K.Venkatesh Prabhu vs The Joint Director [Higher Secondary on 25 July, 2014

[Cites 27, Cited by 0]

Madras High Court

K.Venkatesh Prabhu vs The Joint Director [Higher Secondary on 25 July, 2014

Bench: R.Mahadevan

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:  25.07.2014

CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN

W.P.(MD)No.3480 of 2011
and
M.P.No.2 of 2011

K.Venkatesh Prabhu,
B.T.Assistant [Science],
Z.K.M.Higher Secondary School,
Bodinayakkanur,
Theni District.	 						: Petitioner
			
Vs.

1.The Joint Director [Higher Secondary],
   Directorate of School Education,
   DPI Campus, College Road,
   Chennai.

2.The Chief Educational Officer,
   Theni District, Theni.

3.The District Educational Officer,
   Uthamapalayam, Theni District.



4.The Secretary,
   Z.K.M.Higher Secondary School,
   Bodinayakkanur,
   Theni District.

5.S.Kamaraj,
   P.G.Assistant [Physics],
   Z.K.M.Higher Secondary School,
   Bodinayakkanur, Theni District.	    			: Respondents

PRAYER
	Writ Petition is filed under Article 226 of the Constitution of India
for the issue of a Writ of Certiorarified Mandamus to call for the records
relating to the order passed by the fourth respondent in his proceedings Nil,
dated 18.01.2011, and quash the same as illegal and consequentially to direct
the fourth respondent to consider the petitioner for appointment by promotion
as P.G.Assistant [Physics] in the light of Rule 15(4)(ii)(i) of the Tamil
Nadu Recognized Private Schools [Regulation] Rules, 1974.

!For Petitioner			: Mr.M.Ajmal Khan
				  Senior Counsel
				  For Mr.H.Mohammed Imran
^For Respondent Nos.1to3	: Mr.J.Gunaseelan Muthiah
				  Government Advocate
For Respondent No.4		: Mr.M.Muthugeethayan
For Respondent No.5		: Mr.P.Muthuvijayapandian
				
:ORDER

The writ petition has been filed challenging the appointment of the 5th respondent as PG Assistant in the 4th respondent school and for consequential direction to appoint the petitioner in the said post in the light of Rule 15(4) (ii) (i) of Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974.

2. The brief facts of the case is as follows:

2.1. The petitioner who was appointed as B.T Assistant on 02.11.2007, qualified himself for being appointed as P.G Assistant (Physics) and applied for the same as soon as the post fell vacant on 01-06-2010. Despite representations, the 4th respondent failed to follow Rule 15(4) (ii) (i) of Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974 and called for application for appointment through direct recruitment and later appointed the 5th respondent by the impugned order. Aggrieved the petitioner is before this court.

3. The Learned Senior Counsel appearing for the petitioner painstakingly contended that on the date of vacancy, the petitioner was fully qualified to be appointed as the P.G Assistant (Physics). The Counsel further pointing out to Rule 15(4) (ii) (i) of Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974, contended that only in the absence of the eligible candidate for promotion from the same school, direct recruitment or appointment from other school can be made. The Learned Counsel further contended that the 4th respondent has wantonly to favour the 5th respondent has delayed the appointment until the 5th respondent had qualified himself and disregarding the eligibility on the cut off date, has appointed the 5th respondent. The Learned Counsel further contended that on the crucial relevant date, the petitioner was the only eligible candidate and therefore, the 4th respondent ought to have promoted the petitioner. The learned Counsel further placing reliance upon the resolution of the school committee contended that the 4th respondent had all along been furnishing false particulars to the 3rd respondent only with malafide intentions to appoint the 5th respondent and that the resolution does not reflect that the name of the petitioner was even considered.

