ORDER
A.K. Rajan, J.
1. The prayer in W.P. No.20966/2001 is for the issue of writ of certiorarified mandamus calling for the records of the first respondent in G.O.Ms.No.5, School Education Department dated 9.1.2001 and the order dated 28.9.2001 of the third respondent and the order dated 11.10.2001 of the fourth respondent and quash the same and direct the third respondent to approve the proposal dated 7.2.2001 submitted by the fourth respondent school.
2. The prayer in W.P. No.6078/2002 is for the issue of writ of certiorarified mandamus calling for the records of the second respondent dated 19.1.2001 and the order dated 24.12.2001 of the first respondent granting approval for promotion of the fifth respondent based on seniority alone and quash the said orders and direct the first respondent to grant approval for promotion of the petitioner as Headmaster from 1.3.2000 on the proposal of fourth respondent dated 7.2.2001 submitted to the first respondent.
3. The brief facts required for disposal of these two writ petitions are as follows:
The fifth respondent in W.P. No.6078/2002 joined as secondary grade teacher on 9.8.78 in the 4th respondent school. The writ petitioner (in both the writ petitions) joined the same school on 1.9.82 as secondary grade teacher. Therefore, as secondary grade teacher fifth respondent was senior to him. The writ petitioner has obtained higher qualifications like M.A., M.Ed. Therefore, his educational qualification is higher than the fifth respondent. When the post of the Headmaster became available the school committee passed a resolution recommending appointment of the writ petitioner as the Headmaster of the school as per Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 since he possessed higher educational qualifications. But the District Elementary Educational Officer rejected the proposal on the ground that seniority should be considered when the merits and ability are equal and instructed that the senior most person in the cadre of secondary grade teacher shall be appointed as the Headmaster. Later on, by order dated 11.10.2001 the fifth respondent was appointed as the Headmaster, thereby, the appointment of the petitioner earlier as the Headmaster was cancelled. Hence these two writ petitions are filed for the reliefs mentioned above.
4. Learned counsel appearing for the petitioner in both the writ petitions submitted that the post of Headmaster is a selection post. It is a promotion by selection. Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules reads as follows:
“Promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.”
Relying upon this rule the counsel submitted that it is only the merit and ability that has to be considered primarily and seniority alone cannot decide this issue. As the petitioner is having higher educational qualification, he is more meritorious than the fifth respondent. The merit alone should have been considered and seniority should not be the only consideration for promotion. Therefore, the non-appointment of the petitioner as the Headmaster violates the provisions of Rule 15(4). In support of his contention he relies on the judgment of this court in Siluvai Rajan, M. v. Director of School Education & Others (2001 Writ L.R. 222) wherein this Court has held in paragraph 5 as follows:
“Even otherwise, in the interest of the institution to provide good education it is always open to the institution to select a better qualified person by calling for the applications for a comparative study. If any better and suitable candidates are available, the management cannot be forced to give a promotion to the existing candidate by virtue of the seniority alone. Rule 15(4) makes it clear that the promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.”
Further the impugned G.O. Ms.No.5 dated 9.1.2001 takes into account only the seniority and not merit. The G.O. refers to conversion of one post of secondary grade teacher as Headmaster. Therefore, this G.O. ignores the merit completely and therefore, it violates Article 14 and Rule 15(4). He also challenges the proceedings issued by the District Elementary Educational Officer dated 19.1.2001 whereby one of the posts of secondary grade has been converted as Headmaster post. Therefore, the G.O. as well as the communication issued by the District Elementary Educational Officer ignores merit and ability and therefore it is unconstitutional and it has to be struck off. Consequently the writ petitioner must be appointed as the Headmaster in the school.
5. Learned counsel appearing for the management Mr.N.Paul Vasanthakumar submits that from the reading of the G.O. it is clear that it is only upgradation of the post and it is not a promotion. According to the G.O. the post of the senior most secondary grade teacher was upgraded as the Headmaster. Therefore, it is only upgradation of the existing post or conversion of the senior most person as Headmaster. It is not a promotional post and therefore, Rule 15(4) does not come into play at all. Learned counsel also submitted that originally the management also thought that it was a promotional post and therefore, they considered merit alone. They did not even consider the ability; when the mistake was pointed out by the District Elementary Educational Officer that was rectified and the order of appointment of the petitioner was cancelled and the fifth respondent Velayudham was promoted as the Headmaster.
6. A perusal of the original recommendation made by the management recommending the petitioner for the appointment as Head Master would show that the management had also taken into account the certificate in typewriting possessed by the petitioner. That shows that irrelevant aspects were also taken into account. Further, merit does not mean only educational qualification. Merit is a much wider term which includes so many other aspects. Educational qualification is only one of the aspects. Apart from that, consideration to the other teachers, behaviour and teaching ability and moving with others (including the students) etc. would constitute merit. The original recommendation of the school committee did not take those things into account. Further, when seniority is being equal, unless the senior person is disqualified from getting into higher post, the claim of the senior cannot be ignored. Such a claim is a legitimate expectation of every person who enters the service. Therefore, such legitimate expectation cannot be thrown away in the name of the merit, namely, higher qualification. Therefore, neither the G.O. nor the proceedings by which the fifth respondent was appointed as the Headmaster suffers from any illegality. It cannot be said that the ‘merit’ of the petitioner namely, the higher educational qualification was ignored and that was arbitrary. Both the writ petitions are devoid of merits.
7. In the result, both the writ petitions are dismissed. No costs.