IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.2.2010 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition Nos.3329 and 18210 of 2003 W.P.No.3329 of 2003:- G.R.M.Girls Higher Secondary School, represented by its Secretary & Correspondent, Thiruvarur. ... Petitioner vs. 1.The Secretary to Government, School Education Department, Fort St. George, Chennai-600 009. 2.The Joint Director of School Education (Higher Secondary), Chennai- 600 006. 3.Tmt.T.Vijayasekari, P.G. Assistant, G.R.M. Girls Higher Secondary School Thiruvarur. ... Respondents W.P.No.18210 of 2003:- Tmt.R.Rathinakumari, Headmistress, G.R.M. Girls Higher Secondary School, Thiruvarur. ... Petitioner vs. 1.The Secretary to Government, School Education Department, Fort St. George, Chennai-600 009. 2.The Joint Director of School Education (Higher Secondary), College Road, Chennai- 600 006. 3.The Secretary and Correspondent, G.R.M. Girls Higher Secondary School, Thiruvarur. 4.Tmt.T.Vijayasekari, P.G. Assistant, G.R.M. Girls Higher Secondary School Thiruvarur. ... Respondents Writ Petition No.3329 of 2003 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for records of the first respondent in G.O.Ms.No.27 School Education (VE) Department, dated 28.1.2003 and quash the order passed therein and direct the respondents 1 and 2 to grant approval for the selection and appointment of Tmt.Rathinakumari as Headmistress of the petitioner school with effect from 30.4.2001 with all consequential monetary and other service benefits. Writ Petition No.18210 of 2003 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for records of the first respondent in G.O.Ms.No.27 School Education (VE) Department, dated 28.1.2003 and quash the order passed therein and direct the respondents 1 and 2 to grant approval for the selection and appointment of the petitioner as Headmistress with effect from 30.4.2001 with all consequential monetary and other service benefits. For Petitioner in W.P.No.3329 of 2003 and 3rd respondent in W.P.No.18210 of 2003 : Mr.R.Thiyagarajan, Senior Counsel for Mr.M.Muthappan For Petitioner in W.P.No.18210 of 2003 : Mr.L.Chandrakumar For Respondents 1 & 2 in both W.Ps. : Mr.A.Suresh, Government Advocate For 3rd respondent in W.P.No.3329 of 2003 and 4th respondent in W.P.No.18210 of 2003 : Mr.C.Selvaraju, Senior Counsel for Mr.S.Mani -----
COMMON ORDER
Writ Petition No.3329 of 2003 is filed by the school Management to issue a Writ of Certiorarified Mandamus, calling for records of the first respondent in G.O.Ms.No.27 School Education (VE) Department, dated 28.1.2003 and quash the order passed therein and direct the respondents 1 and 2 to grant approval for the selection and appointment of Tmt.Rathinakumari as Headmistress of the petitioner school with effect from 30.4.2001 with all consequential monetary and other service benefits.
2. Writ Petition No.18210 of 2003 is filed by the selected Headmistress to issue a Writ of Certiorarified Mandamus, calling for records of the first respondent in G.O.Ms.No.27 School Education (VE) Department, dated 28.1.2003 and quash the order passed therein and direct the respondents 1 and 2 to grant approval for the selection and appointment of the petitioner as Headmistress with effect from 30.4.2001 with all consequential monetary and other service benefits.
3. Since the prayer in both the writ petitions are one and the same, both the writ petitions are taken up together and disposed off by this common order.
4. For the sake of convenience, Tmt.T.Vijayasekari, the third respondent in W.P.No.3329 of 2003 and the fourth respondent in W.P.No.18210 of 2003 is referred to as “the third respondent Tmt.T.Vijayasekari”. Tmt.R.Rathinakumari, the petitioner in W.P.No.18210 of 2003 is referred to as “the petitioner Tmt.R.Rathinakumari”. The G.R.M.Girls Higher Secondary School, the petitioner in W.P.No.3329 of 2003 and the 3rd respondent in W.P.No.18210 of 2003 is referred to as “the petitioner School”.
