Madras High Court
Queen Mary Swarnam vs The Commissioner And Secretary, ... on 21 February, 2003
ORDER E. Padmanabhan, J.
1. The petitioner prays for the issue of a writ of mandamus directing the respondents 1 to 3 to instruct the 4th respondent herein to promote the petitioner as the Headmistress in the 4th respondent's Higher Secondary School in accordance with the 1993 panel with effect from the date on which two vacancies arose in 1998.
2. Heard Mr. S. Parthasarathy, learned counsel appearing for the petitioner, Ms. V. Velumani, learned Additional Government Pleader appearing for the respondents 1 to 3, and Mr. N. Nithyanandam, learned counsel appearing for the 4th respondent.
3. The petitioner, a Post Graduate Assistant in the 4th respondent school, whose next line of promotion is to the post of Headmistress of Higher Secondary School, for which the petitioner claims she is eligible in all respects. The petitioner was included in the Panel dated 17.5.1993 for promotion to the post of Headmistress and she was placed as No. 5. All the four persons placed above her have been promoted between 1993 to 1997, as and when vacancy arose. The said panel was prepared for one year, but it is claimed that it was extended for a further period. However, no proceedings in this respect has been placed before the court. It is alleged that the 4th respondent was prejudiced by the petitioner filing a writ petition seeking for mandamus and therefore she has not been promoted. The petitioner's earlier challenge has been negatived. The earlier Writ Petition No. 13669 of 1997 was disposed of with a direction to consider the petitioner for promotion. As no order was passed, the petitioner initiated contempt proceedings. But the Contempt Petition was dismissed as it was stated by the respondent that the petitioner has been considered, but not included in the panel.
4. The petitioner claims that she is eligible in all respects, but she has not been considered and promoted while others who are far juniors have been promoted. Hence, the petitioner has come forward with the present writ petition seeking for the issue of a mandamus directing respondents 1 to 3 in turn to direct the 4th respondent to promote the petitioner.
5. Respondents 1 to 3 have not filed a counter. The 4th respondent has filed a counter. According to the 4th respondent, under the management of the 4th respondent NLC, there are 17 aided schools and the 4th respondent has been declared as a corporate body. All the schools under the NLC management are treated as single unit for the purpose of promotion and transfer. There is no dispute that the petitioner was included in the panel during the year 1993 and persons empanelled above the petitioner were promoted. In the meanwhile C. Selvaraj, one of the staff member moved an appeal before the Joint Director of Secondary School Education which was allowed. Being aggrieved, Smt. Amsaveni Vellaichamy moved W.P.No:3124 of 1996. Consequent to the interim orders Smt. Amsaveni Vellaichamy was not reverted, but Smt. A. Punithavathy was reverted. The vacancy of Smt. Punithavathy came to be filled up by promoting Mr. C. Selvaraj. When vacancy arose during 1997, fresh selection process was started and a panel was drawn. Aggrieved by the same, the petitioner moved W.P. No. 13669 of 1997 which was disposed of on 11.3.1998 with a direction to consider the petitioner herein also for promotion. Two vacancies arose on 1.6.1998 and a selection was conducted. Ten candidates were invited to appear for interview held on 6.6.1998. The petitioner despite receipt of receiving intimation failed to appear for interview. From among those six who appeared for selection the committee selected Mr. J. Chandrasekaran and Mr. S. Rajendran to fill up the two vacancies of Headmaster. Once again the petitioner instituted contempt application No. 487 of 1998 alleging disobedience of the orders of this court. By order dated 7.10.1998, this court dismissed the contempt application and S.L.P. No. 941 f 1999 against the order in contempt application also came to be dismissed by the Supreme Court on 25.2.1999. Thereafter the present writ petition has been filed by the petitioner seeking for a mandamus.
6. It is contended that the present writ petition is an attempt to re-agitate the matter, which stands concluded and the petitioner is not entitled to move the present writ petition. Having failed to appear in the interview, the petitioner cannot complain at all. Promotion of two others who were empanelled is on merits and on fresh selection, the basis being P.G. Seniority and in accordance with Rule 15(4)(d) read with Clause IV in Annexure V of The Tamilnadu Recognised Private Schools (Regulation) Rules 1974. Pending the writ petition this court directed that the future vacancy shall not be filled up except considering the petitioner for promotion. A selection took place during May 2002 to fill up one post of Headmaster which arose on 1.6.2002. Six candidates were considered including the petitioner. In the selection held on 29.5.2002, R.S. Manimozhi was placed as candidate No. 1 in the order of merit and the petitioner was placed as No. 3. The said Manimozhi has been promoted. There is no vacancy in the post of Headmaster/Headmistress and no vacancy also will arise during 2003. The grievances of the petitioner are all imaginary and she cannot have any grievance as she has been considered, but not selected.
