IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23-12-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.13017 of 2008 & M.P.Nos.1, 2 of 2008 R. Rajanarayanan ... Petitioner Vs. 1.Joint Director of School Education, (Secondary Education), College Road, Chennai – 600 006. 2.District Educational Officer, Pattamangala Street, Mayiladuthurai. 3.The Secretary and Correspondent, K.S.O.High School, Manganallur, Mayiladuthurai Taluk, Nagapattinam District. 4.V. Shyamala ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorari calling for the records of the first respondent in his proceedings in Mu.Mu.No.5644/G2/E1/08, dated 8.5.2008 and quash the same. For Petitioner : Mr.A.Muthukumar For Respondents 1 & 2 : Mr.K.H.Ravikumar, Government Advocate (Edu) For 3rd Respondent : No appearance For 4th Respondent : Mr.C.Selvaraj, Senior Counsel, for Mr.S.Mani https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent of both sides the writ petition is taken up for final disposal. 2. The prayer in this writ petition is to quash the order passed by the first respondent dated 8.5.2008 allowing the appeal filed by the 4th respondent by setting aside the promotion given to the petitioner as Headmaster of the third respondent School. 3. The case of the petitioner culled out from the affidavit in support of the writ petition are as follows: (a) The third respondent School is a private Aided School. The Headmaster of the School by name N.Vaideeswaran retired from service on 31.5.2007. The third respondent management requested the 4th respondent to act as in-charge Headmistress and the School Committee decided to call for applications from the eligible persons for promotion to the post of Headmaster working in the School. (b) The petitioner, 4th respondent and two other teachers in the School applied for the post of Headmaster. By proceedings dated 15.12.2007, the third respondent requested all the candidates to appear for written test and interview on 21.12.2007 for selection to the post of Headmaster. All the candidates participated in the selection. The petitioner was selected on assessment of merit and ability and the 4th respondent came in the 4th position. (c) Consequently the petitioner was promoted to the post of Headmaster on 26.12.2007 and he is discharging his duties from the said date as Headmaster of the third respondent School. In the third respondent School, 35 teachers and five non-teaching staff are working and the students strength for the year 2007-2008 is 1272. (d) It is the case of the petitioner that while serving as Headmaster of the third respondent school, the petitioner was served with the order passed by the first respondent dated 8.5.2008, wherein the first respondent set aside the promotion of the petitioner as Headmaster and also directed the third respondent management to appoint the 4th respondent as Headmistress on the basis of seniority and also on the ground that the 4th respondent served as Assistant Headmistress of the School from 2.6.2005. (e) The said order is challenged in this writ petition on the ground that while allowing the appeal filed by the 4th respondent, the first respondent has not given any notice or opportunity of hearing; https://hcservices.ecourts.gov.in/hcservices/ on earlier occasion the 4th respondent filed W.P.No.525 of 2008 before this Court and challenged the order of promotion given to the petitioner dated 26.12.2007 wherein the 4th respondent sought to implead the petitioner as 4th respondent and the said writ petition was dismissed in limini granting liberty to the 4th respondent to approach the appellate authority; even though the 4th respondent sought to implead the petitioner as 4th respondent in the above writ petition, he was not impleaded as party respondent in the said writ petition; and that without issuing notice, the first respondent/appellate authority set aside the grant of promotion to the petitioner. (f) It is also the case of the petitioner that on merits the petitioner is entitled to succeed in view of the statutory rule viz., Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, wherein it is stated that promotion to the post of Headmaster in Private Aided Schools shall be made on the basis of merit and ability and seniority can be considered only when merit and ability are approximately equal. (g) The merit and ability of the petitioner, 4th respondent and two other staff members were considered, assessed and determined by the School Committee of the third respondent School by conducting written test and interview and the petitioner was found first in the merit list, whereas the 4th respondent was found 4th in the merit list. Therefore, on the basis of assessment of merit and ability, the petitioner was given promotion, which cannot be set aside by the first respondent on the ground that the 4th respondent was senior than the petitioner or she served as Assistant Headmistress. On the above said ground the impugned order in the writ petition is sought to be quashed. 4. The 4th respondent filed counter affidavit stating that she was appointed as Assistant Headmistress from 2.6.2005 and was put in charge of the post and she is the senior-most Teacher in the B.T.Assistant cadre in the third respondent School and as per the seniority, she is entitled to be promoted as Headmistress since the 4th respondent joined in the School in the year 1987 and the petitioner joined in the school only on 4.4.2001. According to the 4th respondent, based on the 20 years of teaching experience and the higher qualification secured by the 4th respondent, the first respondent allowed the appeal and there is no illegality in the said order. 