IN THE HIGH COURT OF JUDICATUREAT MADRAS DATED :: 12-10-2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.25002 OF 2006 L.Gopal ... Petitioner -vs- 1.The State of Tamil Nadu, rep.by its Secretary to Government, School Education Department, Fort St.George, Chennai-9. 2.The Joint Director of School Education, (Higher Secondary), Chennai-6. 3.The Chief Educational Officer, Salem, Salem District. 4.The District Educational Officer, Sangagiri, Salem District. 5.Velasamy Chettiar Higher Secondary School, Omalur, Salem District, rep.by its Secretary. 6.M.Kalaiselvan ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the order of the 1st respondent in G.O.No.223, School Education Department, dated 10.07.2006, quash the same and consequently direct the respondents 1 to 4to approve the appointment of the petitioner as Headmaster of the 5th respondent school and pay salary from 12.06.1985. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Muthukumarasamy, Senior Counsel, for Mr.K.Ravichandra Babu. For respondents 1 to 4 : Mr.A.Suresh, Govt.Advocate (Education). For respondent 5 : Mr.M.Hidayathulla Khan For respondent 6 : Mr.C.Selvaraj, Senior Counsel, for M/s.S.Mani. O R D E R The order of the first respondent in G.O.No.223, School Education Department, dated 10.07.2006, is under challenge in this Writ Petition, filed by the petitioner. 2. The case of the petitioner is as follows : 2.1 The fifth respondent school is a private recognized fully aided school having standards from 6 to 12. The previous Headmaster of the school retired on superannuation on 31.05.2003 and, therefore, the post of Headmaster became vacant from 01.06.2003. In the said school, 10 P.G.Assistants are working, including the petitioner as a P.G.Assistant (Physics), who was appointed on 12.06.1985, and he is having previous experience as a P.G.Assistant (Physics) from 31.12.1983 to 01.06.1985, having worked in Vivekananda Higher Secondary School, Thiruvedagam, Madurai District, which is also a private aided school. The petitioner also served as a P.G.Teacher from 06.10.1982 to 31.03.1983 in Sennimalai Kumarappa Higher Secondary School, Erode District, and for the said purpose also, the Department paid salary as P.G.Assistant to the petitioner. Thus, the petitioner was having the experience of fully qualified service of 19 years 5 months and 1 day on the date of his selection as Headmaster. The sixth respondent is having only 18 years 2 months and 19 days of experience as on the date of selection, even though he had joined in the school as a P.G.Assistant (Commerce) on 13.03.1985. The other P.G.Assistants, even though joined in the year 1985, were not interested for the post of Headmaster, as they had not applied for the same. 2.2. The Petitioner and the sixth respondent submitted applications for the post of Headmaster before the fifth respondent School Committee. The School Committee meeting was held on 06.11.2003 for selecting the Headmaster of the school. The School Committee considered the merit and ability of the eight P.G.Assistants and found that the sixth respondent possessed the following degrees :- M.Com., B.Ed., M.Ed., M.A.(Economics), M.Phil. (Commerce), and passed https://hcservices.ecourts.gov.in/hcservices/ Office Manual and D.O.M.Tests conducted by the T.N.P.S.C. In so far as the petitioner is concerned, he possessed the following degrees :- M.Sc. (Physics), B.Ed., M.Ed., M.Phil.(Education), M.A. (History), M.A. (Sociology) and M.A. (Economics), Deputy Inspector for Educational Statistics Paper-I and Deputy Inspector Paper II, relating to Elementary School, D.O.M.Test, Certificate in Office Automation in Computer Training through S.I.S.I. and also he had completed course in M.A. Population Studies in Annamalai University. The petitioner was also given Best Teacher Award for 2000-2001 by the Rotary Club of Mettur, Salem District. He was also Headmaster In- charge of the school from 01.04.1993 to 17.07.1994; Chief Examiner for the +2 practical examinations held in March,1994, Chief Superintendent for S.S.L.C.Examination in September and Departmental Officer for the conduct of +2 Examination in March,2001 and 2003. The School Committee, assessing the merit and ability of the eight P.G.Assistants, including the petitioner and the sixth respondent, and also taking into consideration the previous experience of the petitioner, selected and appointed the petitioner as Headmaster of the school from 07.11.2003 in the selection post and accordingly he is functioning as the Headmaster of the school from 07.11.2003 onwards. 