4. In support of his contentions, the learned Senior Counsel also placed reliance upon the following judgments:

Mohinder Singh Gill Vs. Chief Election Commissioner, reported in AIR 1978 SUPREME COURT 851;

A.Ruckmani Vs. The Correspondent, Gandhiji Aided Middle School, reported in 2003 (2) MLJ 4;

Union of India and others Vs. Sangram Keshari Nayak, reported in 2007 (6) SCC 704;

P.Mohan Pillai Vs. State of Kerala, reported in AIR 2007 SC 2840; K.Anandhi Vs. District Educational Officer, [W.P.Nos.3455 and 4467 of 2004, dated 06.03.2008];

R.Jeeva Vs. The Director of Elementary Education, [W.P.No.4947 of 2001, dated 31.07.2009].

Union of India and others Vs. Hemraj Singh Chauhan and others, reported in 2010 (4) SCC 290;

Kranti Associates Private Limited Vs. Masood Ahmed Khan and others, reported in 2010 (9) SCC 496;

State of Orissa and another Vs. Mamata Mohanty, reported in 2011 (4) MLJ 692 (SC); and Commissioner of Income Tax Vs. Chhabil Dass Agarwal, reported in 2014 (1) SCC 603;

and sought for setting aside the impugned orders and for consequential directions.

5. Per contra, the learned Counsel appearing for the 3rd respondent contended that after receipt of the application of the petitioner, the 4th respondent was directed to clarify few doubts by letter dated 02.09.2010 and in reply, the 4th respondent had stated that the application of the petitioner seeking promotion was under consideration by the school committee. Since the appointment of the petitioner was not recommended by the school committee and the appointment of the 5th respondent was recommended, the 3rd respondent had ratified the appointment and hence sought the dismissal of the writ petition.

6. Whereas the learned Counsel appearing for the 4th respondent contended that without exhausting the alternative remedy by way of appeal under the Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974, the writ petition has been filed and hence, on this ground alone, the same may be dismissed.

7. He further contended that the appointment of the 5th respondent was based on seniority and on comparative efficiency. The Counsel further contended that since the appointment of Mr.M.Somasundaram as Head Master fell vacant, one Mrs. Brinda Devi was temporarily appointed as P.G. Assistant.

8. The Counsel also contended that the petitioner having failed to challenge the temporary appointment of Mrs.Brinda Devi cannot be permitted to challenge the appointment of the 5th respondent after approval by the 3rd respondent. The Counsel further contended that the crucial date is only the date of consideration and not the date on which the vacancy arose.

9. The Counsel further submitted that it is only in January 2011, the applications of the petitioner and 5th respondent were considered and therefore there is nothing malafide in the appointment of the 5th respondent. He also placed reliance upon the following judgments:

State of Uttranchal and another Vs. Dinesh Kumar Sharma, reported in 2007 (1) SCC 683;

S.Sethuraman Vs. R.Venkataraman and others, reported in 2007 (6) SCC 382; and G.Velmurugan Vs. The District Elementary Educational Officer, Virudhunagar District reported in 2012 (1) CWC 224, and prayed for the dismissal of the writ petition with exemplary costs.

10. Heard the submissions made by the learned Counsel on either side. The original file relating to P.G. Assistant (Physics) was called for and perused.

11. In the judgment in G.Velmurugan Vs. The District Elementary Educational Officer, Virudhunagar District reported in 2012 (1) CWC 224, relied on by the Counsel for the 4th respondent, this court has held as under:

"9. When the Rule came to be challenged before this Court, the Rule was upheld by this Court. In the present case, in case of promotion, it is only the school committee, which can decide the matter and therefore, ultimately, the decision will have to be taken on the basis of the resolution made by the School Committee and proposal will have to be forwarded to the competent authority for approval. In case of any person who is aggrieved by the decision of the school committee, or any Order made, Rule 15(4-A) provides for an appeal to the competent authority an in case Pre-primary, Primary or Middle School, the competent authority is the Chief Educational Officer of the revenue district. Therefore, the stage for the petitioner challenging any appointment of the third respondent School, Sattamuni Saliar Primary School, will arise only when the proposals are sent to the department and the department also approves his appointment.

