{"id":75030,"date":"2009-07-30T00:00:00","date_gmt":"2009-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/susila-vs-kalyani-1st-on-30-july-2009"},"modified":"2019-01-15T17:02:23","modified_gmt":"2019-01-15T11:32:23","slug":"susila-vs-kalyani-1st-on-30-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/susila-vs-kalyani-1st-on-30-july-2009","title":{"rendered":"Susila vs Kalyani … 1St on 30 July, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Susila vs Kalyani … 1St on 30 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 30\/07\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN\nAND\nTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN\n\nWrit Appeal(MD) No.246 of 2009\nand\nM.P.(MD)No.1 of 2009\n\nSusila\t\t\t\t\t... Appellant\/3rd Respondent\n\nVs.\n\n1.Kalyani\t\t\t\t... 1st Respondent \/Petitioner\n2.The Commissioner,\n  Madurai Corporation, Madurai.\n3.The Chief Educational Officer,\n  Corporation Schools, Madurai.\t\t\t\n\t\t\t \t        ... Respondents 2 and 3\/Respondents 1 & 2\n\nPrayer\n\nWrit Appeal filed under Clause 15 of Letters Patent against the order of\nthe learned Single Judge, dated 28.05.2009 made in W.P.(MD)No.8188 of 2008 filed\nunder Article 226 of the Constitution of India praying for a Writ of\nCertiorarified Mandamus, to call for the records of the order passed by the\nfirst respondent, dated 01.09.2008 in Na.Ka.No.A1\/00016\/08, quash the same and\nconsequently, direct the first respondent to promote the petitioner as Higher\nSecondary School Headmaster.\n\n!For Appellant\t\t... Mr.C.Selvaraju,\n\t\t            Senior Counsel for Mr.S.Mani\t\n^For 1st Respondent\t... Mr.V.Selvaraj, S.C.,\n                            for Mr.N.Dilip Kumar\nFor 2nd Respondent\t... Mr.M.Suresh Kumar,\nFor 3rd Respondent\t... Mr.R.Janakiramulu,\n\t\t            Special Government Pleader.\t\t\n\n:JUDGMENT\n<\/pre>\n
D.HARIPARANTHAMAN, J<\/p>\n
\tThe appellant was a Headmistress in a high school under the control of the
\nsecond respondent. She was promoted to the post of Headmistress of Higher
\nSecondary School from High School by the second respondent, by an order, dated
\n01.09.2008. The said order was challenged by the first respondent herein in
\nW.P(MD)No.8188 of 2008. The writ petition was allowed by the learned single
\nJudge on 28.05.2009.  The present appeal is against the said order.\n<\/p>\n
\t2.We have heard Mr.C.Selvaraju, learned Senior Counsel for the appellant,
\nMr.V.Selvaraj, learned counsel for the first respondent, Mr.M.Sureshkumar,
\nlearned counsel for the second respondent and Mr.R.Janaki Ramulu, learned
\nSpecial Government Pleader appearing for the third respondent.\n<\/p>\n
\t3.The special rules for the Tamil Nadu Higher Secondary Educational
\nService framed under Article 309 of the Constitution of India governs the matter
\nof promotion to the post of Headmaster in Higher Secondary Schools. The Higher
\nSecondary School Headmaster belongs to Class-I service under the Rules. The Post
\nGraduate Assistant in languages belongs to Category-I of Class II service and
\nthe Post Graduate teacher in academic subjects belongs to Category II of Class
\nIII service. The inducted teachers at Higher Secondary Schools belong to
\nCategory III of Class II service. The vacancies arising in Class-I service,
\nnamely, the Headmasters in Higher Secondary Schools, are to be filled in the
\nratio of 2:5:2, i.e., two Headmasters in High Schools by recruitment by
\ntransfer, 5 Post Graduate Assistants by promotion and 2 inducted teachers by
\npromotion. Further, more importantly, while ensuring the proportion of
\nappointment in the service, cycle for such appointment to the post of Headmaster
\nin the Higher Secondary Schools is also provided in the Special Rules.\n<\/p>\n
\t4.The relevant rule in this case is extracted hereunder:
\n\t“i)Vacancies arising in Class I of the service shall be filled up so as to
\nensure that the proportion of appointment in the service in the said class by
