BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30/07/2009
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
Writ Appeal(MD) No.246 of 2009
and
M.P.(MD)No.1 of 2009
Susila ... Appellant/3rd Respondent
Vs.
1.Kalyani ... 1st Respondent /Petitioner
2.The Commissioner,
Madurai Corporation, Madurai.
3.The Chief Educational Officer,
Corporation Schools, Madurai.
... Respondents 2 and 3/Respondents 1 & 2
Prayer
Writ Appeal filed under Clause 15 of Letters Patent against the order of
the learned Single Judge, dated 28.05.2009 made in W.P.(MD)No.8188 of 2008 filed
under Article 226 of the Constitution of India praying for a Writ of
Certiorarified Mandamus, to call for the records of the order passed by the
first respondent, dated 01.09.2008 in Na.Ka.No.A1/00016/08, quash the same and
consequently, direct the first respondent to promote the petitioner as Higher
Secondary School Headmaster.
!For Appellant ... Mr.C.Selvaraju,
Senior Counsel for Mr.S.Mani
^For 1st Respondent ... Mr.V.Selvaraj, S.C.,
for Mr.N.Dilip Kumar
For 2nd Respondent ... Mr.M.Suresh Kumar,
For 3rd Respondent ... Mr.R.Janakiramulu,
Special Government Pleader.
:JUDGMENT
D.HARIPARANTHAMAN, J
The appellant was a Headmistress in a high school under the control of the
second respondent. She was promoted to the post of Headmistress of Higher
Secondary School from High School by the second respondent, by an order, dated
01.09.2008. The said order was challenged by the first respondent herein in
W.P(MD)No.8188 of 2008. The writ petition was allowed by the learned single
Judge on 28.05.2009. The present appeal is against the said order.
2.We have heard Mr.C.Selvaraju, learned Senior Counsel for the appellant,
Mr.V.Selvaraj, learned counsel for the first respondent, Mr.M.Sureshkumar,
learned counsel for the second respondent and Mr.R.Janaki Ramulu, learned
Special Government Pleader appearing for the third respondent.
3.The special rules for the Tamil Nadu Higher Secondary Educational
Service framed under Article 309 of the Constitution of India governs the matter
of promotion to the post of Headmaster in Higher Secondary Schools. The Higher
Secondary School Headmaster belongs to Class-I service under the Rules. The Post
Graduate Assistant in languages belongs to Category-I of Class II service and
the Post Graduate teacher in academic subjects belongs to Category II of Class
III service. The inducted teachers at Higher Secondary Schools belong to
Category III of Class II service. The vacancies arising in Class-I service,
namely, the Headmasters in Higher Secondary Schools, are to be filled in the
ratio of 2:5:2, i.e., two Headmasters in High Schools by recruitment by
transfer, 5 Post Graduate Assistants by promotion and 2 inducted teachers by
promotion. Further, more importantly, while ensuring the proportion of
appointment in the service, cycle for such appointment to the post of Headmaster
in the Higher Secondary Schools is also provided in the Special Rules.
4.The relevant rule in this case is extracted hereunder:
“i)Vacancies arising in Class I of the service shall be filled up so as to
ensure that the proportion of appointment in the service in the said class by
recruitment by transfer/by promotion from Categories 1 and 2 of Class II and
Class III taken together and by promotion from Category 3 of Class II
respectively be in the ratio of 2:5:2 and the cycle for such appointment shall
be as follows:
By recruitment by transfer 1-H.M. of High School
By promotion from Categories 1 and 2 1-P.G Assistant
of Class II and Class III
By promotion from Category 3 of Class II 1-Inducted
teacher
By recruitment by transfer 1-H.M.of High
School
By promotion from Categories 1 and 2 of 1-P.G. Assistant
Class II and Class III
By promotion from Category 3 of Class II 1-Inducted teacher
By promotion from Categories 1 and 2 of 1-P.G. Assistant
Class II and Class III
By promotion from Categories 1 and 2 of 1-P.G. Assistant
Class II and Class III
By promotion from Categories 1 and 2 of 1-P.G. Assistant
Class II and Class III
Provided that if no sufficient number of qualified and suitable candidates are
available for appointment by a particular method, such vacancies shall be filled
in by the other method prescribed”.
