Madras High Court
V.Panchavarnam vs K.Balasubramanian on 14 December, 2012
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/12/2012 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P(MD)No.14128 of 2003 V.Panchavarnam ... Petitioner Vs 1.K.Balasubramanian Headmaster, Kumaran Middle School, Ramanathapuram, Ramanathapuram District. 2.The Secretary, Kumaran Middle School, Ramanathapuram, Ramanathapuram District. 3.The District Elementary- Education Officer, Ramanathapuram, Ramanathapuram District. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records of the third respondent in his impugned proceedings Mu.Mu.No.3695/A2/2003 dated 26.09.2003 and quash the same as null and void and against the principles of natural justice and consequently direct the second respondent to promote the petitioner herein as B.Ed., Grade Headmaster, Kumaran Middle School, Ramanathapuram District, forthwith. !For Petitioner ... Mr.R.Senthilkumar ^For Respondents ... Mr.V.Panneerselvam (R1) Mr.S.Muthukumar (R2) Mr.V.Kumar, Addl.Govt.Pleader (R3) :ORDER
The challenge in this writ petition is against the order passed by the third respondent, dated 26.09.2003 and consequently, for a direction to second respondent to promote the petitioner as B.Ed Grade Headmaster.
2. The case of the petitioner is that he was appointed as Physical Education Teacher at the second respondent school on 16.10.1973. Thereafter, the petitioner passed B.A. degree in the year 1992, M.A. degree in the year 1993 and B.Ed degree in the year 1995. Thus, the petitioner was fully qualified for the post of Headmaster of middle school. The petitioner was having 29 years of experience and he was the senior most teacher in the second respondent school. On 31.03.2003, the Headmaster post at the second respondent school became vacant, due to the retirement of one A.Manickam. Even before such vacancy arose, the petitioner made a representation to the second respondent on 24.01.2003 for promoting him to the post of Headmaster. The Educational Authorities had also granted promotion to the second respondent school to fill up the said vacancy. Instead of promoting the petitioner by following the Rule 15(4) of the Tamil Nadu Recognized Private School (Regulation) Rules, 1974, the second respondent school resorted to fill up the said post by direct recruitment. An intimation was sent to the petitioner by the second respondent on 23.04.2003, calling upon him to participate in the interview. Both oral and written test were conducted. The first respondent also participated in the interview along with the petitioner and others. The petitioner on the very same day gave further representation to the second and third respondent requesting them to promote him as Headmaster. However, without considering the petitioner's representation and in violation of the said Rule 15(4), the second respondent appointed the the first respondent as Headmaster on 24.04.2003. Thereafter, the appointment of the first respondent also was approved by the third respondent on 26.09.2003. Aggrieved against the said order of approval, the present writ petition is filed.
3. The second respondent filed a counter affidavit and stated that a vacancy arose to the post of Headmaster on 01.03.2003. Since the post of Headmaster is a sensitive one requiring merit and ability including administrative experience, the management decided to fill up the said post on direct recruitment as there were no suitable candidates available in the school. The third respondent granted permission to fill up the said post through his proceedings, dated 01.04.2003. A selection committee comprising of two educationalists was formed and the school requested the District Employment Officer to sponsor suitable candidate. Parallely the school also advertised in the notice board. Consequently, four candidates including the petitioner and the first respondent participated in the selection process. The petitioner got total 32 marks and the first respondent got total 96 marks. Since, the first respondent scored highest marks among the candidates who participated and since he was already working as a Headmaster of another private school, which produced 100% result consecutively in public examination, the selection committee recommended his name for appointment to the post of Headmaster. Accordingly, the school committee deliberated the issue and consequently decided to appoint the first respondent as Headmaster. Thereafter, by an order, dated 23.04.2003, the first respondent was appointed to the said post.
4. It is further stated in the counter affidavit that the selection was made purely based on merit and ability without any prejudice or favour and it was done purely on the recommendation of the selection committee. The first respondent was more meritorious than the petitioner. It is further stated in the counter affidavit that the petitioner had indulged in various misconducts, for which, he was subjected to disciplinary proceedings. When he attained the age of superannuation on 31.10.2006 he was denied re-employment on the ground that his conduct was not good. Aggrieved against such denial of the re-employment, the petitioner filed another writ petition before this Court and the Hon'ble Division Bench of this Court was pleased to hold that the decision of the management was right. The petitioner was also placed under suspension and in the meanwhile as he attained the age of superannuation, the management took a lenient view and allowed him to retire and he also got his accounts settled. The petitioner was not considered to the post of Headmaster only because he lacked merit, ability and good conduct. Further the petitioner had not challenged the appointment of the first respondent and there is no violation of Rule 15(4) as contended by him. On the other hand, the Rule 15(4) was duly followed.