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11. The question of promoting a person in terms of Rule 15(4) and the power of the School Committee as well as the power of the appellate authority came to be considered by the Supreme Court in S.Sethuraman v. R. Venkataraman, (2007) 6 SCC 382, wherein the Supreme Court has held that in such matters, the school committee decision will have a baring and in case decision was taken contrary to the provisions of the Act and Rules, it is open to the appellate authority to reconsider the same and pass appropriate orders. In any event, the power of the High Court under Article 226 of the Constitution of India to review the decision is very limited. It is necessary to refer the following passages found in paragraph numbers 16 to 19, which is as follows:

"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.

18. It is unfortunate that the High Court failed to apply the correct principles of law in this case. Each one of its reasons, in our considered opinion, is wholly untenable. It suffers from misdirection in law.

19. As noticed hereinbefore, the matter was remitted to the Joint Director of School Education by the High Court with the consent of the parties but the High Court in its order categorically directed the said authority to consider the matter strictly within the scope of Rule 15 of the Rules. The High Court did not and could not enlarge the scope of the appeal.""

12. The Learned senior Counsel in reply, had contended that the writ petition was maintainable and placed reliance upon the judgment in Commissioner of Income Tax Vs. Chhabil Dass Agarwal, reported in 2014 (1) SCC

603. In the above Judgement, the Honourable Apex Court has held as follows:

"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non- entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article

226. [(See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa,(1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499)].

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15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419], Titagarh Paper Mills case [(1983) 2 SCC 433 : 1983 SCC (Tax) 131]and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

13. In view of the facts of the case, the issue of maintainability and the validity of the impugned order are being considered together.

14. In the case on hand, the case of the petitioner is that the appointment of the 5th respondent is contrary to the provisions of the Tamil Nadu Private School Regulations Act. It is also the case of the petitioner that the 4th respondent has acted with malafide intentions to favour the 5th respondent. The 4th respondent in his reply dated 07.09.2010 to the query of the 3rd respondent regarding the promotion of the petitioner to the post of P.G.Assistant (physics) has stated that the application of the petitioner is pending consideration before the school committee. Upon perusal of the original records, it is evident that the school committee has not considered and discussed the eligibility of the petitioner in the meeting held on 18.01.2011. This act of the school committee is in defiance of the fundamental principles of judicial procedure.

15. In the judgment in Union of India and others Vs. Hemraj Singh Chauhan and others, reported in 2010 (4) SCC 290, the Honourable Apex Court has held as under:

?36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."

16. In the judgment in Union of India and others Vs. Sangram Keshari Nayak, reported in 2007 (6) SCC 704, the Honourable Apex Court has held as follows:

"11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him."

17. In the judgment in Kranti Associates Private Limited Vs. Masood Ahmed Khan and others, reported in 2010 (9) SCC 496, the Honourable Apex Court while mandating the necessity to record reasons, has held as follows:

"47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct.

A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process"."

18. In the judgment in Mohinder Singh Gill Vs. Chief Election Commissioner, reported in AIR 1978 SUPREME COURT 851, the Constitutional Bench of the Honourable Apex Court has held as follows:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC

16) (at p.18):

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

19. In K.Anandhi Vs. District Educational Officer, [W.P.Nos.3455 and 4467 of 2004, dated 06.03.2008], this Court has held as follows;

"11. The promotion given to the 4th respondent is also without considering the merit and ability of the 4th respondent by not following Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The same is evident from the School Committee resolution dated 14.2.2004 and in resolution No.2 it is stated that from 1.11.2002 the School Committee granted promotion to M.Selvan on the basis of seniority in the cadre of Secondary Grade Teacher and therefore proposal is submitted to the District Educational Officer for approval. The said resolution clearly establishes a fact that Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, was not followed even while giving promotion to the said M.Selvan by the School Committee on 1.11.2002.