2.3. The said appointment of the petitioner was challenged by the sixth respondent before the second respondent by filing an appeal on the ground that he was the senior most teacher in the fifth respondent school. The second respondent, based on the appeal filed by the sixth respondent, invited remarks from the petitioner and the fifth respondent. After getting remarks, the second respondent considered the appeal filed by the sixth respondent and passed orders through his proceedings M.M.No.97967/Wa/03, dated 19.05.2004, rejecting the appeal, holding specifically that based on merit and ability, the petitioner was better placed and that the petitioner, apart from having P.G.Degree in the relevant subject, also passed M.A.Degree in Economics, Sociology and History, M.Ed., M.Phil. (Education), whereas the sixth respondent passed M.Com., M.A.in Economics, M.Ed., and M.Phil. (Commerce) and therefore the selection of the petitioner as Headmaster of the school of the fifth respondent school, on the basis of merit and ability, was perfectly in order. 2.4. Peeved at the above order, the sixth respondent filed a revision petition before the first respondent on 12.08.2004. Thereafter, the first respondent called upon the petitioner through his letter, dated 04.03.2005, to appear for personal hearing on 15.03.2005 and to make his submissions. Accordingly, the petitioner appeared in person before the first respondent and gave a detailed objection in writing dated 15.03.2005. By another letter dated 22.04.2005, the first respondent called upon the petitioner to give a further representation within fifteen days, to which the petitioner once again submitted his objections, dated 09.05.2005, in writing. https://hcservices.ecourts.gov.in/hcservices/ 2.5. The first respondent, without considering any of the objections made by the petitioner dated 15.03.2005 and the subsequent objections dated 09.05.2005 and the position of law involved in the case as well as in total ignorance of its own G.O.No.305, dated 10.08.1998, passed an order in G.O.No.223, dated 10.07.2006, and allowed the revision filed by the sixth respondent, setting aside the order of the second respondent, dated 19.05.2004. Hence, this Writ Petition. 3. Respondents 1 to 4 have filed a counter affidavit, stating as under : 3.1. The petitioner, P.G.Assistant in Physics and served in fifth respondent school from 12.06.1985, was promoted and appointed as Headmaster of that school with effect from 07.11.2003 in the vacancy caused by the retirement of M.Venkatachalapathy from 31.05.2003, against which, the sixth respondent, who was P.G.Assistant in Commerce serving in fifth respondent school and senior to the petitioner, preferred an appeal to the Joint Director of School Education (Higher Secondary), Chennai, second respondent herein, challenging the appointment of the petitioner as Headmaster of that school and requesting promoting him as Headmaster, cancelling the appointment of the petitioner. Following the same, the second respondent called for remarks of the Chief Educational Officer, Salem, third respondent. Accordingly, the third respondent submitted his remarks to the second respondent. After examining the appeal petition of the sixth respondent and the remarks of the third respondent, the second respondent passed an order, dated 19.05.2004, rejecting the appeal. 3.2. Aggrieved over the same, the sixth respondent preferred a revision under Section 45 of the Tamil Nadu Recognised Private Schools (Regulation) Act,1973, (in short, "the Act") to the Secretary to Government, School Education Department, first respondent, requesting to cancel the orders of the second respondent, dated 19.05.2004, and promoting him as Headmaster in the place of the petitioner, whereupon, the Government, in their letter No.26694/VE/2004-3, School Education Department, dated 22.04.2005, informed the petitioner that with reference to Rule 15 (4) (i) of the Tamil Nadu Recognised Private School Regulation Rules,1974, (in short, "the Rules") promotion shall be made on the basis of merit and ability and seniority shall be considered when merit and ability are approximately equal. Sixth respondent is senior to the petitioner, as he joined in the school on 13.03.1985, whereas the petitioner joined on 12.06.1985. Comparing the educational qualifications of both the petitioner and the sixth respondent, the petitioner was given preference for possession of more educational qualifications in various subjects, for which there was no provision in the rules. Therefore, the Government considered that it was incorrect in not giving promotion to the sixth respondent, who was senior in service, https://hcservices.ecourts.gov.in/hcservices/ and to issue final orders, cancelling the order of the appellate authority, dated 19.05.2004, on the revision petition of the sixth respondent. The petitioner was also informed that if he had any objection on the stand taken by the Government, he may submit his representation within 15 days, in compliance of Section 45 (2) of the Act. The petitioner, in his letter dated 09.05.2005, submitted his representation and prayed the Government to pass orders to dismiss the revision filed by the sixth respondent. After going through the revision of the sixth respondent and the representation of the petitioner, the Government, in their G.O.Ms.No.223, School Education (VE) Department, dated 10.07.2006, issued orders rejecting the orders of the appellate authority and accepting the revision of the sixth respondent. 