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B.Thirunavukkarasu vs The District Collector And on 8 August, 2002

Madras High Court
B.Thirunavukkarasu vs The District Collector And on 8 August, 2002
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08/08/2002

CORAM

THE HONOURABLE MR.  JUSTICE K.P.SIVASUBRAMANIAM

WRIT PETITION No.9708 of 1995

B.Thirunavukkarasu                                     Petitioner.

-Vs-

1. The District Collector and
   Chattram Administrator-cum-
   President,
   Rajah's Higher Secondary
   School committee,
   Thanjavur

2. The Rajah's Higher Secondary School,
   by its Secretary to the School
   Committee Tahsildar,
   Thanjavur.

3. The District Educational Officer,
   Thanjavur

4. R.Paneerselvam

5. K.Selvaraj                                                   Respondents.

                Petition filed under Article 226 of the Constitution of  India
praying for the issue of a writ of certiorarified mandamus as stated therein.

For petitioner                 :  Mr.K.Chandru,
                                Senior Counsel, for
                                Mr.G.Jeremiah

For respondents 1 & 2  :  Mr.R.Muthukumaraswamy,
                        Senior Counsel, for
                        Mr.S.Kasirajan

For 3rd respondent              :  Miss.V.Velumani,
                                Addl.  Govt.  Pleader.

For 4th respondent              :  Mr.V.Venkataswamy


:ORDER

This writ petition has been filed by a Selection Grade P.G.
Assistant in the second respondent School. According to him, he possesses
M.A.,M.Ed.qualification and he was initially appointed on 1.12.1972 as a
B.T.Assistant. He was promoted as P.G.Assistant on 7.12.1984 and he continues
to hold the post of P.G.Assistant. The second respondent school is an aided
private institution governed by the provisions of the Tamil Nadu Recognised
Private Schools (Regulation) Act, 1973, (hereinafter called “the Act”). On
30.6.1994, the post of Headmaster of the School s fell vacant due to the
superannuation of the previous incumbent. He was fully qualified for the said
post. He applied for the said post. Though the post fell vacant on
30.6.1994, no process was initiated for filling up the vacancy. All of a
sudden a meeting of the School Committee was called for on 24.3.1995 to
consider the appointment of Headmaster. The School Committee which was duly
constituted met on 24.3.1995 and resolved to constitute a subCommittee to
interview the three candidates who had applied for the post of Head Master.
The School Committee had directed the Sub-committee to recommend the
appointment of Headmaster on the basis of merit and ability of the candidates.
The candidates were initially informed that an interview would be conducted on
7.4.1995 and subsequently it was cancelled and that they were called to appear
on 17.4.1995 for verification of the original certificates. On 17.4.1995 when
he appeard before the Sub-Committee and produced the certificates, no
interview was conducted nor any question was put to him. The Sub-Committee
consisted of only one person namely, P.A. to the Chief Educational Officer,
Thanjavur, who was not a member of the School Committee. Therefore, it was
not a properly constituted School Committee. On the basis of the
recommendations of the Sub-Committee , the second respondent had appointed the
fourth respondent on his own accord without even placing the recommendations
of the Sub-Committee before the entire School Committee. Therefore, the
entire action of the respondents in appointing the fourth respondent was
contrary to the provisions of the Act and Rules. Though the petitioner had
forwarded representations there was no proper response from the respondents.
The petitioner would further state that although Rule 15(4A) provides a remedy
by way of appeal, the same was not efficacious for the reasons that the
impugned order was passed in violation of the Rules and that the Appellate
Authority was subordinate in service to the first respondent.

2. In the counter of the first respondent, it is contended
that the fourth respondent was a directly appointed P.G.Assistant with effect
from 21.10.1990 with total service of 13 years and the fifth respondent was
also appointed as P.G.Assistant on 9.2.1983 with total service of 11 years.
The petitioner was promoted as P.G.Assistant only on 7.12.1984 with a total
service of nine years and as such the petitioner was the junior-most among the
three candidates and the fourth respondent,who was senior-most among the three
candidates, was selected. The constitution of the Sub-Committee was quite
legal consisting of two persons namely, P.A. to the District Collector,
P.G.Assistant representing the School Committee and third one P.A. to the
Chief Educational Officer, Thanjavur. Though the last one was not one of the
members of the School Committee, he was brought into Sub-Committee so as to
verify and clarify different Rules and proceedings of the Education
Department. An interview was conducted and questions were put to all the
candidates and certificates of each candidate were duly scrutinised. It was
not correct to state that the recommendation of the Sub-Committee was not
placed before the School Committee. Following the recommendations, the same
was submitted to the School Committee and orders were obtained by circulation.
The selection report was also circulated among the members of the School
Committee for their acceptance and the same was approved by the majority of
the members of the School Committee. Only on the approval by the School
Committee, orders appointing the fourth respondent were issued. Therefore,
the procedure of appointment was fully satisfied by the Rules and Regulations.