12. (a) Similar issue as to whether the merit and ability should be considered before giving promotion to the higher cadre in the private schools from the lower cadre, came up for consideration before the Supreme Court in the decision reported in 2008 (1) LW 763 = (2007) 6 SCC 382 (S. Sethuraman v. R.Venkataraman). In paragraphs 16 and 17 it is held as follows:

"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." After noticing the said factual aspect, the Supreme Court remitted the matter back to the Joint Director of School Education for consideration of the matter afresh taking note of the merits and demerits of the contesting parties."

(b) While giving promotion, merit and ability are bound to be considered by the School Committee in accordance with Rule 15(4) of the Rules, as per the Division Bench judgment of this Court reported in 1994 (1) MLJ 130 (D.Jeyaselvi v. The Government of Tamil Nadu). The writ appeal before the Division Bench arose against the order of the learned single Judge cancelling the selection on the ground that merit and ability of each of the candidates were not assessed and recorded by the School Committee. The contention of the appellant therein was that the School Committee having found the appellant as superior in merit and ability than the other candidate, the learned single Judge ought not to have set aside the promotion and remit the matter for fresh consideration to record reasons. Negativing the said contention in paragraph 4 the Division Bench held as follows:

"4. .......... In this regard, it may be pointed out that Sub-rule (4) of Rule 15 of the Tamil Nadu Recongnised Private Schools (Regulation) Rules (1974) specifically states that promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. Therefore, in order to satisfy or to act in accordance with sub-rule (4) of Rule 15 of the Rules, the committee must place on its records or the proceedings of the committee must disclose that the selected candidate is more meritorious and is also superior in his ability than the one who is not selected. If we have to accept the contention of the learned counsel for the appellant, then, we will be giving an unbridled power to the Selection Committee, which can arbitrarily say, of the two candidates appearing before it, one is more meritorious and another is less meritorious without any basis whatsoever. Such arbitrary exercise of power cannot be permitted or upheld as Art.14 of Constitution strikes at such arbitrary exercise of power. Therefore, it is necessary for the Selection Committee to record the grounds of merit and ability on the basis of which it has made the selection. This interpretation of ours also accords with the very scheme of the Act and the Rules. It may be pointed out here that every decision of the Selection Committee is made appealable to the Appellate Authority. If the Selection Committee is not required to state the grounds on which the the selection is made, it is not possible to hold on what basis, the Appellate Authority should consider the validity of the order passed by the Selection Committee, unless it be that Selection Committee gives the grounds for coming to the conclusion that the selected candidate is more meritorious and is superior in his ability than the one who is not selected. We have already re-

produced the relevant portion of the Supreme Court's decision relied upon by the learned counsel for the appellant in National Institute of Mental Health & Neuro Sciences v. Dr.K.Kalyanaraman, AIR 1992 SC 1806: 1992 Lab.I.C. 1800:

(1992) 2 SCC 461. That decision proceeds on the basis that if there are no Rules, it is not necessary for the Selection Committee to pass a considered order and when the Rule provides that it must make the selection on the ground of merit and ability, the Selection Committee is required to state what are those grounds on which a candidate is selected in preference to the one who is not selected. It is also relevant to notice that the Supreme Court in the aforesaid case was dealing with the case in which the decision of a Selection Committee was not made appealable. Therefore, we are of the view that the ultimate decision arrived at by the learned single Judge is just and proper and as such, it does not call for interference. Consequently, it follows that this writ appeal must fail. It is accordingly dismissed."

(c) A learned single Judge of this Court in the decision reported in 1991 WLR 694 (P.Rajendran v. The Government of Tamil Nadu) in paragraph 9 held as follows:

"9. ........ it is seen that under R.15(4) the appointment to the post of Headmaster is by process of selection, merit and ability is the criteria and seniority will count only where merit and ability are approximately equal. Therefore, the Management is not bound to appoint a person merely because, he is senior in service. They can take note of the merit and ability of the respective candidates, who aspire for the post of Headmaster. ......."