5.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner submitted that when the petitioner is fully qualified to the post of Headmaster, the management ought to have first considered him by following the said Rule 15(4) before resorting to direct recruitment.
6. In support of such contention, the learned counsel relied on an unreported decision of this Court made in W.P(MD)No.810 of 2007, dated 08.08.2011, W.P(MD)No.11092 of 2011, dated 08.12.2011, W.P(MD)No.10248 of 2008, dated 12.08.2011. He also relied on a decision reported in 2009(5) MLJ 1000 in the case of S.Pandara Vadivu vs. Director of Elementary Education for the said preposition.
7.He further contended that there are no other eligible persons within the school other than the petitioner and therefore, only the petitioner ought to have been considered to the post of Headmaster. Merely because, the petitioner had participated in the selection process, he cannot be denied the benefit under Rule 15(4) as there is no estoppal against the statute. In support of such contention, the learned counsel relied on a decision of the Hon'ble Apex Court reported in AIR 1984 SC 1576 in the case of Rishabh Kumar and Sons vs. State of U.P.
8.He further contended that the misconducts alleged against the petitioner were all subsequent developments and the same cannot be put against the petitioner to deny his claim. Therefore, he contended that the impugned action should stand on its own reason and not to be improved by the later or subsequent developments. He further submitted that as the petitioner had already retired, only a notional promotion is sought for so as to enable him to get the pensionery benefits accordingly.
9. Per contra, the learned counsel for the second respondent submitted that there was no violation of Rule 15(4) while filling up the post of Headmaster at the second respondent school. He further contended that Rule 15(4) is not applicable to the post of Headmaster, since appointment of the said post has to be made by selection considering the merit, ability and suitability of the candidates to the said post. The school management considered the suitability of the petitioner as well as other candidates, who participated in the selection process. The petitioner having participated in the selection process, cannot question the selection, thereafter. The petitioner was not having good conduct. As the post of Headmaster is sensitive and more responsible post, the school committee is fully empowered to appoint a suitable person to the said post and the said selection having been made strictly in accordance with rules, the petitioner cannot question the same. The first respondent is working in the said school for the past nine years.
10.The learned counsel for the petitioner while replying to the said submission of the learned counsel for the second respondent, contended that Rule (2)(c) defines (teacher) includes Headmaster and therefore, Rule 15(4) is applicable to the post of Headmaster also.
11. The learned counsel appearing for the first respondent submitted that the first respondent was appointed to the post of Headmaster as early as on 24.04.2003, by following the proper procedure and he is working in the said school all these years. His name was, in fact, sponsored by the Employment Exchange.
12. I have heard the learned counsel appearing for the petitioner as well as learned counsels appearing for the respondents.
13. The only grievance of the petitioner is that he was not considered to the Headmaster post even though he was the senior most teacher in the second respondent school with 29 years of experience and with the requisite educational qualification. Thus, by relying on Rule 15(4) of the said Rules, the petitioner contends that the school should have appointed him to the said post.
14. A reading of the said Rule 15(4) shows that appointments to various categories of the teachers have to be made first by making promotion among the qualified teachers in that school and if no qualified and suitable teachers are available, then to make appointment of other persons employed in that school, provided, they are fully qualified to hold the post of teachers; appointment of teachers from any other school; by direct recruitment. Therefore, no doubt, the school has to first resort to promote from among the qualified teachers within the school. Only when no suitable qualified teachers are available, the school can resort to other methods. The said Rule also contemplates that if the school is intending to appointment from any other school or by direct recruitment, the school committee has to obtain prior permission of the District Educational Officer in respect of pre-primary, primary and middle school. Keeping in mind the said provision let me consider the facts of the present case to find out as to whether the said rule was in fact violated or not. The school committee by passing a resolution dated 01.03.2003 had decided to conduct an interview from among the teachers who are qualified and working in the said school as well as by calling for list of candidates from the Employment Exchange. Accordingly, the petitioner was called upon to attend the interview along with the other candidates. The followings are the marks given by the selection committee to the candidates, who have participated in the selection process:-
Sl.No. Name of the candidates Written Test Educational Method of teaching General Knowledge Appearance Total 1 Thiru.V. Panchavarnam 5 8 9 5 5 32 2 Thiru.K. Balasubramanian 49 10 19 9 9 96 3 Thirumathi.
S.Muneeswari 16 8 10 5 5 44
15.From the above said facts, it is clear that the petitioner was not denied of his right or opportunity for being considered to the post of Headmaster.
