IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23-4-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.Nos.30019 of 2005 & 1786 of 2007 W.P.No.30019 of 2005 P.Senguttuvan ... Petitioner Vs. 1. Director of School Education, Chennai 600 006. 2. Chief Educational Officer, Theni 3. District Educational Officer, Uttamapalayam, Theni District. 4. The Secretary, Sri Krishna Aiyar Higher Secondary School, Chinnamanur 625 515. Theni District. 5. Lakshmi Narayanan ... Respondents
This Writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records pertaining to the order passed by the first respondent in his proceedings O.Mu.No.109724/W.29/2004 dated 28.2.2005 and the consequential order passed by the third respondent in his proceedings Na.Ka.No.2592/A2/2004 dated 9.8.2005 and quash the same and direct the 4th respondent to fill up the post of PG Assistant (Economics) with a person possessing both basic and master’s degree in the same subject by a properly constituted School Committee.
W.P.No.1786 of 2007 N. Lakshmi Narayanan ... Petitioner Vs. 1. The Director of School Education, D.P.I. Campus, Nungambakkam, Chennai 600 006. 2. The Chief Educational Officer, Theni 3. The District Educational Officer, Uttamapalayam, Theni District. 4. The Secretary, Sri Krishna Aiyar Higher Secondary School, Chinnamanur 625 515. Theni District. 5. P.Senguttuvan ... Respondents (R.5 impleaded as per the order of the Court dated 31.3.2010 in M.P.No.1 of 2008)
This Writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records pertaining to the impugned order passed by the third respondent in his proceedings Roc.No.8769/A2/06, dated 5.10.2006 and quash the same and direct the respondents to pay the salary to the petitioner in the cadre of PG Assistant (Economics) with all other consequential benefits accrued thereon.
For Petitioner in WP.30019/2005 & : Mr.C.Selvaraj,
5th Respondent in WP.1786/2007 Senior Counsel
for Mr.S.Mani
For Petitioner in WP.1786/2007 & : Mr.R.Sureshkumar
For Respondents 1 to 3 in both : Mrs.E.Ranganayagi
writ petitions Government Advocate
For 4th Respondent in both writ : Mr.L.Chandrakumar
petitions
For 5th Respondent in WP.30019/2005 : Mr.S.N.Ravichandran
COMMON ORDER
Both these writ petitions relate to the promotion of one N.Lakshminarayanan as PG Assistant (Economics) in Sri Krishna Aiyar Higher Secondary School, Chinnamanur, Theni District/4th respondent in both the writ petitions.
2. W.P.No.30019 of 2005 is filed by a rival candidate by name P.Senguttuvan, challenging the order of approval granted for the appointment of N.Lakshminarayanan/petitioner in W.P.No.1786 of 2007, and for a direction to the management to fill up the post of P.G.Assistant (Economics) with a person possessing both basic and master’s degree in the same subject, by a properly constituted School Committee.
3. W.P.No.1786 of 2007 is filed by N.Lakshminarayanan to quash the order of the District Educational Officer, Uthamapalayam, dated 5.10.2006 wherein salary was denied to him due to the pendency of W.P.No.30019 of 2005 and for a direction to pay salary in the cadre of P.G.Assistant (Economics) with all consequential benefits.
4. Since the issue involved in both the writ petitions are one and the same, both the writ petitions are disposed of by this common order.
5. N.Lakshminarayanan/Petitioner in W.P.No.1786 of 2007 has passed B.A., B.Ed. and M.Ed degrees and was appointed as B.T.Assistant in the 4th respondent aided private management school on 1.8.1992 in a vacancy arose due to retirement of one A.C.Alagumalai on 31.7.1992. The said appointment was approved by the District Educational Officer, Uthamapalayam/third respondent by order dated 10.8.1993 and he was paid salary from the said date as he was appointed in a sanctioned and approved post. While continuing as B.T.Assistant, the said N.Lakshminarayanan passed M.A.degree in Economics in the year 2002 and thus he became eligible for promotion to the post of P.G.Assistant (Economics).
6. In the 4th respondent aided private management school, a vacancy arose on 10.1.2002 in the post of P.G.Assistant (Economics) due to death of one R.Vijayan, P.G.Assistant (Economics) on 9.1.2002. N.Lakshminarayanan, having the required qualification for the said post, submitted an application on 17.3.2003 followed with reminder dated 11.2.2004, claiming that his candidature is bound to be considered by the 4th respondent management under Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 and Annexure-V to the said rule while filling up the vacancy by promotion.