13. It is to be noted that for promotion to any teaching post in private schools, Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, is bound to be followed. The School Committee while promoting the petitioner on 1.6.1997 has not considered the merit and ability and the assessment of merit and ability said to have been made according to the petitioner Ganapathy is only by the Secretary of the School, who has no independent power to give promotion as per Rule 13(4) of the Rules. The said rule clearly states that the secretary of the School Committee shall act on the basis of the resolution passed at the meeting of the School Committee. The power of appointment is also one of the functions of the School Committee as per Section 18(1)(b) of the Act. Hence the order of promotion given to the petitioner from 1.6.1997 cannot be treated as valid promotion order. Similarly, 4th respondent was given promotion as B.T. Assistant (History) only on the basis of Seniority in terms of the order of the first respondent. The merit and ability having not been considered as per Rule 15(4), the promotion given to him also cannot be treated as valid promotion as the same was made contrary to the statutory rule."

20. In R.Jeeva Vs. The Director of Elementary Education, [W.P.No.4947 of 2001, dated 31.07.2009], this Court has held as under:

"14. Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, reads as follows:

"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.

(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, Teacher 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." The above said Rule clearly establishes the fact that promotion shall be made on the basis of merit and ability and seniority will be considerd only when merit and ability are approximately equal and while assessing the merit and ability of the candidates, the School Committee is bound to record the merits and demerits of the candidates i.e, the Committee resolution must show that the selected candidate is more meritorious and superior in ability than the person, who is not selected.

(a) The said position is explained in the Division Bench Judgment of this Court reported in (1994) 1 MLJ 130 (Jeyaselvi v. Government of Tamil Nadu). The writ appeal before the Division Bench arose against the order of the learned single Judge cancelling the selection on the ground that merit and ability of each of the candidates were not assessed and recorded by the School Committee. The contention of the appellant therein was that the School Committee having found the appellant as superior in merit and ability than the other candidate, the learned single Judge ought not to have set aside the promotion and remit the matter for fresh consideration to record reasons. Negativing the said contention in paragraph 4 the Division Bench held as follows:

"4. .......... In this regard, it may be pointed out that Sub-rule (4) of Rule 15 of the Tamil Nadu Recongnised Private Schools (Regulation) Rules (1974) specifically states that promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. Therefore, in order to satisfy or to act in accordance with sub-rule (4) of Rule 15 of the Rules, the committee must place on its records or the proceedings of the committee must disclose that the selected candidate is more meritorious and is also superior in his ability than the one who is not selected. If we have to accept the contention of the learned counsel for the appellant, then, we will be giving an unbridled power to the Selection Committee, which can arbitrarily say, of the two candidates appearing before it, one is more meritorious and another is less meritorious without any basis whatsoever. Such arbitrary exercise of power cannot be permitted or upheld as Art.14 of Constitution strikes at such arbitrary exercise of power. Therefore, it is necessary for the Selection Committee to record the grounds of merit and ability on the basis of which it has made the selection. This interpretation of ours also accords with the very scheme of the Act and the Rules. It may be pointed out here that every decision of the Selection Committee is made appealable to the Appellate Authority. If the Selection Committee is not required to state the grounds on which the the selection is made, it is not possible to hold on what basis, the Appellate Authority should consider the validity of the order passed by the Selection Committee, unless it be that Selection Committee gives the grounds for coming to the conclusion that the selected candidate is more meritorious and is superior in his ability than the one who is not selected. We have already re-

(1992) 2 SCC 461. That decision proceeds on the basis that if there are no Rules, it is not necessary for the Selection Committee to pass a considered order and when the Rule provides that it must make the selection on the ground of merit and ability, the Selection Committee is required to state what are those grounds on which a candidate is selected in preference to the one who is not selected. It is also relevant to notice that the Supreme Court in the aforesaid case was dealing with the case in which the decision of a Selection Committee was not made appealable. Therefore, we are of the view that the ultimate decision arrived at by the learned single Judge is just and proper and as such, it does not call for interference. Consequently, it follows that this writ appeal must fail. It is accordingly dismissed."