5. The brief facts for disposal of both the writ petitions are as follows:- The petitioner School is a recognised private school within a meaning of Section 2(7) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The regular incumbents in the post of Headmistress in the school, demitted office on 30.4.2001 on voluntary retirement. To fill up the said vacancy, the School Committee invited applications from eligible candidates. 3 P.G. Teachers including the third respondent Tmt.T.Vijayasekari, submitted their applications. Since the appointment to the post of Headmistress is a promotion by selection in terms of Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, the School Committee called for an interview from eligible candidates. In the said interview, written test followed by oral interview was held on 29.4.2001. In the above test, the third respondent Tmt.T.Vijayasekari, secured 223.5 marks; the petitioner Tmt.R.Rathinakumari, secured 352 marks and one Tmt.Mangalam secured 151 marks. Based on the comparative merit, the petitioner Tmt.R.Rathinakumari was selected to be appointed to the post of Headmistress. An appointment order dated 30.4.2001 was issued and she took charge on 1.5.2001. The third respondent Tmt.T.Vijayasekari, filed an appeal to the Joint Director, the second respondent in both the writ petitions. The second respondent Joint Director passed an order dated 14.5.2002 accepting the appeal of the third respondent Tmt.T.Vijayasekari and rejected the appointment of the petitioner Tmt.R.Rathinakumari. The petitioner school filed revision petition to the first respondent under Section 45 of the Act. The first respondent by order dated 28.1.2003 rejected the revision filed by the petitioner school. The order dated 28.1.2003 reads as follows:-
“3. jpUthU:h; $p/Mh;/vk;/bgz;fs; nky;epiyg;gs;sp eph;thfj;jhy; jhf;fy; bra;ag;gl;l kW Ma;t[ kDtpy; eilKiwapy; cs;s tpjpfSf;Fk; epahaj;jpw;Fk; Vw;g[ila fhuz’;fs; vJkpy;iy/ KJfiy Mrphpah; gzp K:g;g[ epiyapy; Kjpatuhf cs;sstUk; nkw;fhQqk; gs;spapy; cjtp jiyik Mrphpiaahft[k; cs;s jpUkjp o/tp$anrfhp kPJ ve;j xU xG’;F Kiw eltof;ifa[k; epYitapy; ,y;yhj epiyapYk;. md;dhUf;F ve;j xU jz;lida[k; mspf;fg;gl;ljhf jfty; VJk; ,y;yhj epiyapYk;. mtiutpl gzpK:g;g[ epiyapy; (seniority) ,isatuhd jpUkjp Mh;/,uj;jpdFkhhp mth;fis gs;sp eph;thfk; jiyikahrphpiaahf epakpj;jJ rhpay;y vd;gjhy;. gs;spf; fy;tp ,iz ,af;Feh; (nkepf) mth;fspd; bray;Kiwfs; K:/K/vz; 62297-lgps;a[8/2001 ehs; 14/5/2001I cWjp bra;Jk; ghh;it 1?y; gof;fg;gl;l gs;sp jhshshpd; 29/5/2002 ehspl;l kW Ma;t[ kDtpid (revision petition) epuhfhpf;fyhk; vd;Wk; muR KobtLj;Js;sJ vd;Wk;. mk;Kotpd; kPJ jkpH;ehL m’;fPfhpf;fg;gl;l jdpahh; gs;spfs; Kiwg;gLj;Jk; rl;lk; gphpt[ 45(2)d;go nkny K:d;wpy; gof;fg;gl;l muR fojj;jpy; tpsf;fk; nfl;fg;gl;lJ/ kW Ma;t[ kDjhuh; nkny ehd;fpy; gof;fg;gl;l fojj;jpy; tpsf;fk; mspj;Js;shh;/ ,t;tpsf;f’;fs; Vw;fdnt kW Ma;t[ kDtpy; Twg;gl;L murhy; Ma;t[ bra;ag;gl;litahfnt cs;sd/ jpUkjp Mh;/,uj;jpdFkhhp vd;ghiu nky;epiyg;gs;sp jiyik Mrphpauhf epakpg;gjw;F tpjpfspd;go Vw;Wf;bfhs;sf; Toa g[jpa fuuz’;fs; VJk; Fwpg;gplg;gltpy;iy/ nkYk; nkw;fhQqk; fojj;jpy; gs;spr; brayh; mth;fs; neh;Kf nfl;g[iu mspf;FkhW nfl;Lf; bfhz;lhh;/ nkny gof;fg;gl;l 5?y; cs;s muR fojj;jpy; gs;spf; fy;tpj;Jiw brayh; Kd;. gs;sp brayhsUf;F neh;Kf nfl;g[iu mspf;fg;gl;lJ/ tHf;Fiu”h; tp/uhkRg;gpukzpad; kw;Wk; jpUthU:h; $p/Mh;/vk;/bgz;fs; nky;epiyg;gs;sp brayhsh; kw;Wk; jhshsh; 7/1/2003 md;W neh;Kf nfl;g[iuf;F M$uhdhh;fs;/ mg;bghGJ hpl; kD vz; 21235-94 kw;Wk; hpl; kD vz; 10648-94?d; kPjhd brd;id cah;ePjpkd;w Mizapd; efy; $p/Mh;/vk;/bgz;fs; nky;epiyg; gs;sp brayhsuhy; jug;gl;L mjpy; jkpH;ehL m’;fPfhpf;fg;gl;l jdpahh; gs;spfs; Kiwg;gLj;Jk; tpjpfs; 1974?y; tpjp 15 cl;gphpt[ 4(i)d;go jFjp kw;Wk; jpwikapd; mog;gilapy; gs;spf;FG vGj;Jj; njh;t[ mog;gilapy; jiyik Mrphpah; epakdk; jug;gl;Ls;sJ vd neh;Kf nfl;g[iuapy; bjhptpf;fg;gl;lJ/ nkw;fhQqk; tpjpapy; gjtp cah;t[ jFjp kw;Wk; jpwikapd; mog;gilapy; mspf;f ntz;Lk; vdt[k;. jpwik kw;Wk; jFjp xnu khjphpahf ,Ue;jhy; gzpK:g;g[ epiy ghprPypf;fyhk; vd cs;sJ/ nkw;fhQqk; gs;spapy; vGj;Jj; njh;t[ K:yk; Mrphpah;fspd; jpwd; kw;Wk; jFjp kjpg;gplg;gl;Ls;sJ/ nky;epiyg; gs;sp jiyik Mrphpah;. gjtp cah;t[ K:yk; epakdk; bra;a[k; bghGJ Mrphpahpd; fw;gpf;Fk; mDgtKk; mth; nghjpf;Fk; ghlj;jpy; mwpt[ jpwikia itj;J jFjp kw;Wk; jpwik kjpg;gpl ntz;Lk;/ Mjyhy; vGj;J njh;t[ K:yk; jFjp kw;Wk; jpwikia eph;zak; bra;J. gzpK:g;gpy; ,isatuhd jpUkjp Mh;/,uj;jpdFkhhp vd;ghiu gs;sp eph;thfk; jiyik Mrphpiaahf epakdk; bra;jJ rhpay;y/ ,jw;F chpa tpjpfspy; ,lkpy;iy/
4/ ,e;epiyapy; jpUthU:h; $p/Mh;/vk;/bgz;fs; nky;epiyg; gs;sp brayhsh; kw;Wk; jhshsh; mth;fspd; ghh;it 1?y; gof;fg;gl;l kW Ma;t[ kD kw;Wk; md;dhuJ bjhlh; tpsf;f’;fs; kw;Wk; ,g;bghUs; bjhlh;ghf gs;spf; fy;tp ,af;FehplkpUe;J bgwg;gl;l Mtz’;fs; kw;Wk; bjhlh;g[ila tptu’;fisa[k; ed;F ghprPypj;J nkny gj;jp 3?y; bjhptpf;fg;gl;Ls;s fhuz’;fspd; mog;gilapy; ghh;it xd;wpy; gof;fg;gl;l $p/Mh;/v;k;/bgz;fs; nky;epiyg; gs;sp brayhsh;-jhshshpd; kW Ma;t[ kDtpid epuhfhpj;J. gs;spf; fy;tp ,iz ,af;Feh; (nkepf) mth;fspd; bray; Kiwfs; K:/K/vz; 62297-lgps;a[8-2000 ehs; 14/5/2002?I cWjp bra;Jk; muR MizapLfpwJ/
The revision petition filed by the petitioner school was rejected and the order of the Joint Director of School Education was confirmed.
6. Aggrieved thereby, the petitioner school filed W.P.No.3329 of 2003 and the petitioner Tmt.R.Rathinakumari filed W.P.No.18210 of 2003 for the above stated reliefs challenging the order of the Government and for consequential relief.
7. Rule 15(4)(i) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, which is relevant for adjudication of the present issue, reads as follows:-
(4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.”