\nrecruitment by transfer\/by promotion from Categories 1 and 2 of Class II and
\nClass III taken together and by promotion from Category 3 of Class II
\nrespectively be in the ratio of 2:5:2 and the cycle for such appointment shall
\nbe  as  follows:\n<\/p>\n
By recruitment by transfer \t\t\t1-H.M. of High School
\nBy promotion from Categories 1 and 2 \t\t1-P.G Assistant
\nof Class II and Class III
\nBy promotion from Category 3 of Class II\t1-Inducted
\n\t\t\t\t\t \tteacher
\nBy recruitment by transfer\t\t\t1-H.M.of High
\n\t\t\t\t\t\t   School
\nBy promotion from Categories 1 and 2 of \t1-P.G. Assistant
\nClass II and Class III
\nBy promotion from Category 3 of Class II\t1-Inducted teacher
\nBy promotion from Categories 1 and 2 of \t1-P.G. Assistant
\nClass II and Class III
\nBy promotion from Categories 1 and 2 of \t1-P.G. Assistant
\nClass II and Class III
\nBy promotion from Categories 1 and 2 of \t1-P.G. Assistant
\nClass II and Class III<\/p>\n
Provided that if no sufficient number of qualified and suitable candidates are
\navailable for appointment by a particular method, such vacancies shall be filled
\nin by the other method prescribed”.\n<\/p>\n
\t5.It is an admitted fact that since there are no availability of inducted
\nteachers, the appointment to the post of Headmasters in Higher Secondary Schools
\nare only from two sources, namely, the Headmasters in High Schools and Post
\nGraduate Assistant in Higher Secondary Schools.\n<\/p>\n
\t6.The aforesaid Rule makes it very clear that while maintaining the
\nproportion, the cycle for such appointment shall also be followed.\n<\/p>\n
\t7.As per the above rule, when the post of Headmaster of Higher Secondary
\nSchools run by the Corporation was sought to be filled up, Tmt.Janaki, High
\nSchool Headmaster, was promoted on 22.08.2006 as against the first point in the
\ncycle. The second point was to go to a P.G.Assistant and accordingly, one
\nMrs.D.Vellaithai, P.G.Assistant, was promoted on 20.07.2007. The third post
\nshould go to an inducted teacher. Since, no inducted teacher is available, it
\nwas to go to the next cadre viz., the High School Headmaster. Accordingly,
\nMr.Sundarraj, High School Headmaster, was promoted on 07.09.2007. The next point
\nwas to go to a P.G.Assistant and accordingly, Mrs.Radha, P.G.Assistant, was
\npromoted on 05.06.2008.  The next point in the cycle should go to an inducted
\nteacher. Since, no inducted teacher is  available,  it had to go to a
\nP.G.Assistant and accordingly, Tmt.Manjula, P.G.Assistant, was promoted on
\n05.06.2008. Thereafter, the next post had to go to a P.G.Assistant and
\naccordingly, Tmt.Kalyani, (not the respondent), P.G.Assistant was promoted on
\n05.06.2008 and again, the next post went to a P.G.Assistant and accordingly,
\nTmt.Sivakami, P.G.Assistant, was promoted on 02.09.2008. This is how the cycle
\nwas operated and 2:5:2 ratio also was maintained.\n<\/p>\n
\t8.The aforesaid promotions as per the cycle are given in a tabular form,
\nas follows, for easy appreciation:-\n<\/p>\n
By recruitment by transfer \t\t\tTmt.Janaki, H.M. of High School
\nBy promotion from Categories 1 and 2 \t\tMrs.D.Vellaithai, P.G Assistant
\nof Class II and Class III
\nBy promotion from Category 3 of Class II\tInducted teacher (not available)
\nBy recruitment by transfer\t\t\tMr.Sundaraj, H.M.of High School
\nBy promotion from Categories 1 and 2 \t\tMrs.Radha,
\nof Class II and Class III\t\t\tP.G. Assistant
\nBy promotion from Category 3 of Class II\tInducted teacher (Not Available)
\nBy promotion from Categories 1 and 2 \t\tMrs.Manjula,
\nof Class II and Class III\t\t\tP.G. Assistant
\nBy promotion from Categories 1 and 2 \t\tMrs.Kalyani(not the respondent)
\nof Class II and Class III\t\t\tP.G. Assistant
\nBy promotion from Categories 1 and 2 \t\tMrs.Sivakami,
\nof Class II and Class III\t\t\tP.G. Assistant<\/p>\n
\t9.As stated above, Tmt.Manjula, P.G.Assistant, was promoted on 04.06.2008.