16.At this Juncture, it is pertinent to note further that even according to the petitioner, he was the only qualified person available within the school and therefore, he ought to have been considered by following Rule 15(4). The object behind Rule 15(4) is only to see that qualified persons within the school are not denied of their opportunity for considering to the said post. If such opportunity is given, then there cannot be any complaint that there was violation of Rule 15(4). In this case, it is not disputed that the petitioner was called upon to participate in the selection process, of course, with other candidates. Thus, the conduct of the school in inviting the petitioner to participate in the selection process along with other candidates cannot be construed as violation of Rule 15(4), especially under the circumstances, as admitted by the petitioner himself, that he was the only qualified person within the school. No doubt, the school management invited both the petitioner and outsiders at the same time to participate in the selection process. But, such technical flaw itself will not vitiate the entire process of selection, when the fact of the case discloses that there is a substantial compliance of Rule 15(4). Therefore, in my considered view, the petitioner cannot have any grievance under the circumstances where his candidature was also considered by the selection committee. When technicality and substantial justice pitted against each other, it is needless to say that the substantial justice alone should prevail. Therefore, when the petitioner's right to be considered for promotion was not denied, he cannot complain against the school, that his claim was not considered. It is well settled principle that right of promotion is not a fundamental right, whereas, the right to be considered is. When admittedly, the petitioner's right to be considered for promotion was not denied and he was called upon to participate in the selection process, the petitioner's contention of violation of Rule 15(4) has to be rejected. At this juncture, the decision of the Hon'ble Supreme Court reported in 2007(10) SCC 517 in the case of S.B.Bhattacharjee vs. S.D.Majumdar and others is relevant to be quoted.
"13.Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India."
17. Apart from the above said legal position, the petitioner's own conduct will also dis-entitle him any relief. Admittedly, the petitioner, had participated in the selection process and became unsuccessful. The petitioner having participated in the selection process, is not entitled to challenge the same subsequently more so when his candidature was also considered by the selection committee, based on merits, ability and suitability.
18. At this juncture, in support of my above view, following decision is relevant to be quoted 2008(6) CTC 175 in the case of R.Rajanarayanan vs. Joint Director of School Education (Secondary Education) at paragraphs 15 to 19 which read as follows:-
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 had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination."
(iii) In AIR 1995 SC 1088 = (1995) 3 SCC 486 (Madan Lal v. State of Jammu & Kashmir), (SCC p.9) it is held thus, "9. ........ The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
(iv) The above said decisions of the Supreme Court were followed by the Full Bench of this Court in the decision reported in AIR 2000 MADRAS 174 (R.Murali v. R.Kamalakkannan)(FB) and in paragraph 55, question No.2 was answered thus, "Question No.2: We hold that writ petitioners are not entitled to challenge the selection after having participated in the written examination on the principle of estoppel."
16. The above referred judgments are followed in a recent decision of a Division Bench of this Court in (2007) 5 MLJ 648 (Indian Airlines Ltd. v.K.Narayanan), wherein the contention of the management therein that person participated in selection in terms of the notification are estopped from challenging the mode of selection or the conditions contained in the instructions/rules was upheld.
17. I have also considered similar issue in W.P.(MD)Nos.9694 and 9695 of 2007 and dismissed the writ petitions by order dated 22.11.2007, holding that the rules of selection are binding on the candidates, who participate in the selection without demur. The writ appeals preferred against the said order in W.A.(MD)Nos.90 and 91 of 2008 were also dismissed by Division Bench by judgment dated 5.2.2008.
18. In the decision reported in (2008) 4 SCC 171 : 2008 (2) Supreme 328 (Dhananjay Malik & Others v. State of Uttaranchal & Others) in paragraphs 7 to 11 (in SCC), the Honourable Supreme Court held thus, "7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal v. State of J&K this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P., SCR at p.516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge."
19. In the light of the above settled legal position, I hold that the procedure adopted by the third respondent in selecting the petitioner as Headmaster of the third respondent School is legal and valid and the 4th respondent is not entitled to challenge the same in the appeal filed before the first respondent.
19. No doubt, the learned counsel for the petitioner relied on a decision of the Hon'ble Apex Court reported in AIR 1987 SC 1576 in the case of Rishabh Kumar and Sons vs. State of U.P. to contend that there is no estoppal against the statute. There is no quarrel about the said preposition. But at the same time, the facts and circumstances of the each case has to be looked into for applying the said principles. When facts and circumstances of this case are taken into consideration, in my view, the learned counsel's reliance on the said decision is not justifiable. Admittedly, in this case, the school committee, after considering the petitioner's merit, ability and suitability, rejected his claim and appointed the first respondent to the said post, by taking note of his merit, ability and suitability. The marks scored by the petitioner was 32, whereas, the first respondent scored 96 marks.