8. The learned Senior Counsel Mr.C.Selvaraju appearing for the third respondent Tmt.T.Vijayasekari, who has the benefit of the order of the Joint Director of School Education and the Government, made the following submissions:-
(i) The third respondent Tmt.T.Vijayasekari, is a senior in service to that of the petitioner Tmt.R.Rathinakumari, who has been chosen to the post of Headmistress. Therefore, the seniority should be given due weight-age even though the rule provides for merit and ability.
(ii) The School Committee called for an interview and the Selection Committee without any prior intimation conducted a written test. The third respondent Tmt.T.Vijayasekari, was not informed that in the course of interview she will be subjected to written test. Therefore, the procedure adopted by the Selection Committee is arbitrary and bad. He relied upon the following Apex Court’s decisions:-
(a) Secretary, A.P. Public Service Commission vs. – B.Swapna reported in (2005) 4 Supreme Court Cases 154 wherein the Apex Court held in para 15 as follows:-
“15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K.Ramachandra Iyer v. Union of India [(1984)2 SCC 141 : 1984 SCC (L&S) 214)] this Court held that once it is established that there is no power to relax essential qualification the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.”
(b) K.Manjusree – vs. – State of Andhra Pradesh and another reported in (2008)3 Supreme Court Cases 512 wherein it has been held in para 33 as follows:-
“33. The Resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribed any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.”
(c) In Hemani Malhotra – vs. – High Court of Delhi reported in (2008)7 Supreme Court Cases 11, the Apex Court held that the minimum marks for viva voce prescribed after written test was over, to be incorrect. The Apex Court in para 15 held as follows:-
“15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voice test was illegal.”
(iii) Since the written test has not been duly informed to the third respondent Tmt.T.Vijayasekari, the marks given by the Selection Committee in the written test have to be eschewed for considering the merit of the rival candidates.
(iv) Learned senior counsel for the third respondent T.Vijayasekari, referred to the comparative statement of marks of the petitioner Tmt.R.Rathinakumari; the third respondent Tmt.T.Vijayasekari and the another candidate and stated that it had not been properly assessed. The manner in which the marks had been granted is arbitrary and very casual. Further, the Selection Committee has shown undue favouritism to the selected candidate, the petitioner Tmt.R.Rathinakumari by granting higher marks. Therefore, the selection of the petitioner Tmt.R.Rathinakumari is tainted by bias and prejudice. The seniority of the third respondent Tmt.T.Vijayasekari has not been considered at all. The other academic excellence of the third respondent Tmt.T.Vijayasekari has been totally ignored.
(v) On these premises, it was pleaded by the learned senior counsel appearing for the third respondent Tmt.T.Vijayasekari that the order of the Appellate Authority, the Joint Director of School Education (Higher Secondary) is justified and rightly confirmed by the Government and prayed for dismissing the two writ petitions.
9. On the other hand, Thiru R.Thiyagarajan, learned senior counsel appearing for the management, the petitioner school and Mr.L.Chandrakumar, learned counsel appearing for the selected candidate, the petitioner Tmt.R.Rathinakumari challenges the order of the Joint Director of School Education (Higher Secondary) on the following grounds:-
(i) The impugned order is a non-speaking order, without application of mind. The Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 has been misconstrued and misinterpreted
(ii) The Joint Director of School Education while passing the order failed to consider the following aspects:- The third respondent Tmt.T.Vijayasekari has served the petitioner institution only as an English Secondary Grade Teacher from 29.12.1978 and she has acted as Assistant Headmistress only briefly. The District Educational Officer, Thiruvarur has stated that the third respondent Tmt.T.Vijayasekari has performed well as a teacher in the subject, viz., English by showing good results. In the same manner the petitioner school Secretary has also given commendation of the merit of the third respondent, Tmt.T.Vijayasekari and she is the senior. The Joint Director of School Education considering all these aspects allowed the appeal of the third respondent Tmt.T.Vijayasekari. Except the above factors, there is no reason given by the Joint Director of School Education to reject the recommendation of the Selection Committee selecting the petitioner Tmt.R.Rathinakumari as Headmistress.