\nBut after joining the promoted post, she sought reversion and her request for
\nreversion was accepted and by an order dated 26.06.2008, , the second respondent
\nreverted her from the post of Headmistress of Higher Secondary School to the
\npost of P.G.Assistant. From the files, it is seen that she relinquished her
\nright for promotion to the post of Higher Secondary School Headmaster for
\nfuture, even while seeking reversion.\n<\/p>\n
\t10.After the reversion of Tmt.Manjula, the appellant who was a Headmaster
\nin a High School was promoted on 02.09.2008 in the cycle meant for High School
\nHeadmaster. The said promotion was challenged by the first respondent in
\nW.P(MD)No.8188 of 2008 on the ground that she was promoted against the vacancy
\nthat was caused due to the reversion of Tmt.Manjula, a P.G.Assistant and that
\ntherefore, the first respondent should have been promoted in the said vacancy.\n<\/p>\n
\t11.The learned single Judge held that the ratio 2:5:2 would be maintained,
\nonly if the vacancy that was caused due to the reversion of Tmt.Manjula,
\nP.G.Assistant, is filled by another P.G.Assistant. It was further held that the
\nsecond respondent proceeded on a wrong notion that once promotion was given as
\nper the cycle, a post that falls vacant, consequent on resignation has to be
\nfilled up by the next cadre as per the cycle.  According to the learned single
\nJudge, the vacancy was not due to resignation but due to reversion.  Hence, the
\nlearned Judge held that the vacancy had to be filled from the cadre of
\nP.G.Assistant.\n<\/p>\n
\t12.The learned Senior Counsel for the appellant assails the said reasoning
\nof the learned single Judge on the ground that while the rule contemplates
\nmaintaining the proportion of 2:5, the rule also provides that the cycle has to
\nbe followed. The Senior Counsel contended that upon the promotion of
\nTmt.Manjula, P.G.Assistant, as per the cycle, the slot meant for P.G.Assistant
\ngot exhausted and the next vacancy has to be filled by following the cycle.\n<\/p>\n
\t13.On the contrary, Mr.V.Selvaraj, learned counsel for the first
\nrespondent, sought to sustain the order of the learned single Judge and argued
\nthat since Tmt.Manjula became the P.G.Assistant on reversion, the post should be
\nfilled up only by another P.G.Assistant and not by High School Headmaster. The
\nlearned counsel further argued that in order to maintain the proportion of 2:5,
\non the reversion of Tmt.Manjula from the post of Headmistress to P.G.Assistant,
\nanother P.G.Assistant should be promoted as Headmaster of Higher Secondary
\nSchools.\n<\/p>\n
\t14.The learned counsel for the first respondent while citing the following
\ndecisions, fairly stated that the decisions are not directly on the point.
\n\t“(i) In A.K.Subraman and others Vs. Union of India and others reported in
\n1975 1 SCC 319,\n<\/p>\n
\t(ii) In N.K.Chauhan and others Vs. State of Gujarat and others reported in
\nAIR 1977 SCC 251,\n<\/p>\n
\t(iii) In P.G.Institute of Medical Education & Research etc., Vs.
\nK.L.Narasimhan and another reported in AIR 1997 SC 3687,<\/p>\n
\t(iv) In Gonal Bhimappa Vs. State of Karnataka reported in 526 SLR 1987, in
\nNyadar Singh Vs. Union of India and others reported in 1988 (4) SCC 170\n<\/p>\n
\t(v) In R.K.Sabharwal and others Vs. State of Punjab and others reported in
\n1995 (2) SCC 745″.\n<\/p>\n
We have also perused those decisions and those decisions are not helpful in
\ndeciding the issue involved in this case.\n<\/p>\n
\t15.We have carefully considered the rival submissions and we find it
\ndifficult to sustain the order of the learned single Judge. When the rule
\nspecifically prescribes the cycle that has to be followed, the same cannot be
\nsimply ignored. Since the rule is very specific providing a cycle, every vacancy
\nhas to be filled up according to the cycle and the cycle itself maintains the
\nproportion of 2:5.  The fallacy of the argument of the learned counsel for the
\nfirst respondent is that it fails to give due weightage to the adherence to the
\ncycle as provided in the special rules. If Tmt.Manjula had relinquished her
\npromotion before she was actually promoted to the post of Headmistress, it could
\nhave been a different matter. But she sought reversion (not relinquishment)
\nafter she was promoted against the slot meant for P.G.Assistant and after she
\njoined the promoted post. Therefore, the next vacancy that was caused for
\nwhatever reason, should go to the next slot viz., the Headmaster of a High
\nSchool, as per the cycle. The relevant factor is the availability of vacancy and
\nnot how the vacancy was caused; otherwise the rule providing for following of
\ncycle would have no meaning.\n<\/p>\n
\t16.Once Tmt. Manjula, P.G.Assistant, was promoted and she joined the post
\nof Headmistress, the slot meant for P.G.Assistant in the cycle got exhausted and
\nthe next vacancy has to be filled, according to the cycle only.  Otherwise, the
\nprovision of cycle in the Rules has no meaning.  As stated earlier, the relevant
\nfactor is the creation of the vacancy and not the cause for its creation since
\nthe cycle itself ensures the proportion of 2:5. If the contention of the learned
\ncounsel for the first respondent is accepted, the second respondent has to see,
\nwhile filling every vacancy, whether the vacancy was caused due to the
\ndeath\/retirement\/resignation etc., of Headmaster or P.G.Assistant and that is
\nnot the purport of the Rule that was extracted above.\n<\/p>\n
\t17.For the above stated reasons, we are of the considered view that the
\nwrit appeal deserves to be allowed and the order of the learned single Judge is
\nliable to be set aside.  Accordingly, the writ appeal is allowed and there will
\nbe no order as to costs.\n<\/p>\n
sms<\/p>\n
To<\/p>\n
1.The Commissioner,
\n  Madurai Corporation, Madurai.\n<\/p>\n
2.The Chief Educational Officer,
\n  Corporation Schools, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Susila vs Kalyani … 1St on 30 July, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-75030","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSusila vs Kalyani ... 1St on 30 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/susila-vs-kalyani-1st-on-30-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Susila vs Kalyani ... 1St on 30 July, 2009 - 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