5. The second respondent filed counter affidavit by stating that there is no provision to conduct separate examination to assess the merit and ability for promotion to the post of Headmaster under the rules and therefore the appeal filed by the 4th respondent was allowed by the first respondent considering the long number of years of service and the 4th respondent is functioning as Assistant https://hcservices.ecourts.gov.in/hcservices/ Headmistress from 2.6.2005 and there is no illegality in the order passed by the first respondent in cancelling the order of promotion given to the petitioner. 6. The learned counsel for the petitioner argued that the petitioner satisfies the eligibility prescribed under the rules for promotion to the post of Headmaster and as per Rule 15(4) of the Tamil Nadu Private Schools (Regulation) Rules, 1974, promotions are to be made on the ground of merit and ability and the School Committee conducted written test as well as interview to assess the merit and ability. The petitioner, 4th respondent and other eligible persons applied, appeared for the written test as well as oral test and the 4th respondent having taken a chance by participating in the selection, who was found less meritorious than the petitioner, cannot challenge the mode of selection, without any demur and there is no illegality in selecting the petitioner as Headmaster. The learned counsel contended that the order of the first respondent is not only contrary to the said statutory rule, but also in violation of the principles of natural justice as well as violation of the judgments of this Court reported in 2001 WLR 222 (M.Siluvai Rajan v. Director of School Education & Others), 2002 WLR 81 (S.P.Jalaja v. Karapettai Nadar Girls Higher Secondary School & Others), (2007) 3 MLJ 171 (G.Annamalai v. Secretary & Commissioner, Education Department) and the decision of the Honourable supreme Court reported in (2007) 6 SCC 382 : 2008 (1) LW 763 (S.Sethuraman v. R.Venkataraman). The learned counsel also submitted that the 4th respondent passed the higher qualification through correspondence course and therefore no weightage can be given to the said higher qualifications. 7. The learned Senior Counsel appearing for the 4th respondent on the other hand submitted that the 4th respondent is far senior to the petitioner and the assessment of merit and ability by conducting written-cum-oral test by the third respondent School Committee is illegal. The learned Senior Counsel also submitted that in the appeal filed by the 4th respondent, the first respondent considered all the aspects and set aside the order of promotion given to the petitioner and there is no illegality in the said order. 8. The learned Government Advocate appearing for the respondents 1 to 3 adopted the arguments of the learned Senior counsel for the 4th respondent. 9. Admittedly the petitioner and the 4th respondent are qualified for being considered for promotion to the post of Headmaster of the third respondent Aided School. The statutory provision as to how the promotion shall be made by the School Committee in Aided Schools is clearly spelt out in Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, which reads thus: https://hcservices.ecourts.gov.in/hcservices/ "15(4) (i) Promotion shall be made on grounds of merit and ability seniority being considered only when merit and ability are approximately equal. (ii) Appointments to the various categories of teachers shall be made by the following methods: (i) Promotion among the qualified teachers in that school. (ii) If no qualified and suitable candidate is available by method (i) above,- (a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers. (b) Appointment of teachers from any other school. (c) Direct recruitment. In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre- Primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule. (d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in clause (ii) either from the category of Headmasters of High Schools or Teachers Training Institutes or from the category of Post Graduate Assistants in academic subjects or Post Graduate Assistants in Languages provided they possess the prescribed qualifications." 10. From the report submitted by the third respondent to the first respondent dated 14.3.2008 it is evident that the petitioner has secured 83.5 marks, whereas the 4th respondent scored only 38 marks out of 100 during the selection conducted by the third respondent and following are the details of the marks awarded by the School Committee: https://hcservices.ecourts.gov.in/hcservices/ Marks obtained in the Interview R.Rajanarayanan (Petitioner) V. Shyamala (4th Respondent) 1. Written Test 28 1/2 02 2. Letter Writing 09 01 3. Interview 15 06 4. Period of service 01 04 5. Teaching 18 15 6. Extra curricular activities 07 05 7. Conduct 05 05 Total 83 1/2 38 Thus, the School Committee, on assessment of merit and ability found that the petitioner is the fit person to hold the post of Headmaster, as he was found more meritorious. 