(iii) The Joint Director has not given any reason why he is differing with the views of the Selection Committee who selected the petitioner Tmt.R.Rathinakumari after taking into consideration her merits, ability and also the performance in the interview conducted by the Selection Committee. The petitioner School aggrieved by the order of the Joint Director filed the Revision to the Government. Various infirmities were pointed out in the revision petition filed against the order of the Joint Director of School Education. It was primarily pointed out that in terms of Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulations) Rule, 1974, merit and ability has to be primarily considered in the process of selection and when both merit and ability are the same, the seniority will have to be taken into consideration. The third respondent Tmt.T.Vijayasekari though made a complaint with regard to the written test, had participated in the same without prejudice. This has not been considered by the competent authority, the Joint Director of School Education. The Government on its turn passed the order as follows:-
“According to the Government, for the purpose of promotion to the post of Headmistress, the experience of the teacher in the subject to which the said teacher is teaching has to be considered for the purpose of determining merit and ability. The selection of the petitioner Tmt.R.Rathinakumari as Headmistress by conducting written test to determine the merit and ability is not correct. There is no provision under the rules for the same.”
This appear to be the only point for the Government to concur with the findings of the Joint Director of School Education rejecting the revision petition and not approving the selection of the petitioner Tmt.R.Rathinakumari as Headmistress.
(iv) Learned Senior Counsel for the petitioner school relied upon the decision in G.Annamalai vs. – Secretary and Commissioner, Education Department, Government of Tamil Nadu reported in 2007(1) CTC 462 to state that there is no arbitrariness in the selection process and that the School Committee had an overall view of the merits of the rival candidates before selecting the teacher Tmt.R.Rathinakumari for the post of Headmistress. Para 14 of the decision reads as follows:-
“14. It could be seen from the counter affidavit that on 13.5.1985, the School Committee assessed the merit and ability of all the six candidates including that of the appellant and also the past conduct of the appellant including the punishment imposed. According to the management, the appellant is not fit to be promoted as Headmaster of the School and it is the decision taken by the School Committee, who is the competent authority under the Act. A similar issue arose before a Division Bench of this Court in the decision reported in S.P.Jalaja v. Karapetta Nadar Girl Higher Secondary School & Ors., 2002 WLR 81 wherein almost in identical circumstances the appellant therein was not given promotion as Headmistress, which was also challenged by the appellant repeatedly and ultimately the Division Bench in para 15 upheld the contention of the School Committee that merit and ability of all the candidates were assessed and the appellant therein was found not suitable. The Division Bench in para 15 held as follows,
“….. As rightly pointed out by the learned counsel, the School committee also took into account the entire service career of the candidates who had applied for the higher post. The Headmistress of the School occupies an unique position and she is the linchpin around and the school activities revolve around her and she should have full confidence of the teachers, pupils, school authorities and must have administrative control, managerial skill, financial control over the funds of the school and she must secure full and unstinted co-operation from teachers and pupils for the past performance of the school. Needless to mention, any deficiency on the part of the Headmistress would reflect not upon the individual members, but would reflect on the institution itself.”
(v) The learned Senior Counsel for the petitioner school also referred to paras 16 and 17 of the Apex Court’s decision in Sethuraman vs.- R.Venkataraman and others reported in (2007)6 Supreme Court Cases 382 to state that the view of the Managing Committee will have to be considered primarily for selection to the post of Headmistress. Paras 16 and 17 read 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 Account 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.”
(vi) The learned senior counsel for the petitioner school further relies upon the unreported decision in W.P.No.13017 of 2008 dated 23.12.2008 (R.Rajanarayanan vs. – Joint Director of School Education, (Secondary Education), Chennai-600 006).
10. Having considered the rival contentions, this Court is inclined to interfere with the impugned proceedings for the following reasons:-
(i) Insofar as the procedure adopted by the Selection Committee is concerned, the third respondent Tmt.T.Vijayasekari, cannot have a grievance that the written test was conducted without notification for the simple reason that the third respondent Tmt.T.Vijayasekari had participated the same without demur along with all other candidates.
(ii) Assuming for a moment that the written test marks should be eschewed for the purpose of considering the rival merits, on going through the comparative merits of the candidates in the statement of marks, which has been enclosed in the typeset of papers, the total marks earned by the petitioner Tmt.R.Rathinakumari, is well above the marks of the third respondent Tmt.T.Vijayasekari, even if the marks for the written test is excluded.
