by the State is permissible in exercise of powers conferred under Article 15(3), which provides thus: “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.— (3) Nothing in this article shall prevent the State from making any special provision for women and children.” Policy decision of reservation for females and right to equality; ........ 9.(b)In Dattatraya Motiram More v. State of Bombay provisions of the Bombay Municipal Boroughs Act, 1925 which reserved seats for women in the election were challenged on the ground that they offended Articles 14, 15 and 16 of the Constitution. That contention was negatived by the Court and explaining the scope of Article 15, the Court (Chagla, C.J.) observed that it must always be borne in mind that the discrimination which is not permissible https://hcservices.ecourts.gov.in/hcservices/ under Article 15(1) is a discrimination which is only on one of the grounds mentioned in Article 15(1). If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations besides the fact that the persons belonging to that class are of a particular sex. The Court further held thus: “....Article 15(3) is obviously a proviso to Article 15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section itself, but it does not and cannot destroy the whole section. The proper way to construe Article 15(3), in our opinion, is that whereas under Art.15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in favour of women is permissible, and when the State does discriminate in favour of women, it does not offend against Article 15(1). Therefore, as a result of the joint operation of Article 15 (1) and Article 15(3) the State may discriminate in favour of women against men, but it may not discriminate in favour of men against women..” 14.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/ 15.In the result, the writ appeal is dismissed. No costs. Tar Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary, School Education Dept., Fort St.George, Chennai-9. 2.The Joint Director, Higher Secondary, D.P.I.College Road, Chennai-6. + 1 cc to Mr. S. Vaithiyanathan, Advocate SR No.2321 Judgment in W.A.No.868/2006 KG(CO) SR/28.1.2009 https://hcservices.ecourts.gov.in/hcservices/