5.It is an admitted fact that since there are no availability of inducted
teachers, the appointment to the post of Headmasters in Higher Secondary Schools
are only from two sources, namely, the Headmasters in High Schools and Post
Graduate Assistant in Higher Secondary Schools.
6.The aforesaid Rule makes it very clear that while maintaining the
proportion, the cycle for such appointment shall also be followed.
7.As per the above rule, when the post of Headmaster of Higher Secondary
Schools run by the Corporation was sought to be filled up, Tmt.Janaki, High
School Headmaster, was promoted on 22.08.2006 as against the first point in the
cycle. The second point was to go to a P.G.Assistant and accordingly, one
Mrs.D.Vellaithai, P.G.Assistant, was promoted on 20.07.2007. The third post
should go to an inducted teacher. Since, no inducted teacher is available, it
was to go to the next cadre viz., the High School Headmaster. Accordingly,
Mr.Sundarraj, High School Headmaster, was promoted on 07.09.2007. The next point
was to go to a P.G.Assistant and accordingly, Mrs.Radha, P.G.Assistant, was
promoted on 05.06.2008. The next point in the cycle should go to an inducted
teacher. Since, no inducted teacher is available, it had to go to a
P.G.Assistant and accordingly, Tmt.Manjula, P.G.Assistant, was promoted on
05.06.2008. Thereafter, the next post had to go to a P.G.Assistant and
accordingly, Tmt.Kalyani, (not the respondent), P.G.Assistant was promoted on
05.06.2008 and again, the next post went to a P.G.Assistant and accordingly,
Tmt.Sivakami, P.G.Assistant, was promoted on 02.09.2008. This is how the cycle
was operated and 2:5:2 ratio also was maintained.
8.The aforesaid promotions as per the cycle are given in a tabular form,
as follows, for easy appreciation:-
By recruitment by transfer Tmt.Janaki, H.M. of High School
By promotion from Categories 1 and 2 Mrs.D.Vellaithai, P.G Assistant
of Class II and Class III
By promotion from Category 3 of Class II Inducted teacher (not available)
By recruitment by transfer Mr.Sundaraj, H.M.of High School
By promotion from Categories 1 and 2 Mrs.Radha,
of Class II and Class III P.G. Assistant
By promotion from Category 3 of Class II Inducted teacher (Not Available)
By promotion from Categories 1 and 2 Mrs.Manjula,
of Class II and Class III P.G. Assistant
By promotion from Categories 1 and 2 Mrs.Kalyani(not the respondent)
of Class II and Class III P.G. Assistant
By promotion from Categories 1 and 2 Mrs.Sivakami,
of Class II and Class III P.G. Assistant
9.As stated above, Tmt.Manjula, P.G.Assistant, was promoted on 04.06.2008.
But after joining the promoted post, she sought reversion and her request for
reversion was accepted and by an order dated 26.06.2008, , the second respondent
reverted her from the post of Headmistress of Higher Secondary School to the
post of P.G.Assistant. From the files, it is seen that she relinquished her
right for promotion to the post of Higher Secondary School Headmaster for
future, even while seeking reversion.
10.After the reversion of Tmt.Manjula, the appellant who was a Headmaster
in a High School was promoted on 02.09.2008 in the cycle meant for High School
Headmaster. The said promotion was challenged by the first respondent in
W.P(MD)No.8188 of 2008 on the ground that she was promoted against the vacancy
that was caused due to the reversion of Tmt.Manjula, a P.G.Assistant and that
therefore, the first respondent should have been promoted in the said vacancy.
11.The learned single Judge held that the ratio 2:5:2 would be maintained,
only if the vacancy that was caused due to the reversion of Tmt.Manjula,
P.G.Assistant, is filled by another P.G.Assistant. It was further held that the
second respondent proceeded on a wrong notion that once promotion was given as
per the cycle, a post that falls vacant, consequent on resignation has to be
filled up by the next cadre as per the cycle. According to the learned single
Judge, the vacancy was not due to resignation but due to reversion. Hence, the
learned Judge held that the vacancy had to be filled from the cadre of
P.G.Assistant.