(b) The same was followed by another Division Bench of this Court in the decision reported in 2007 WLR 258 (P.Thurai Pandian v. K.Subramanian & 4 Others) wherein in para 17 it is held thus:

"17. ......................... We have already referred to Rule 15(4) which amply shows that promotion shall be made on the basis of merit and ability and seniority would be considered only when merit and ability are approximately equal. Likewise, we have also referred to relevant provisions of the Act and Rules relating to constitution and functioning of School Committee. In other words, the statute recognised the role of the School Committee as paramount in the administration of school."

2008 (1) LW 763 (S.Sethuraman v. R.Venkataraman) in paragraphs 16 and 17 held as follows:

"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."

(d) A learned single Judge of this Court in the decision reported in 1991 WLR 694 (P.Rajendran v. The Government of Tamil Nadu) in paragraph 9 held as follows:

"9. ........ it is seen that under R.15(4) the appointment to the post of Headmaster is by process of selection, merit and ability is the criteria and seniority will count only where merit and ability are approximately equal. Therefore, the Management is not bound to appoint a person merely because, he is senior in service. They can take note of the merit and ability of the respective candidates, who aspire for the post of Headmaster. ......."

(e) Following the above judgments, in W.P.Nos.4467 and 3455 of 2004, by common order dated 6.3.2008, I gave direction to select B.T Assistant (History) post in a private aided school. The said decision was affirmed in W.A.No.517 and 518 of 2008 dated 28.4.2008 by observing as follows:

"............ The learned single Judge had rightly directed the authorities to fill up the B.T.Assistant (History) post strictly in accordance with Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, considering the merit and ability of two candidates are found approximately equal, then seniority has to be considered for selecting a person as B.T.Assistant (History) under the said rule. We are in entire agreement with the order of the learned single Judge. The writ appeals are dismissed."

15. The learned counsel for the 4th respondent has rightly contended that the School Committee committed a patent error while considering the qualifications possessed by the 4th respondent. It is not in dispute that the 4th respondent has passed B.A. and B.Ed., degrees from Madurai Kamaraj University in first attempt. The petitioner secured second class in theory and first class in practical in B.Ed degree. However, the School Committee in its resolution recorded that the 4th respondent has passed the said degrees in two attempts. The said error committed by the School Committee is an error apparent on the face of the record. The learned counsel for the 5th respondent is unable to explain the said error committed by the School Committee, which is reflected in the School Committee resolution. Further, the service register of the 4th respondent was with the second respondent on 16.11.2000 as per the averments in the counter affidavit filed by the 4th respondent. The same is not denied by the 5th respondent. Thus, the decision of the School Committee is contrary to records and without considering the relevant facts, but considered the irrelevant facts while arriving at the decision. In view of the said illegality committed by the School Committee while assessing and recording the merits and ability of the petitioner as well as the 4th respondent, pursuant to which the petitioner was given promotion as Headmistress of the School, the decision of the School Committee cannot be sustained.

16. As held by the Division Bench of this Court in the above referred decision and the School Committee having been vested with the power to select and appoint teachers and other persons employed in private School under section 18 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which is also constituted under section 12 of the Act, the School Committee shall consider all the aspects while exercising its powers during selection of the Headmaster of the School in terms of Rule 15(4) read with 15(6).

17. The relevant facts having not been considered by the School Committee, the selection and promotion of the petitioner as Headmistress cannot be sustained. The reason stated by the respondents 1 and 2, though not be treated as valid reason to reject the approval of appointment of the petitoner, in view of my above finding that the School Committee having not applied its mind and assessed the merits and ability of the petitioner and the 4th respondent properly, the selection and promotion of the petitioner as Headmistress even by 16.11.2000 is to be held illegal."