7. The 4th respondent after obtaining permission to fill up the said post, issued promotion order to the said N.Lakshminarayanan as P.G.Assistant (Economics) by order dated 23.3.2004 and submitted the proposals for approval to the respondents 2 and 3 for the purpose of sanction of salary. The second respondent sought certain clarifications from the first respondent regarding approval of the promotion of N.Lakshminarayanan as P.G.Assistant (Economics). The first respondent issued clarification on 28.2.2005 and directed to approve the promotion of N.Lakshminarayanan as no other approved teacher eligible for promotion was available as per Rule 15(4) of the Rules in the 4th respondent School. The third respondent on verification of the proposals submitted by the management, approved the promotion given to N.Lakshminarayanan by order dated 9.8.2005. However, he was not paid salary in the post of P.G.Assistant with effect from 23.3.2005 on the ground that on P.Senguttuvan/petitioner in W.P.No.30019 of 2005 has challenged the said order and the writ petition is admitted, even though the same is pending without any interim order. Hence, N.Lakshminarayanan filed W.P.No.1786 of 2007 claiming salary applicable to the post of P.G.Assistants.
8. The case of the petitioner in W.P.No.30019 of 2005/P.Senguttuvan is that he has passed B.A.(Economics), M.A.(Economics) and B.Ed degrees and he was appointed as P.G.Assistant in a leave vacancy in the 4th respondent school due to the medical leave taken by one Vijayan, who passed away on 9.1.2002. In the death vacancy of the said Vijayan, the management sought permission to fill up the post, which was granted by the department on 20.3.2002 and in the said vacancy N.Lakshminarayanan was promoted. As the claim of P.Senguttuvan having not been considered, who was serving in the leave vacancy, he submitted a representation claiming that he is possessing both U.G. and P.G. degrees in the subject of Economics and without considering his claim, promotion was given by the management to the said N.Lakshminarayanan. According to P.Senguttuvan, the said N.Lakshminarayanan is not qualified as he is not possessing U.G. and P.G. degrees in same subject (Economics), which is a requirement under G.O.Ms.No.361 School Education Department, dated 31.12.1999. It is also contended that in the 4th respondent school, the School Committee was not properly constituted and therefore the promotion given to the said N.Lakshminarayanan is illegal.
9. The third respondent District Educational Officer has filed counter affidavit stating that the management of the School strictly followed Rule 15(4) of the Tamil Nadu Recognised Private School (Regulation) Rules, 1974, and the said N.Lakshminarayanan being the only qualified approved teacher available in the School, who was working in the lower cadre (B.T.Assistant), he was promoted and the said fact was considered by the first respondent, who gave direction to approve the appointment of the said N.Lakshminarayanan. The petitioner in W.P.No.30019 of 2005/P.Senguttuvan, even tough claims that he was appointed in a leave vacancy by the management, his appointment in the leave vacancy was not approved and therefore he cannot claim that he should be considered for the said post in the permanent vacancy. The rule states that in a regular vacancy, promotion shall be made on the basis of merit and ability from the lower cadre teachers, who are qualified.
10. The second respondent/Chief Educational Officer, Theni, in his counter affidavit submitted that the said N.Lakshminarayanan is qualified in terms of G.O.Ms.No.266 Education Department dated 18.10.2000 and the School Committee acted properly and promoted him as P.G.Assistant (Economics) from the category of B.T.Assistant. According to the second respondent, different subjects in U.G. and P.G. degrees can be considered for promotion in the ratio of 1:3 and the promotion of N.Lakshminarayanan is in compliance with Rule 15(4)(2)(i) of the T.N.Recognised Private Schools (Regulation) Rules, 1974. It is further stated that the School Committee was also properly constituted which was granted approval for the period from 26.8.2002 to 28.8.2005 and therefore there is no merit in the writ petition in W.P.No.30019 of 2005 filed by P.Senguttuvan.
11. Heard Mr.C.Selvaraj, learned Senior Counsel and Mr.R.Sureshkumar, Mr.S.N.Ravichandran, Mr.L.Chandrakukmar and Mrs.E.Ranganayagi, learned Government Advocate appearing for the respective parties.
12. The issues for consideration in these writ petitions are,
(1) Whether the management is entitled to appoint the said N.Lakshminarayanan in the post of P.G.Assistant (Economics), who is having U.G.degree in History and P.G. degree in Economics ?
(2) Whether the School Committee has followed Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 ?