3. In the counter, reasons have also been given for choosing
the fourth respondent which are as follows:-

” (1) He has worked as Assistant Headmaster for nearly 3 years and
Headmaster (incharge) for nearly 10 months in an efficient manner.

(2) He has passed Account Test for Executive Officers which is
considered as additional qualification.

(3) He has served as Parent Teacher Association Treasurer.
(4) He has arranged for cultural programme during VIII World Tamil
Conference and got appreciation letter from the District Revenue Officer,
Chief Educational Officer and Commissioner, Thanjavur Municipality.

(5) He has taken part in Arivoli Iyakkam.

(6) Participated in World Aids awareness day.

(7) Worked as Chief Superintendent of Examination.

(8) Obtained satisfactory report in the Audit and in the Inspection
report by Chief Educational Officer.

(9) Merit and ability certificate from previous two school
secretaries, two Headmasters, Vice-Chancellor, M.P. and M.L.A.”

4. In the counter filed on behalf of the third respondent
also, the very same pleadings have been stated.

5. In the counter of the fourth respondent, selected
candidate, he has contended that he was the senior-most among the three
candidates whose claims were considered by the School Committee. He would
also contend that the constitution of the tee was justified and there was no
illegality. There was proper delegation by the School Committee in favour of
the sub-committee and the recommendation of the sub-Committee was duly
considered by the School Committee and there was no error in the procedure
thus adopted.

6. Mr.K.Chandru, learned Senior Counsel appearing for the
petitioner, raised the following points:-

(i) In terms of the provisions under the Act and Rules the appointment
can be made only by the School Committee and under Section 18 of the Act, it
is only the Committee which was endowed with the powers to carry out the
functions enlisted thereunder which includes the power to appoint teachers and
other employees.

(ii) Admittedly, one of the members of the Sub-Committee was a
stranger namely, Personal Assistant to the Chief Educational Officer,
Thanjavur. Even if a Sub Committee could be constituted, no stranger can be
inducted.

(iii) The procedure of obtaining an approval by circulating the
resolution is ultra vires of the provisions of the Act and in this context,
learned senior counsel relies on the judgment of E.Padmanabhan, J. in
RANGANATHAN, C. v. THE PRESIDENT/SECRETARY OF SCHOOL COMMITTEE, ETC. &
ANOTHER
(1997 Writ L.R., 489). He would further submit that the process
adopted by the respondents was totally illegal and a perusal of the counter
itself would disclose that there were certain other extraneous pressures in
choosing the fourth respondent on the recommendation of the local M.L.A. and
M.P. This had become possible only because of the adoption of unusual
procedure of constituting a SubCommittee and obtaining orders on circulation.

7. Mr.R.Muthukumaraswamy, learned Senior counsel appearing
for the official respondent as well as the School, would contend that there
was no illegality in the delegation of the process of selection to a properly
constituted sub-committee. The decision to entrust the process of selection
to the Sub-Committee was taken by the School Committee itself. Learned Senior
counsel would also submit that there was nothing wrong in a third person
having taken part in the selection process.

8. In this context, learned Senior counsel would refer to
Section 1 7 of the Act which is to the effect that the School Committee shall
meet and observe such rules of procedure in regard to the transaction of
business at its meeting as may be prescribed. Therefore, the delegation of
the function of interviewing the candidates to a SubCommittee was within the
powers of the School Committee. He would also draw a comparison to the usual
process of appointing Enquiry Officers whenever disciplinary proceedings are
initiated against the employees. On the strength of the said analogy, learned
Senior counsel would contend that the involvement of a third person or seeking
the assistance of a third person cannot vitiate the entire proceedings, so
long as the ultimate decision is taken by the School Committee.

9. As regards the orders obtained by circulating files,
learned Senior Counsel contends that the decision of E.Padmanabhan,J. as
aforesaid will not apply as the said case related to a disciplinary proceeding
and not selection and appointment of a Head Master. Therefore, the said
ruling will not apply to the facts of the present case.

10.I have also heard learned counsel for the fourth respondent
who would submit that the fourth respondent was the seniormost person and as
such his selection was perfectly justified. It was open to the School
Committee to assess the comparative merits and the decision of the competent
authority to device the process of selection cannot be questioned before the
Court.