21. The learned counsel for the petitioner relied on the following decisions in support of his contention that there is a violation of Rule 15(4):
(1) Unreported decision in W.P(MD)No.10248 of 2008, dated 12.08.2011. (2) Unreported decision made in W.P(MD)No.11092, dated 08.12.2011. (3) Unreported decision made in W.P(MD)No.810 of 2007, dated 08.08.2011. (4) 2009(5) MLJ 1000 (as cited supra).
22. I have considered all the above decisions relied on by the learned counsel for the petitioner.
23. In the order made in W.P(MD)No.10248 of 2008, the learned Judge has found that the fifth respondent therein was not having requisite qualification to the post of Headmaster of Elementary School and that teachers working in the very same school including the petitioner therein were not considered by the management before making such appointment of the fifth respondent. It was also found by the learned Judge that no prior permission from the Educational Authority was taken by the school before filling up the post by direct recruitment. Only under those circumstances, the learned Judge has found that there was a violation of Rule 15(4) and consequently appointment of the fifth respondent therein was set aside. The facts of that case are totally different and distinguishable with the facts on hand. Admittedly, in this case, the qualification of the second respondent to hold the post of Headmaster is not questioned by the petitioner. Likewise, the fact remains that the prior permission from the Educational Authority was also obtained by the school management before filling up the said post. It is also an admitted fact that the petitioner was also invited to participate in the selection process. Thus, the petitioner cannot rely on the said decision. The other decision made in W.P(MD)No.11092 of 2011 is also on different set of facts and circumstances. In the said case, the learned Judge upheld the appointment of the petitioner therein, by holding that he was relieved from the fourth respondent school and thereafter, was appointed in the fifth respondent school as Post Graduate Teacher. Thus, the learned Judge found that once the petitioner was relived from the fourth respondent school and thereafter, appointed at the fifth respondent school there was a compliance of Rule 15(4)(2)(b). Here the facts are totally different and as such the said decision relied on by the petitioner is also not applicable to the present case.
24. While coming to the other decision made in W.P(MD)No.810 of 2007, the said decision in fact supports the case of the management in this writ petition, instead of supporting the case of the petitioner. In that case, the petitioner was appointed as Tamil Teacher without prior permission and when the management sought for approval of such appointment, the same was rejected on the ground that the same was made without prior permission. The said order was challenged in the above writ petition on the ground that the appointment was made by the management within the sanctioned strength and it was only after finding out the availability of persons, as per the Rule 15(4) and calling for the list from the Employment Exchange and by conducting the interview by following the selection process, the petitioner was appointed therein. The learned Judge after finding that the third respondent management had appointed the petitioner therein only after finding out as to whether other candidates who are having preferential rights are available and ultimately in the absence of such persons, the third respondent management approached the Employment Exchange and thereafter, appointed the petitioner therein, after conducting the interview. The learned Judge further found that though the school management sought for prior permission, the Educational Authority had neither denied the request nor granted the permission. Therefore, the learned Judge had found that the respondent school therein cannot be found fault with in appointing the petitioner, merely because, the statutory authority has failed to perform his duty as per law. In this case, as already stated supra, the facts are totally different. The Educational Authority had granted permission and thereafter, the school authority had conducted the selection process. Thus, the said decision is also not supporting the case of the petitioner.
25. While coming to the other decision reported in 2009(5) MLJ 1000 (as cited supra), the learned Judge had dismissed the said writ petition, which challenged the order rejecting the grant of approval of the petitioner's appointment therein as Headmistress, only by giving a specific finding that the said school did not obtain prior permission from the Educational Authority before filling up the said post. As the facts of this case clearly disclose that the school management had obtained prior permission, I find that the said decision is also not applicable to the petitioner herein.