13. ISSUE No.(1): The qualification prescribed for the post of P.G. Assistant insofar as Recognised Private Aided Schools are stated in Annexure-V of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. It is clearly stated in the said annexure that the person to be appointed as P.G.Assistant must possess P.G.degree in the relevant subject. As far as G.O.Ms.No.361, School Education Department dated 31.12.1999 is concerned, the same is applicable to P.G.Assistants in Government Schools and not in respect of P.G.Assistants appointed in Private Aided Schools, as admittedly the rule prescribing qualification in Annexure-V is not amended till date.
14. Similar issue was considered by this Court in the decision reported in (2009) 1 CTC 463 (N.K.Geetha v. Government of Tamil Nadu). In the said decision this Court set aside the order of the department declining approval sought for by a P.G.Assistant (Malayalam), who was given promotion even though he was not having the same subject in U.G.degree. In paragraphs 4 to 10 of the said decision it is held thus,
“4. In W.P.No.8360 of 2006, the challenge is to the order of the second respondent dated 13.2.2006, in and by which, the second respondent declined to grant approval of the petitioner’s appointment as a P.G.Assistant for Malayalam language in the 4th respondent School. The petitioner possesses a degree in History with Malayalam as the second language and Post graduate degree in Malayalam itself. She also possesses a B.Ed Certificate. She was issued with an order of appointment dated 1.12.2001 by the fourth respondent.
5. By the impugned proceedings, the second respondent rejected the application of the fourth respondent for approval of the petitioner’s appointment, since there were certain intervening proceedings litigation. In the impugned order, the second respondent, after referring to G.O.No.361 dated 31.12.1999 has held that the persons possessing both Under Graduate degree as well as Post Graduate degree in the same language can alone be appointed in the post of language teacher and since the petitioner’s Under Graduate degree is in a different subject, viz., History, her appointment could not be approved. The second respondent curiously referred to the second proviso to the relevant rule, while rejecting the approval application relating to the appointment of the petitioner.
6. It would be worthwhile to refer to the relevant rule, which has been stated in Annexure V(iv)(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The said relevant provision is to the following effect:
“Post Graduate Assistants in Language (Other than Tamil)
(i) A Master’s Degree in the language in respect of which appointment is made or its equivalent;
and
(ii) B.T. Or B.Ed., Degree or its equivalent.
Provided that for appointment to the post by recruitment by transfer from the post of Pandit and Munshie in the High Schools, the Pandit Training or Secondary Grade Training shall be considered as equivalent qualification to the B.T. Or B.Ed., degree.
Provided further that other things being equal, preference shall be given to those who have studied the same subject in degree and Master’s degree levels.”
7. A plain reading of the said regulation discloses that in order to satisfy the qualification for the post of Post Graduate Assistants in language, such as Malayalam in this case, what is required is a Masters degree in the language in respect of which the appointment is to be made or its equivalent, along with B.T. Or B.Ed. Degree or its equivalent. The question of applying second proviso nor giving any preference will arise if at all there is more than one candidate to aspire for one single post of Post Graduate Assistant in language. Therefore, the application of the second proviso does not arise to the case on hand where there is no competitor other than the petitioner who came to be appointed by the fourth respondent School by the order dated 1.12.2001.
8. Under such circumstances, a reference to the second proviso in the impugned order by the second respondent is totally uncalled for. It only reflects the total misreading of the relevant rule by the second respondent.
9. As far as the reference to G.O.No.361 dated 31.12.1999 is concerned, it is needless to state that when a statutory rule contains a specific provision as regards qualification to be satisfied by way of a Government Order, such a statutory rule cannot be altered. In any event, the question of considering a person holding the qualification of Under Graduate as well as Post Graduate in the same language, can, at the best, be considered if at all more than one person compete for the post, in which event, the second proviso to the relevant regulation itself will take care of such a situation, which provides for a preference to be given in the event of all other things remaining equal. Therefore, reference to G.O.No.361 dated 31.12.1999, in the impugned order is also uncalled for.
10. The impugned order, looked at from any angle, cannot be sustained. While setting aside the order impugned in the writ petition, the second respondent is directed to approve the appointment of the petitioner from the date of her original appointment viz., 1.12.2001 and pass appropriate orders expeditiously, preferably within four weeks from the date of receipt of a copy of this order. W.P.No.8660 of 2006 is allowed. No costs.”
15. It is to be noted that Annexure-V is issued in terms of Rule 15 read with Section 19. In fact, as per Section 20 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, there is a prohibition to follow the qualification prescribed in other rules. Section 20(1) reads as follows:
“20(1) No person who does not possess the qualifications prescribed under section 19 shall on or after the date of the commencement of this Act, be appointed as teacher or employee in any private school.”