3.3. As a general principle, it is the responsibility of the management of the school to call for the willingness of all the P.G.Teachers, who are having enough qualification to hold the post of Higher Secondary School Headmaster and then proceed further to choose the person from among the P.G.Teachers according to the rules whenever vacancy arises for the post of Headmaster. The said principle was not followed by the management of the school. Instead, the management predetermined the petitioner for the post of Headmaster and appointed him with effect from 07.11.2003. 3.4. The G.O.Ms.No.305, School Education (D-2) Department, dated 10.08.1998 is not applicable to the case of the petitioner, as the services rendered by him in other recognised aided schools of this State from 06.10.1982 to 31.03.1983 and from 31.12.1983 to 11.06.1985 was counted only for the fixation of pay and sanction of increments in the fifth respondent school from the date of his joining i.e., from 12.06.1985. Therefore, for the purpose of seniority in the fifth respondent school, the services put in by the petitioner in the recognized schools of this State cannot be taken to determine the seniority for appointment to the post of Headmaster in the fifth respondent school. As such, the Writ Petition is liable to be dismissed. 4. The stand of the fifth respondent is that the post of Headmaster became vacant on 31.05.2003; 10 persons applied for the post; no interview was conducted; the Committee, after eliminating two persons viz., Arumugam and Chitra, considered the remaining 8 persons and selected the writ petitioner for the post of Headmaster and appointed him and that the minutes of the meeting would reveal that the claim of the petitioner was considered and the merits of other persons had been ignored. 5. The sixth respondent has also filed a counter, stating as follows: https://hcservices.ecourts.gov.in/hcservices/ He joined as a P.G.Assistant in Commerce on 13.03.1985 in the fifth respondent school. He has got the required qualification of M.Com., B.Ed., and M.A. in Economics, which is one of the subjects in Higher Secondary Section and M.Ed. and M.Phil. The writ petitioner joined as a P.G.Assistant on 12.06.1985 in Physics in the fifth respondent school with M.Sc., B.Ed. In the seniority list, he is No.2 and the writ petitioner is No.5. The post of Headmaster became vacant in 1993. The management promoted and appointed the writ petitioner as Headmaster overlooking number of seniors and inasmuch as the writ petitioner was No.7, he was unable to administer the school. The school faced a number of agitations rather the Management itself was put in tough time, which resulted in reduction of result to 35% in Plus 2. There was great agitation against the writ petitioner and he was reverted as his promotion was not approved by the Department. The management, by not conducting any interview, promoted the writ petitioner as Headmaster, ignoring the academic qualification possessed by the sixth respondent in the relevant subject and also higher percentage of result in the subject where he took the class. As against the same, he filed an appeal. The appellate authority did not properly consider his case and dismissed the appeal. Further aggrieved, he filed a revision before the Government. The Government, after calling for remarks and report, was pleased to set aside promotion of the writ petitioner and directed to appoint him as Headmaster, considering merit and ability as approximately equal and being senior and, as such, this Writ Petition is liable to be dismissed. 