11. I have considered the submissions of both sides. As far
as the constitution of the Sub-Committee is concerned, I am inclined to accept
the contention raised on behalf of the respondents considering that under
Section 17 of the Act, the School Committee was free to evolve its own
procedure. For the same reason, I am also unable to conclude that there was
any illegality in seeking the assistance of an outsider as one of the members
of the Sub-Committee. It is stated that his assistance was utilised so as to
be fully conversant with the Rules and Regulations. As long as the ultimate
decision is properly taken by the School Committee, the mere fact that
functions of the selection process was left to a Sub-Committee cannot result
in vitiating the entire proceedings. The function of the Sub-Committee, was
only to evaluate and place their recommendation for consideration by the
School Committee.

12. However, I am unable to sustain the action of the
respondents in having obtained orders on circulation. A perusal of Section 18
of the Act as well as Rule 14 of the Tamil Nadu Private Schools ( Regulations)
Rules, 1974 reveals that they do not contemplate decisions of the School
Committee being taken by circulation of files. While Section 18 states that
the School Committee shall be the responsible body for the educational agency
and is authorised to carry out the functions enlisted therein, Rule 14 of the
Rules deals with the Meeting of the School Committee. In terms of the said
Rule, meetings shall be conducted after giving at least seven days clear
notice in writing and at least 50 per cent of the total members of the
committee are present. No other process of the School Committee for taking a
decision and that too by circulation of files is contemplated under the Rules.
This issue has been dealt with by E.Padmanabhan,J. in the aforesaid judgment
and held that there was no provision which would enable the institution to get
a resolution passed by the School Committee by circulation. The School
Committee being the creature of the statute has to act according to the Rules
and it cannot act in a different manner.

13. Apart from the aforesaid reason, it has to be borne in
mind that the very purpose of convening of the meeting of the School Committee
is to have a proper discussion on the pros and cons of the issues to be
deliberated by the School Committee. In contrast, circulation of files will
not justify the required democratic manner of functioning of the Committee, in
the absence of proper discussion among the members and communication of the
objections or reasons to support or to oppose a resolution. In the present
case, it is also seen that certain officials have been casting a shadow on the
independence of the School Committee. Apart from the fact that the decision
was taken by a Sub-Committee consisting of a stranger, recommendations of a
Member of Parliament and a Member of Legislative Assembly also appears to have
weighed with the recommendations of the Sub-Committee. This fact is admitted
in the counter itself and reliance is placed on the recommendations of the
Vice-Chancellor, Member of Parliament, Member of Legislative Assembly in
favour of the fourth respondent. These features are totally unwarranted and
would vitiate the proceedings. These features assume importance, especially
in the context of obtaining views of the members of the School Committee by
circulation of files. The School Committee has to independently apply its
mind in a collective manner and without being constrained by any restriction,
should be able to take the decision after due discussions, which is totally
absent in the present case. Though the constitution of the SubCommittee by
itself may not be illegal, the manner in which the school Committee had dealt
with the matter, reveals that the School Committee appears to have abandoned
its powers very probably due to the presence of officials in the Sub-Committee
and the recommendations in favour of the fourth respondent by extraneous
sources.

14. Therefore, the petitioner is entitled to succeed on the
ground that the ultimate decision taken by the School Committee by not
following the procedure contemplated under Rule 14, is violative of the
provisions of the Act and Rules and hence, cannot be sustained.

15. In the result, the petitioner is entitled to succeed.
However, this Court cannot direct the appointment of the petitioner
automatically on setting aside the impugned selection of the fourth
respondent. There has to be a proper assessment of merits of all the
candidates by a properly constituted School Committee in terms of the
provisions of the Act and Rules. Therefore, while setting aside the order of
appointment of the fourth respondent, the respondents are directed to
forthwith convene the School Committee meeting and to issue fresh orders after
calling for a meeting of the School Committee. The School Committee is
directed to convene a meeting for the said purpose and pass appropriate orders
within a period of 30 days from the date of receipt of copy of this order.
The writ petition is ordered accordingly. No costs.

Index:  Yes.                                                    08.08.2002
Internet:  Yes.
sai/-

To

1.  The District Collector and
Chattram Administrator-cum-
President,
Rajah's Higher Secondary
School committee,
Thanjavur

2.  The Rajah's Higher Secondary School,
by its Secretary to the School
Committee Tahsildar,
Thanjavur.

3.  The District Educational Officer,
Thanjavur






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