Thus, it is evident that the said N.Lakshminarayanan is fully qualified for promotion to the post of P.G.Assistant (Economics) as he is possessing the qualifications prescribed in Annexure-V.
16. The contention of the rival candidate viz.P.Senguttuvan, who is the petitioner in W.P.No.30019 of 2005 that the School Committee is not properly constituted is not sustainable in view of the specific statement contained in the counter affidavit filed by the Chief Educational Officer/second respondent that approval of the School Committee constituted by the management/4th respondent from 26.8.2002 to 25.8.2005 has been granted. Thus, the School Committee which selected the said N.Lakshminarayanan is duly constituted and competent to grant promotion.
17. ISSUE No.(2): The said P.Senguttuvan claims that he was appointed in the leave vacancy. However the said appointment was not approved by the department, thus he was serving in unapproved post and therefore his claim for regular appointment is unsustainable in terms of Rule 15(3) and (4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Rule 15(3) and (4) reads as follows:
“15(3) In a regular vacancy a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, i.e leave vacancy, deputation for training or suspension of the teacher’s certificate, a teacher or other person may be appointed for a specified period. In such cases, the agreement to be executed shall be in Form VII-B.
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.
(4-A) Any person employed in the institution specified in column (1) of the Table below, aggrieved by an order issued under sub-rule (4) may prefer an appeal to the authority specified in the corresponding entry in column (2) thereof:-
The Table
Institution
(1)
Authority
(2)
Pre-primary, Primary or Middle Schools.
Chief Educational Officer
High School or Higher Secondary School (in respect of a person other than Headmaster) Post-Graduate Assistant (both Academic and Languages) or Physical Director.
Joint Director of School Education (Secondary Education)
Teacher Training Institutes
Deputy Director (Teacher Education)
Higher-Secondary School (in respect of Headmaster Post Graduate Assistant (both Academic and Language) or Physical Director
Joint Director of School Education (Higher Secondary)
18. The private aided Schools are bound to follow the said statutory provisions while filling up the vacancies, is the settled issue. In the decision reported in (2007) 6 SCC 382 (S.Sethuraman v. R.Venkataraman) the Supreme Court held that it is the prerogative of the School Committee to select a competent person while filling up the vacancy in an aided school.
19. The petitioner in W.P.No.30019 of 2005/P.Senguttuvan was not a person serving in the lower cadre to consider him for promotion by the School Committee. At best he can claim his right only for appointment in a regular vacancy i.e., by direct recruitment. As per the rule, direct recruitment is permissible only if qualified persons are not available to give promotion. Hence there is no violation of rule while filling up the post of P.G.Assistant (Economics) by the 4th respondent management. Further, no appeal challenging the promotion was made before the competent authority as per Rule 15(4-A) of the Rules. The School management promoted the said N.Lakshminarayanan and the promotion order was made on 23.3.2004. The said order has not been challenged either before the appellate authority or before this Court and only the consequential order granting approval of the said promotion is challenged. It is well settled in law that writ petition challenging the consequential order alone is not maintainable. In the decision reported in (2010) 1 SCC 756 : (2010) 2 MLJ 713 (SC) (Edukanti Kistamma v. S.Venkatareddy) in paragraph 22 (in SCC) it is held thus,
“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.Chithranja Menon and Others v. A.Balakrishnan and Others, AIR 1977 SC 1720 : (1977) 3 SCC 255; H.V.Pardasani v. Union of India and Others, Air 1985 SC 781 : (1985) 2 SCC 468; and Government of Maharashtra and Others v. Deokars Distillery, AIR 2003 SC 1216 : (2003)5 SCC 669.”
20. In view of the above findings, I hold, there are no merits in the contentions raised by P.Senguttuvan and the writ petition filed in W.P.No.30019 of 2005 is dismissed. Consequently, the writ petition filed by N.Lakshminarayanan in W.P.No.1786 of 2007 is allowed. The third respondent is directed to pay salary to the N.Lakshminarayanan/petitioner in W.P.No.1786 of 2007 from 9.8.2005 in the cadre of P.G.Assistant, after adjusting the salary already paid to him in the cadre of B.T.Assistant, within four weeks from the date of receipt of copy of this order. No costs.
Index : Yes/No.
Internet : Yes/No. 23-4-2010 vr To 1. The Director of School Education, D.P.I. Campus, Nungambakkam, Chennai 600 006. 2. The Chief Educational Officer, Theni 3. The District Educational Officer, Uttamapalayam, Theni District. N. PAUL VASANTHAKUMAR, J. Vr Pre-Delivery Common Order in W.P.Nos.30019/2005 & 1786/2007 23-4-2010