6. Learned Senior Counsel for the petitioner would contend that the petitioner is fully qualified and more meritorious and able than the sixth respondent to the post of Headmaster of the fifth respondent school and as such the appointment of the petitioner is strictly in accordance with Rule 15 (4) (i) of the Rules. He would further contend that the first respondent erred in holding that both the petitioner and the sixth respondent are equally qualified and their merits and ability are one and the same and the said finding is without application of mind to the various academic qualifications acquired by the petitioner than that of the sixth respondent. The learned counsel would lastly contend that the G.O.Ms.No.305, dated 10.08.1998 permits to count also the service period of the person who worked in other recognised schools for the purpose of appointment of Headmaster in the Higher Secondary Schools, which aspect was not considered by the first respondent. He relied upon the following decisions : (i) B.V.Sivaiah and Others v. K.Addanki Babu and Others, 1998 (6) SCC 720 : "The principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit https://hcservices.ecourts.gov.in/hcservices/ and ability are approximately equal. On the other hand, as between the two principles of seniority and merit, the criterion of "seniority-cum-merit" lays greater emphasis on seniority. But an officer cannot claim promotion as a mater of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted." (ii) A.Murugeswari v. The Director of School Education, Chennai-6 and Others, 2006 (3) CTC 103 : "15. In any event, I am of the considered view that it is for the management to decide about the merit and ability and not for the respondents 1o to 3, as per the Tamil Nadu Recognised Private Schools (Regulation) Act. It is the School Committee which is the appointing authority and also makes promotion which alone can decide about the merit and ability of the candidates. When once it is admitted even by the 1st respondent himself in the impugned order that both the petitioner and the fifth respondent having merit and ability, it was only for the fourth respondent who was being appointing authority and promoting authority to decide about the relative merit and ability. When once the fourth respondent has admittedly decided to appoint and promote the petitioner as P.G.Assistant in Tamil, in my considered view, it is not appropriate for the first respondent to make a relative assessment of merit and ability. As correctly pointed out by the learned Senior Counsel for the petitioner it is under the Annexure III (III) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, the authority has got a right while releasing the grant to verify and satisfy as to whether the appointments are made by the schools under rules in force." "16. While admittedly, it is the case of the respondents 1 to 3 that the appointment of the petitioner was not made against the rules, it is not for the respondents 1 to 3 to interfere with the affairs of the fourth respondent especially to state that to assess the merit and ability of the petitioner and the fifth respondent. The curious aspect in this https://hcservices.ecourts.gov.in/hcservices/ case is that even in the assessment in the impugned order between the petitioner and the fifth respondent apparently, the petitioner stands better than the fifth respondent even on merit and ability." (iii) S.Sethuraman v. R.Venkataraman and Others, 2007 (6) SCC 382 : "3.Rule 15 (4) of the Rules provides that promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. Admittedly, the Managing Committee of the school made comparative evaluation of merit and ability of the appellant vis-a-vis Respondent 1 and opined that the merit and ability of the former is better than the latter. Some other factors including the one that the first respondent was holding the post of Secretary and Correspondent in another school were also taken into consideration. The appellant was, therefore, appointed to the post of Headmaster in the school." "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 https://hcservices.ecourts.gov.in/hcservices/ 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." "27. For the purpose of judging the respective merit and ability of the candidates, their extracurricular activities may be taken into consideration but evidently the appellate authority took into consideration a large number of irrelevant factors, we may notice some of them, which are only illustrative in nature : (i)Participated as a spectator in the Fifth World Tamil Conference held in 1981. (ii)Conducted literary association meetings. (iii)Involved himself in religious, musical service and human relation service. (iv)Served in Homeguards. (v)Undergone computer training." "28. It also failed to take into consideration the relevant fact which inter alia weighed with the Managing Committee of the school as also the order of the appellate authority that as he had served as a Secretary and correspondent in some other schools and, thus, he had not been giving all the attention to his teaching works." "29. The appellate authority failed to take into consideration the fact that the appellant had passed the Accounts test. Even if the same was not relevant, although there existed a Government Order in this behalf, if other activities can be treated to be acts of merit, we fail to understand as to why acquisition of a higher qualification for the purpose of holding the post of Headmaster which would be helpful to him in his functioning as a head of an educational institute would not be relevant. Similarly, the question as to whether the https://hcservices.ecourts.gov.in/hcservices/ “passing percentage” of the students in the subjects taught by the appellant or Respondent 1 for five years was 98% or 100% may not be of much significance." 