11. The assessment of merit and ability of the eligible candidates by the School Committee, by conducting written test, is valid or not was considered by the Division Bench of this Court in the decision reported in 2002 WLR 81 (S.P.Jalaja v. Karapettai Nadar Girls Higher Secondary School & Others). In the said decision, the Division Bench held that when the rule does not provide for any mode of considering the assessment of merit and ability, conducting of written test to assess the merit and ability cannot be found fault with. 12. Whether a person who qualified himself through Correspondence course, can be preferred based on the basis of qualification, was also considered by the Division Bench of this Court in the decision reported in 2001 WLR 222 (M.Siluvai Rajan v. Director of School Education & Others), wherein the Division Bench held that the persons undergone regular degree course, than the persons undergone degrees through correspondence course, certainly can be preferred. https://hcservices.ecourts.gov.in/hcservices/ 13. In the decision reported in (2007) 3 MLJ 171 (G.Annamalai v. Secretary and Commissioner, Education department), in which I was also a party, whether a person can claim primacy in the selection post and how the same can be filled up in terms of Rule 15(4) are considered and decided. In paragraphs 12 to 15 the Division Bench held thus: "12. Admittedly the appellant was not selected and promoted as Headmaster of the School and he was only Assistant Headmaster (PG grade), for which he was paid salary also. To claim the salary of the post of Headmaster, the appellant should have been appointed and worked in that post. Though the appellant was given in-charge of the post of Headmaster for certain period, that is during the period of leave taken by the Headmaster, he cannot claim that he should be given the scale of pay of the post of Headmaster, particularly when he received the salary of PG Assistant along with the special pay for having held the post of Assistant Headmaster and further having retired from service as PG Assistant on 31.8.1995 with the designation of Assistant Headmaster. 13. (a) The Honourable Supreme Court, in the decision reported in AIR 1966 SC 1547 (State of Orissa v. Durga Charan Das) considered similar rule with regard to promotion by way of selection and in para 6 held as follows, "6. The Rule in question protects the conditions of service as respects pay, allowances, leave and pension of the members falling under its purview, and it guarantees that in no case shall the terms in relation to the said conditions of service be less favourable than they were immediately before the 1st of April, 1936. The question is: do any of the conditions specified in R.6 include a claim for promotion to a higher selection post and confirmation in it ? It is well known that promotion to a selection post is not a matter of right which can be claimed merely by seniority. Normally, in considering the question of a public servant's claim for promotion to a selection post, his seniority and his merits have to be considered; and so, it seems to us very difficult to accept the view taken by the High Court that in R.6 of the Protection https://hcservices.ecourts.gov.in/hcservices/ Rules, a guarantee can be inferred in regard to promotion to a selection post. What the Rule guarantees is that the public servants who were transferred to Orissa will not suffer in regard to their pay, allowances, leave and pension; and these respective conditions do not seem to include a claim for promotion to a higher selection post; and indeed, it seems very unlikely that any protection could ever have been reasonably intended to be given in regard to promotion to 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 opinion that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan State are selection posts and outside the junior or senior time-scales of pay. If these three posts are selection posts it is manifest that the State of Rajasthan is not bound to promote the petitioner merely because he stood first in the Gradation List. The circumstances that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are fight in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available. ........." https://hcservices.ecourts.gov.in/hcservices/ (c) In the decision reported in (2001) 5 SCC 60 (Central Council 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 selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis. The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of "merit-cum-seniority" had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fides on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of "seniority-cum- fitness". In the High Court, the appellants herein failed to point out that the promotion is in respect of a "selection post" and the principle to be applied is "merit-cum- seniority". Had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot ensure to the benefit of any party." (d) In the decision reported in (2003) 6 SCC 535 (Dwaraka Prasad v. Union of India) in para 24 the Honourable Supreme Court considered the scope of Articles 14 and 16 in the matter of promotion and held thus, "24. Articles 14 and 16 of the Constitution of India cannot be pressed into service to describe the fixation of lower quota for POs as discriminatory. It is well established in law that the right to be considered for promotion on fair and equal basis without discrimination may be claimed as a legal and a fundamental right under Articles 14 and 16 of the Constitution but https://hcservices.ecourts.gov.in/hcservices/ chances of promotion as such cannot be claimed as of right. ....................." 