21. Per contra, the Counsel for the 4th respondent has relied upon the following judgments to contend that when the managing committee has applied its mind, judicial review is not available.

22. In the judgment in S.Sethuraman Vs. R.Venkataraman and others, reported in 2007 (6) SCC 382, the Honourable Apex Court, has held as under:

"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 No. 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, the respondent No. 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."

23. It also evident from the communication of the 3rd respondent dated 02.09.2010, that the 4th respondent who had earlier recommended the increase in pay for the petitioner after completion of Msc (Physics) in May 2010 itself has misrepresented to the 3rd respondent that no qualified teachers are available in the school. In reply, the 4th respondent has also claimed that the application of the petitioner is pending before school committee. Upon perusal of the file, despite the fact that the petitioner had submitted his application for promotion even before the 5th respondent obtained the qualification, the school committee had not considered the petitioner at the meeting. In the absence of even consideration, there could be no discussion. Nevertheless, the minutes and resolution also do not disclose that any discussion took place. Therefore the contention of the 4th respondent before this court that after discussions, the 5th respondent was appointed based on seniority and comparative ability is false and rejected. From the resolution, it is clear that only the seniority and qualification has been considered.

24. From the judgments relied upon by the Counsel for the petitioner, it is clear that the right to be considered for promotion is a fundamental right. It is evident from the records that the fundamental right of the petitioner to be considered for promotion has been breached. From the records, it is also clear that the school committee for the period 25.02.2008 to 24.02.2011 was approved on 28.03.2008 and the reconstitution of the committee was also made on 28.06.2010. Therefore, nothing prevented the school committee to convene a meeting immediately after the post fell vacant. There can be nothing more important than filling up a vacant post immediately after it fell vacant. The act of the 4th respondent and the school committee in delaying the constitution of the school committee, keeping the application of the petitioner pending, allowing the 5th respondent to obtain the qualification and non-consideration of the petitioner in the committee meeting can only be termed as malafide to favour the 5th respondent for the reasons better known to themselves. In the above circumstances, the judgments relied upon by the 4th respondent are not applicable to the present facts of this case and this court is of the view that the writ petition is maintainable and the decision of the school committee is vitiated.

25. The next point for consideration is the relevant date.

26. The learned Senior Counsel has contended that the relevant date would be 01.06.2010, i.e the date on which the post fell vacant.

27. In the judgment in P.Mohan Pillai Vs. State of Kerala, reported in AIR 2007 SC 2840, the Honourable Apex Court has held as under:

"11. It is now well-settled that ordinarily rules which were prevailing at that time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."

28. In the judgment in A.Ruckmani Vs. The Correspondent, Gandhiji Aided Middle School, reported in 2003 (2) MLJ 4, the Division Bench of this Court has held as under:

"5. What would be the relevant date would be a question in this appeal. The learned Single Judge has taken a view that on the date when the post was filled up, i.e., on 2.2.1994, it is an admitted position that the appellant did not have the necessary qualification of B.Ed., though she had appeared for the examination in the month of May, 1993, since the results of the examination were not declared till March, 1994. Under the circumstances, the contention of the learned counsel for the appellant cannot be accepted that the relevant date should have been the date on which the Joint Director decided the appeal, i.e., on 31.7.1995. The entitlement of the petitioner for being appointed in the post would always be with reference to the date on which the post fell vacant and when she staked the claim to that post.

6. ......... For the purpose of promotion, the relevant date would be only the date when the appellant has acquired or is in possession of the necessary qualification. Admittedly, the appellant did not have that qualification on 2.2.1994, inasmuch as she was not qualified successfully in her B.Ed., examination and it cannot be said that she was having the qualification of graduation with B.Ed. degree. Under the circumstances, it will have to be viewed that the appellant did not have the qualification on the date when the post fell vacant and sought to be filled in."