7. On the other hand, learned Senior Counsel for the sixth respondent would contend that the proper yardstick for assessing the merit and ability is the percentage of the results of the students and that the sixth respondent alone is senior to the petitioner, as he joined the fifth respondent school prior to the joining of the petitioner and, therefore, the order passed by the first respondent does not warrant any interference. The learned counsel has cited a decision in P.Thurai Pandian v. K.Subramanian and Others, 2009 (3) TLNJ 436 (Civil), in which it is held as under : "13. The Joint Director (School Education) may be an appellate authority but there is nothing to show that the statute provides for 'finality' of his decision. The appellate authority itself did not hold any viva voce to judge the respective suitability of the contenders to the post. Apart from the respective qualifications of the candidates and/or adverse reports of the C.E.O.against the first respondent, he did not consider any other aspect of the matter." "14.The Selection process adopted by the Management of the School was unconstitutional. A deliberative process amongst the members of the Selection Committee to choose the best candidate available for promotion was imperative to the post of Head Master was imperative in nature. The Selection Committee and for that matter the Management of the School must not only function in terms of the provisions of the statute, they were required to maintain fairness in the selection making process. Secret ballot would not be a fair procedure for selecting a candidate for the post of Head Master of a school in view of the fact that holder of the said post should not only possess the educational qualifications but also seniority and administrative ability. The Selection Committee is required to consider other qualities of the candidates also for holding the post of Head Master of an institution." https://hcservices.ecourts.gov.in/hcservices/ 8. I have heard the learned counsel for the parties, gone through the records and also given my thoughtful consideration to the rival submissions. 9. As per Rule 15 (4) (i), promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 10. For evaluating merit and ability of a teacher, the educational and professional qualifications possessed by him which are more relevant in the field of teaching the subjects concerned alone need be considered. The possession of other qualifications and more number of degrees outside the purview of the teaching subjects by a teacher is not a relevant factor to find out merit, ability and suitability. In other words, merit and ability can be assessed only in respect of the required relevant qualifications and the percentage of the results produced by the teacher in the subjects he handles. Merit does not mean acquisition of more number of degrees. 11. The required qualification for the post of P.G.Assistant and the Headmaster is P.G.Degree in the subject concerned and B.Ed. The sixth respondent is an M.Com., B.Ed. and the writ petitioner is an M.Sc., B.Ed. In addition, the sixth respondent has got M.Ed., M.Phil. and also M.A.in Economics. The possession of M.A.Economics is related to the subject. He is a P.G.Assistant in Commerce, taking classes for two optional subjects in +2 i.e., Commerce and Accountancy separately. Coming to the writ petitioner, he is a P.G.Assistant in Physics, taking classes only for Physics students. Therefore, the possession of Master Degrees by him in various disciplines, namely, M.Sc. (Physics), B.Ed., M.Ed., M.Phil. (Education), M.A. (History), M.A. (Sociology) and M.A. (Economics), is not a matter to be looked into for the promotion as Headmaster, since he is not teaching the said subjects to the students in Higher Secondary classes of the School. 12. Both the petitioner and the sixth respondent are having the required qualification. Both of them are having M.Ed. and M.Phil. in the relevant subjects. The only yardstick for the assessment of merit and ability is the performance of the students,