7. According to the rules, the promotion to the post of Headmistress of a Higher Secondary School is governed by the Rule 15(iv)(d) read with Entry IV of Annexure V The promotion has been effected strictly in terms of the Rules and therefore the petitioner cannot have any grievance. The petitioner's contention that her experience in the cadre of B.T. Assistant has to be counted for the purpose of promotion to the post of Headmistress of Higher Secondary School is unsustainable and cannot be countenanced as it runs counter to the statutory rules.
8. The points that arise for consideration are:-
1. Whether the petitioner is entitled to issue of a writ of mandamus as prayed for?
2. Whether the petitioner is entitled to count her service in the cadre of B.T. Assistant for Promotion to the Post of Headmistress in Higher Secondary School?
9. The very prayer in the writ petition itself is rather novel and it is not maintainable. If the petitioner is aggrieved by the promotion of others and non promotion of the petitioner, she should have preferred an appeal before the competent authority and without resorting to that the petitioner has come by way of a mandamus for the third time. The approach and contention of the petitioner in this writ petition is a misconception and on this short ground itself the writ petition is liable to be dismissed.
10. Concedingly, for the post of Headmaster, post of P.G. Assistant or Language Pandit is one of the feeder post. The qualification prescribed for the post of Headmaster or Headmistress of a Higher Secondary Schools are (1) A Master's degree of a University in the State for teaching any of the languages under Parts I and II or subjects under Part III Group A of the syllabus for Higher Secondary Courses or a Master's degree of equivalent standard in any one of the subjects or languages specified in the said syllabus; (2) B.T., or B.Ed., degree or its equivalent; (3) Experience for a period of not less than ten years as B.T. Schools Assistant or Pandit in a secondary School or Training School or Higher Secondary School recognised by the Director of School Education. Proviso to the schedule provides that the experience in the category of Headmaster and Headmistress in a school recognised by the Director of School Education shall be taken into account for calculating the experience in the category of B.T. Assistant.
11. Thus, it is seen a P.G. Assistant who possess the qualification is eligible for being promoted as Headmaster. So also a language pandit. In terms of Regulation 15(4), promotion shall be made on ground of merit and ability seniority being considered only when merit and ability are approximately equal.
12. Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules reads thus:-
15. QUALIFICATIONS, CONDITIONS OF SERVICE OF TEACHERS AND OTHER PERSONS:-
(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 from 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."
13. Rule 15(4)(ii)(d) provides that 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.
14. A Headmaster of a High School as well as Teachers' Training Institute and the P.G. Assistant in Academic subjects also are eligible to be promoted to the post of Headmaster. Such promotion shall be made on ground of merit and ability, seniority being considered only when merit and ability are approximately equal. Admittedly, the petitioner is holding the post of P.G. Assistant. So also those who have been empanelled on the crucial date. P.G. Assistant is a feeder post. Therefore they were considered with reference to their possession of eligible qualification, besides they are being P.G. Assistant and not being a Headmaster of a High School.
15. The learned counsel for the petitioner prepared a tabulation statement and sought to contend that a teacher who has already been promoted is a junior. This is factually not correct. As seen from the Tabulation statement, the P.G. Assistant who has been promoted is appointed earlier in point of time in the cadre of P.G. Assistant as against the petitioner. The petitioner is not claiming the post as Headmaster of a High School, which position she never held. Only as a P.G. Assistant the petitioner claims for promotion. When others are equally qualified, seniors and who have performed well before the Committee, have been rightly empanelled as against the petitioner. This is clear from the counter affidavit and there is no quarrel in this respect. The empanelment or promotion is based on merit and ability when other things being equal, seniority should be considered. In the present case the persons so far promoted are seniors in the feeder post of P.G. Assistant. The contention that her experience as B.T. Assistant should be clubbed together along with the experience in the cadre of P.G. Assistant and if both the experienced are clubbed together she will be senior to one or two promotees is a misconception as the petitioner is considered for promotion to the Post of Headmaster from the cadre of P.G. Assistant which is a feeder category. Therefore, the petitioner cannot contend that her experience as B.T. Assistant is also required to be clubbed together with P.G. Assistant experience and considered. At any rate in the selection it may be a relevant factor, but on that score, the petitioner cannot claim that she should have been empanelled as against the others empanelled and promoted. As seen from the counter affidavit, there was a selection in which the petitioner took part and the selection committed appointed has empanelled other P.G. Assistants as they were seniors. On a comparative merit also the said persons were promoted. The petitioner has not made out a case for the issue of a writ of mandamus as prayed for.
16. In the circumstances, both points are answered against the petitioner and the writ petition is dismissed, but without costs. Consequently, connected WMP is also dismissed.