(iii) The comparative statement of marks produced in the present case takes into consideration, several factors, viz., merit, ability, knowledge, personality, presence of mind, leadership qualities, management qualities, marks given in the interview, general impression, etc. In the overall assessment, the petitioner Tmt.R.Rathinakumari scored well above the third respondent Tmt.T.Vijayasekari. Several parameters have been taken into consideration while considering the merit of the rival candidates. The procedure adopted by the Selection Committee to assess the merit is in accordance with the decision of a Division Bench of this Court in S.P.Jalaja vs. – Karapettai Nadar Girls Higher Secondary School & others reported in 2002 WLR 81. The Division Bench in the said case held as follows:-
“….. As rightly pointed out by the learned counsel, the School committee also took into account the entire service career of the candidates who had applied for the higher post. The Headmistress of the School occupies an unique position and she is the linchpin around and the school activities revolve around her and she should have full confidence of the teachers, pupils, school authorities and must have administrative control, managerial skill, financial control over the funds of the school and she must secure full and unstinted co-operation from teachers and pupils for the past performance of the school. Needless to mention, any deficiency on the part of the Headmistress would reflect not upon the individual members, but would reflect on the institution itself.”
(iv) The School Committee called for an interview and the three eligible candidates were uniformly subjected to the written test as well as other assessment test. There is no arbitrariness or discrimination in respect of one or other candidates. Therefore, the third respondent Tmt.T.Vijayasekari cannot have a grievance in the manner by which the interview was conducted.
11. The three decisions relied upon by the learned senior counsel for the third respondent Tmt.Vijayasekari does not apply to the facts of the present case for the following reasons:-
(i) In the case of B.Swapna (cited supra), the ratio laid down by the Apex Court is that the norms of selection cannot be altered after commencement of selection process. In the present case, no norms have been fixed prior to the interview. The Selection Committee is competent to decide the course of action that it may follow or devise a reasonable method for the purpose of selection, which is not arbitrary. So long as the action is not tainted with arbitrariness no grievance can be addressed.
(ii) In the case of Hemani Malhotra – vs. – High Court of Delhi reported in (2008)7 Supreme Court Cases 11, the Apex Court found that the minimum marks for viva voce prescribed after written test was over, to be incorrect. In the present case, there is no rules or regulations as to how the selection should be conducted. The procedure is left to the Selection Committee and they have followed their own method for assessing the merit of candidates. After the commencement of the interview, no rule or procedure was changed so as to give unfair advantage to one or other candidate. Therefore, the above said decision will not apply to the present case
(iii) Similarly referring to the case of K.Manjusree vs. – State of Andhra Pradesh reported in (2008)3 SCC 512 : (2008)1 SCC (L & S) 841, learned senior counsel for the third respondent Tmt.T.Vijayasekari, pointed out the observation of the Apex Court in para 33 which reads as follows:-
“33……. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But, if the Selection Committee wants to prescribe minimum Marks for interview, it should do so before the commencement of selection process.”
No doubt, in the present case, no rules or procedure has been prescribed. But on going through the comparative marks sheet, it is found that the total marks were prescribed for the various heads of assessment and all the candidates were considered equally on the said parameters and thereafter marks were awarded. No change in the minimum requirement was fixed after the interview as in the Apex Court’s case, but the marks were fixed in respect of each assessment head and the candidates were assessed under each category and marks awarded as per scale. Therefore, the decision in K.Manjusree case (cited supra) will not apply to the facts of the present case. To clarify the same, the total marks applicable to each head of assessment is as follows:-
Sl.No.
Subject
Marks
1
Merit
10
2
Ability
10
3
Knowledge
50
4
Personality
5
5
Presence of mind
5
6
Leadership qualities
5
7
Management skill
5
8
Interview
5
9
General impression
5
Total
100
This is applicable to all candidates. The assessment is made on merits on the total marks obtained by each candidate.
12. Now, coming to the order of the Joint Director of School Education, much has to be said about the manner in which the appeal has been disposed off by the Joint Director of School Education. The comparative merit of the candidates have not been considered. The recommendation of the School Committee has not been discussed. The merit and ability of the rival candidates had not been taken into consideration. The Joint Director has merely recorded the period of service of the third respondent Tmt.T.Vijayasekari and the recommendation of the District Educational Officer and the School Secretary. There is no dispute on this. However, that by itself cannot be a ground to allow the appeal. As has been rightly pointed out by Thiru R.Thiyagarajan, learned senior counsel appearing for the petitioner school, the appellate authority, the Joint Director of School Education has failed to exercise his appellate jurisdiction in accordance with law. He failed to consider the merit and ability of the rival candidates while differing with the recommendation of the School Committee. In any event, the appellate authority while exercising such plenary power, has to come to a prima facie conclusion as to how the decision of the Selection Committee is at fault before embarking on an exercise to reconsider the merit and ability of the rival candidates. The appellate authority has neither found fault with the Selection Committee’s recommendation nor has discussed the merit of the rival candidates. Therefore, this Court is constrained to hold that the appellate authority failed to consider the merit and ability of the rival candidates and has miserably passed the order allowing the appeal merely on the premise that the third respondent Tmt.T.Vijayasekari is senior in service.