26. Further one more vital aspect has to be noted in this case. The petitioner, after attaining the age of superannuation, approached the school management for re-employment till the end of the academic year. But the same was rejected on the ground that the petitioner was not having good conduct. When the same was challenged before this Court in writ petition in W.P(MD)No.10181 of 2006, the learned single Judge allowed the writ petition. However, the management took it on appeal in W.A(MD)No.169 of 2007. The Hon'ble Division Bench, after considering various aspects, has observed at paragraph 13 and 14 as follows:-
"13. According to the condition No.1, the character and the conduct of the teacher should be satisfactory for granting extension on re-employment basis beyond the date of attaining the age of superannuation. The said condition no doubt incorporates in itself a discretion, of course, a guided discretion conferred on the Management to grant extension or not to grant extension on the basis of the character and conduct of the teacher concerned. Admittedly, disciplinary proceedings were initiated and a charge memo was issued against the writ petitioner on 05.04.2005 and pending enquiry, he was also placed under suspension with effect from 25.04.2005. At the conclusion of enquiry, the Enquiry Officer submitted a report holding that four, out of five charges, stood proved. It is also not in dispute that based on the said enquiry report, a second show cause notice was issued to the writ petitioner. But, ultimately, as the writ petitioner was due to retire on superannuation shortly, the Management thought it fit to drop all further proceedings and allow him to retire on superannuation.
14. The fact that the petitioner was not awarded any punishment and the disciplinary proceedings were closed will not be enough to hold that the character and conduct of the writ petitioner was without any blur or blemish. The very fact that he had to face a disciplinary enquiry in which the charges levelled against him were found to be proved, is a valid ground to take his conduct and character not satisfactory for the purpose of granting extension on re-employment basis. Therefore, the refusal on the part of the Management to extend the service of the writ petitioner on re-employment basis beyond the age of superannuation, according to the considered view of this Court, is justifiable. While deciding a case, the subsequent events should also be taken into consideration in order to render complete justice to the parties."
(Emphasis supplied)
27. From the reading of the said order of the Hon'ble Division Bench, it is crystal clear that the conduct of the petitioner was taken into consideration even for making a re-employment and the Division Bench had found that his conduct and character was not satisfactory for the purpose of granting re- employment. The Division Bench also pointed out that while deciding a case, the subsequent events also should be taken into consideration in order to render complete justice to the parties.
28. Thus, the contention of the learned counsel for the petitioner that all those misconducts alleged against the petitioner are subsequent developments and therefore, the same cannot be relied, has to be rejected more so in the light of the specific finding given by the Division Bench in his own case.
29. At this juncture, it is also to be seen that the post of Headmaster is a highly sensitive and responsible post and therefore, the school committee, which is competent authority, is having every right to select and appoint a suitable person in the said post. The conduct of such person, who claims for appointment to the said post should be clean and without any cloud. Such conduct whether it is referable prior to the impugned appointment or after the same does not make any difference while considering his claim. This Court, therefore, is bound to take note of his subsequent conduct also, while considering his claim to the post of Headmaster.
30.At this juncture, it is useful to refer the decision of the Hon'ble Supreme Court reported in AIR 1999 SC 50 in the case of N.Ammad vs. Manager, Emjay High School.
"18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years.
19. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni v. E.C. Kesavan4. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus:
"The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon - except to the extent of prescribing the requisite qualifications and experience - cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'."
24. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished."
31.The additional typed set of papers filed by the school further shows that there were disciplinary proceedings initiated as early as in the year 1999 followed by another proceedings in the year 2003 and thereafter, in the year 2005. Therefore, from the materials placed before this Court, it is clear that disciplinary proceedings were initiated against the petitioner as early as in the year 1999 as well as in the year 2003. Thus, the conduct of the petitioner prior to the impugned appointment was also taken into consideration by the management.
32.Another vital aspect of the matter is that the petitioner had challenged only the order of the third respondent granting approval of the appointment of the first respondent as Headmaster. Admittedly, the said basic order of appointment has not been challenged so far. The order impugned in this writ petition is only granting approval on such appointment and therefore, it is only a consequential order. Therefore, without challenging the basic order, namely, the order of appointment, the present writ petition filed against the consequential order, namely, the approval of such appointment, is not maintainable. At this juncture, it is relevant to quote the decision of the Hon'ble Supreme Court reported in 2010(1) SCC 756 in the case of Edukanti Kistamma vs. Venkatareddy.
"22.It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined (Vide P.Chitharanja Menon v. A.Balakrishnan [(1977)3 SCC 255 : 1977 SCC (L & S) 378 : AIR 1977 SC 1720]; H.V.Pardasani v. Union of India [(1985)2 SCC 468: 1985 SCC(L & S)482 : AIR 1985 SC 781]; and Govt. of Maharashtra vs. Deokar's Distillery [(2003) 5 SCC 669 : AIR 2003 SC 1216]"
33.Thus, by considering all the facts and circumstances, I am of the view that the petitioner is not entitled to the relief sought for in this writ petition.
Accordingly, the writ petition is dismissed. No costs.
skn To
1.The Secretary, Kumaran Middle School, Ramanathapuram, Ramanathapuram District.
2.The District Elementary-
Education Officer, Ramanathapuram, Ramanathapuram District.