29. Per contra, the Counsel for the 4th respondent has relied upon the judgment in State of Uttranchal and another Vs. Dinesh Kumar Sharma, reported in 2007 (1) SCC 683, wherein the Honourable Apex Court has held as follows:

"34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in the case of Jagdish Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC 456 : 1998 SCC (L&S) 1156.

***** ****** ******

36. This observation of the High Court in our view is erroneous. The High Court while observing that, "the appellants rejected the representation of the respondents on the ground that since the appointment letter was issued to the respondent on 19.11.1999, he is entitled to his seniority from that date. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1st May, 1996 and second vacancy on 1st June 1996 had come to the knowledge of the Commission the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled for the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999", has committed an error in understanding and appreciating Rule 17 and 21 of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991, which categorically states that the date of 'substantive appointment' will be the date that shall be taken for determining promotion, seniority and other benefits."

30. A scrupulous reading of the judgment relied upon by the 4th respondent would indicate that the said judgment is not applicable to the facts of the case. The issue therein was when the appointment itself is subsequent to the date on which the post fell vacant, can seniority from the date of vacancy be claimed. In the instant case, the issue is the date of entitlement for a candidate to be appointed. The judgments relied upon by the Counsel for the petitioner squarely fit into four corners of this case. The Apex Case court and the Division Bench of this Court have clearly held that the crucial date for considering the eligibility would be the date on which the post fell vacant. In the instant case, the post fell vacant on 01.06.2010. Admittedly, only the petitioner was eligible and the 5th respondent was not eligible. Without considering the relevant facts for determining the eligible candidates, the school committee comprising of the 4th respondent also, considered irrelevant facts and appointed the 5th respondent. In view of the fact that the 5th respondent was ineligible as on 01.06.2010, the appointment is invalid.

31. Coming to the next line of defence raised by the 4th respondent that the petitioner having not challenged the temporary appointment of one Mrs.Brinda Devi, cannot now challenge the appointment of the 5th respondent, this court upon perusal of the original records do not find any such order appointing Mrs. Brinda Devi. Rule 15 (4) also does not enable any such ad-hoc appointment. Further, when the petitioner was eligible and available, there is no necessity to appoint a temporary staff.

32. In the judgment in State of Orissa and another Vs. Mamata Mohanty, reported in 2011 (4) MLJ 692 (SC), the Honourable Apex Court has held as under:

"19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. ORDER BAD IN INCEPTION:

20. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide:Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998 SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC1964; and Ritesh Tiwari & Anr. v.

State of U.P. & Ors., AIR 2010 SC 3823).

The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. (Vide Dr. M.S. Patil v. Gulbarga University & Ors., AIR 2010 SC 3783)."

33. From the above judgment, it is clear that the appointment of Mrs. Brinda Devi, even if it was actually made, could only be termed as illegal. Any such temporary appointments can be made only in the absence of eligible candidates as contemplated under Rule 15 (4). Such ad-hoc appointments would never take away the fundamental right of an eligible candidate to be considered for promotion. Further, since the 4th respondent himself has in his communication dated 07.09.2010 stated that the application of the petitioner is under consideration with the school committee, the 4th respondent is estopped from taking such stand and the same is rejected. Since the promotion order of the 5th respondent is bad at its inception, just because he has continued in the post, the same would not create any right to him.

34. For the foregoing reasons, the impugned order appointing the 5th respondent on 18.01.2011 is set aside. The 4th respondent is directed to promote the petitioner, who was the only eligible candidate on the crucial date to the post of P.G Assistant (Physics) after placing the same before the school committee with a period of 4 weeks from the date of this order and the 3rd respondent shall approve such promotion within two weeks from thereon.

35. In the result, the writ petition is allowed as above. No costs.

1.The Joint Director [Higher Secondary], Directorate of School Education, DPI Campus, College Road, Chennai.

2.The Chief Educational Officer, Theni District, Theni.

3.The District Educational Officer, Uthamapalayam, Theni District.

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