13. I hasten to add that with regard to the seniority of the third respondent Tmt.T.Vijayasekari certain facts needs to be considered. The third respondent was appointed on 29.12.1978 in the petitioner school whereas the petitioner Tmt.R.Rathinakumari was appointed on 23.11.1979 in another school. The petitioner Tmt.R.Rathinkumari is only 11 months junior to the third respondent Tmt.T.Vijayasekari. There is no glaring disparity in the period of service.
14. This Court has no hesitation to hold that the order of the Joint Director is a non-speaking order and has failed to consider the merits of rival candidates. It has been passed cursorily merely on the facts that the third respondent Tmt.T.Vijayasekari is senior in service.
15. Insofar as the order of the Government is concerned, at the outset it is to be pointed out that the Government has misconstrued Rule 15(4). The Rule clearly provides that the selection to the post of Headmistress will be on the basis of merit and ability. If merit and ability is almost the same, then the seniority will have to be considered. On going through the order of the Government, it is seen that the only reason for rejecting the revision appears to be that the Selection Committee has selected the candidate based on written test and has selected a junior in service, denying the senior, the claim for the post of Headmistress.
16. As has been already pointed out above, the comparative marks statement furnished by the Selection Committee clearly goes to show that the written test alone was not the criteria for selection, other parameters were considered and only on comparative merits, the petitioner Tmt.R.Rathinakumari was selected. There is no glaring infirmity or arbitrariness in the selection procedure. Neither the Government nor the appellate authority have thought it fit to point out any legal infirmity in the selection process. They have not discussed the merit and ability of the rival candidates except to state that written test is not permissible under the rules and that the third respondent Tmt.T.Vijayasekari is senior in service. These two issues are irrelevant as the Rule 15(4) is very clear that merit and ability alone should be taken into consideration. Seniority will be considered only when both are almost the same.
17. As far as the written test is concerned, as has been pointed out, there is no bar in the Rules that the School Committee should not include written test as part of the selection process. In any event, the third respondent Tmt.T.Vijayasekari, having participated in the written test voluntarily cannot turn round and state that the written test conducted at the time of interview is bad. This view is fortified by the decision of the Apex Court in Madan Lal vs. – State of Jammu & Kashmir reported in AIR 1995 SC 1088 which has been extracted by N.PAULVASANTHAKUMAR,J. in the decision rendered in W.P.No.13017 in 2008 (Rajanarayanan vs. – Joint Director of School Education (Secondary Education), College Road, Chennai 600 006 and three others) dated 23.12.2008, in paras 8 and 9 which will be relevant to quote for the above said reason:-
“8. In Madan Lal v. State of J & K this court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Commission was not properly constituted.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.”
18. In this case, the order of the Government as well as the Joint Director of School Education, are cryptic orders, bereft of reasons and without application of mind to the merits of rival candidates. The Selection Committee’s role in selecting the candidate based on the parameters set out in Jalaja’s case (cited supra) cannot be casually upturned by the appellate authority. Even though the power is vested in him, such power will have to be exercised cautiously and that too for good reasons to be recorded. The order of the Joint Director of School Education is also bereft of reasons. The Government failed to correct the error in the order of the appellate authority and furthermore, the Government rejected the revision without application of mind to the relevant rules. It misconstrued the Rule 15(4) and upturned the School Committee’s selection process. This will be opposed to law.
19. For all the above reasons, the impugned proceedings are set aside. The selection of the petitioner Tmt.R.Rathinakumari to the post of Headmistress of the petitioner school by the Selection Committee is valid. The two writ petitions are allowed as prayed for. No costs.
Index: Yes 24.2.2010
Internet: Yes
ts
To
1.The Secretary to Government,
School Education Department,
Fort St. George,
Chennai-600 009.
2.The Joint Director of School Education
(Higher Secondary),
Chennai- 600 006.
R.SUDHAKAR,J.,
ts
Common Order in
W.P.Nos.3329 & 18210 of 2003
Date 24.2.2010