14. It could be seen from the counter affidavit that on 13.5.1985, the School Committee assessed the merit and ability of all the six candidates including that of the appellant and also the past conduct of the appellant including the punishment imposed. According to the management, the appellant is not fit to be promoted as Headmaster of the School and it is the decision taken by the School Committee, who is the competent authority under the Act. A similar issue arose before a Division Bench of this Court in the decision reported in 2002 WLR 81 (S.P.Jalaja v. Karapettai Nadar Girl Higher Secondary School & Ors.) wherein almost in identical circumstances the appellant therein was not given promotion as Headmistress, which was also challenged by the appellant repeatedly and ultimately the Division Bench in para 15 upheld the contention of the School Committee that merit and ability of all the candidates were assessed and the appellant therein was found not suitable. The Division Bench in para 15 held as follows, "....... As rightly pointed out by the learned counsel, the School Committee also took into account the entire service career of the candidates who had applied for the higher post. The Headmistress of the School occupies an unique position and she is the linchpin around and the school activities revolve around her and she should have full confidence of the teachers, pupils, school authorities and must have administrative control, managerial skill, financial control over the funds of the school and she must secure full and unstinted co-operation from teachers and pupils for the past performance of the school. Needless to mention, any deficiency on the part of the Headmistress would reflect not upon the individual members, but would reflect on the institution itself." 15. In view of the settled legal position and in the light of Rule 15(4) of the Tamil Nadu Recognised Private Schools Regulation Rules, 1974, the claim of the appellant that he should be https://hcservices.ecourts.gov.in/hcservices/ retrospectively given promotion with monitory benefits is unsustainable and we hold that the order of the learned single Judge in dismissing the writ petition is in conformity with Rule 15 of the Rules." 14. Recently I have considered similar issue with regard to promotion to the B.T.Assistant Post in W.P.No.3455 and 4467 of 2004 order dated 6.3.2008, following the decision of the Supreme Court reported in (2007) 6 SCC 382 : 2008 (1) LW 763 (S.Sethuraman v. R.Venkataraman). In the said decision the Supreme Court in paragraphs 16 and 17 held thus: "16. The terms and conditions of service of the teachers of an aided school are governed by the Act and the rules framed thereunder. The Managing Committee of the school in terms of Rule 15 of the Rules are enjoined with a duty to fill up the post of Headmaster primarily on the basis of “merit and ability”. Indisputably, the Committee while appointing a person must take into consideration the merit and ability of the candidate alone and only when the respective merit and ability of two candidates are equal, seniority will have some role to play. Respondent 1 is senior to the appellant only by 13 days. At the relevant point of time, the appellant had passed the prescribed Accounts test for Headmasters conducted by the Tamil Nadu Public Service Commission in the year 1989. Before us various other factors have been placed for the purpose of showing that apart from the fact that the appellant was more qualified, Respondent 1 having regard to his past services should not have been considered suitable for appointment to the said post. 17. While exercising the appellate jurisdiction, the appellate authority has indisputably a plenary power. It may not only consider the respective educational qualifications and other activities of the respective candidates for the purpose of arriving at a decision as to which of the two candidates had better merit and ability, but it should exercise its jurisdiction keeping in view the views of the Managing Committee. If two views are possible, ordinarily, the view of the Managing Committee should be allowed to prevail." https://hcservices.ecourts.gov.in/hcservices/ Following the said Supreme Court decision, I allowed the writ petition and directed the management to select a person by following Rule 15(4) since merit and ability was not assessed in the earlier selection. The said decision of mine was confirmed by the Division Bench in W.A.No.517 and 518 of 2008 Judgment, dated 28.4.2008. 15. The 4th respondent, who has taken part in the selection for the post of Headmaster by appearing in the written test as well as in oral test and having taken a chance without any demur, whether can challenge the procedures adopted by the Selection Committee and the mode of the selection on the ground of estoppel, came up for consideration in the following decisions: (i) In the decision reported in AIR 1978 SC 28 (I.L.Honnegouda v. State of Karnataka and others) the Honourable Supreme Court held thus, "In view of our judgment in Appeals Nos.883 and 898 to 905 of 1975 : (Reported in AIR 1977 SC 876) which has just been delivered and the fact that the appellant acquiesced to the 1970 Rules by applying for the post of the Village Accountant, appearing before the Recruitment Committee for interview in 1972 and 1974 and taking a chance of being selected, the present appeal which questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be allowed. It is accordingly dismissed but without any order as to costs." (ii) In 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla) in paragraph 24, the Honourable Supreme Court held thus, "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He