12.The learned Senior Counsel for the appellant assails the said reasoning
of the learned single Judge on the ground that while the rule contemplates
maintaining the proportion of 2:5, the rule also provides that the cycle has to
be followed. The Senior Counsel contended that upon the promotion of
Tmt.Manjula, P.G.Assistant, as per the cycle, the slot meant for P.G.Assistant
got exhausted and the next vacancy has to be filled by following the cycle.
13.On the contrary, Mr.V.Selvaraj, learned counsel for the first
respondent, sought to sustain the order of the learned single Judge and argued
that since Tmt.Manjula became the P.G.Assistant on reversion, the post should be
filled up only by another P.G.Assistant and not by High School Headmaster. The
learned counsel further argued that in order to maintain the proportion of 2:5,
on the reversion of Tmt.Manjula from the post of Headmistress to P.G.Assistant,
another P.G.Assistant should be promoted as Headmaster of Higher Secondary
Schools.
14.The learned counsel for the first respondent while citing the following
decisions, fairly stated that the decisions are not directly on the point.
“(i) In A.K.Subraman and others Vs. Union of India and others reported in
1975 1 SCC 319,
(ii) In N.K.Chauhan and others Vs. State of Gujarat and others reported in
AIR 1977 SCC 251,
(iii) In P.G.Institute of Medical Education & Research etc., Vs.
K.L.Narasimhan and another reported in AIR 1997 SC 3687,
(iv) In Gonal Bhimappa Vs. State of Karnataka reported in 526 SLR 1987, in
Nyadar Singh Vs. Union of India and others reported in 1988 (4) SCC 170
(v) In R.K.Sabharwal and others Vs. State of Punjab and others reported in
1995 (2) SCC 745″.
We have also perused those decisions and those decisions are not helpful in
deciding the issue involved in this case.
15.We have carefully considered the rival submissions and we find it
difficult to sustain the order of the learned single Judge. When the rule
specifically prescribes the cycle that has to be followed, the same cannot be
simply ignored. Since the rule is very specific providing a cycle, every vacancy
has to be filled up according to the cycle and the cycle itself maintains the
proportion of 2:5. The fallacy of the argument of the learned counsel for the
first respondent is that it fails to give due weightage to the adherence to the
cycle as provided in the special rules. If Tmt.Manjula had relinquished her
promotion before she was actually promoted to the post of Headmistress, it could
have been a different matter. But she sought reversion (not relinquishment)
after she was promoted against the slot meant for P.G.Assistant and after she
joined the promoted post. Therefore, the next vacancy that was caused for
whatever reason, should go to the next slot viz., the Headmaster of a High
School, as per the cycle. The relevant factor is the availability of vacancy and
not how the vacancy was caused; otherwise the rule providing for following of
cycle would have no meaning.
16.Once Tmt. Manjula, P.G.Assistant, was promoted and she joined the post
of Headmistress, the slot meant for P.G.Assistant in the cycle got exhausted and
the next vacancy has to be filled, according to the cycle only. Otherwise, the
provision of cycle in the Rules has no meaning. As stated earlier, the relevant
factor is the creation of the vacancy and not the cause for its creation since
the cycle itself ensures the proportion of 2:5. If the contention of the learned
counsel for the first respondent is accepted, the second respondent has to see,
while filling every vacancy, whether the vacancy was caused due to the
death/retirement/resignation etc., of Headmaster or P.G.Assistant and that is
not the purport of the Rule that was extracted above.
17.For the above stated reasons, we are of the considered view that the
writ appeal deserves to be allowed and the order of the learned single Judge is
liable to be set aside. Accordingly, the writ appeal is allowed and there will
be no order as to costs.
sms
To
1.The Commissioner,
Madurai Corporation, Madurai.
2.The Chief Educational Officer,
Corporation Schools, Madurai.