IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2013 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU W.P.No.11309 of 2012 and M.P.Nos.1 to 3 of 2012 G.Thangakumar .. Petitioner Vs. 1.The Chief Educational Officer, Erode District, Erode. 2.The District Educational Officer, Gobichettipalayam, Erode District. 3.The Secretary, Diamond Jubilee Higher Secondary School, Gobichettipalayam, Erode District. 4.P.Kandasamy P.G.Assistant (English) Diamond Jubilee Higher Secondary School, Gobichettipalayam 638 542 Erode District. 5.The Joint Director, Higher Secondary Education, Directorate of School Education, Chennai-6. 6.K.Arumugam, P.G.Assistant (Zoology) Diamond Jubilee Higher Secondary School, Gobichettipalayam 638 542. 7.K.M.Nachiappan P.G.Assistant (Botany) Diamond Jubilee Higher Secondary School, Gobichettipalayam 638 542, Erode District. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the fifth respondent in Pa.Mu.No.53152/W5/E3/11 dated 02.04.2012 and quash the same as illegal and contrary to the provisions of the Rule 15(4)(d) read with 15(4)(ii) of Tamil Nadu Recognized Private Schools Regulation Rules 1974 and G.O.27, School Education dated 28.01.2003 and further direct the 3rd respondent Committee to appoint the petitioner herein as the Headmaster of the School. For Petitioner : Mr.R.Yashod Vardan, Senior Counsel for M/s.P.J.Rishikesh For Respondents : Mr.P.S.Sivashanmugasundaram Addl. Government Pleader for R1, R2 and R5 Mr.A.K.Kumaraswamy for R3 M/s.P.Mahalakshmi for R4 M/s.A.Tamilvanan for R6 & R7 O R D E R
The writ petitioner, who is working as Assistant Head Master (Post Graduate) in the 3rd respondent School has come forward to file the present Writ Petition seeking to challenge an order dated 2.4.2012 passed by the 5th respondent appellate authority, namely the Joint Director of Higher Secondary Education, Chennai and after setting aside the same seeks for a direction to the 3rd respondent School to appoint the petitioner as Headmaster of the School.
2. Notice of Motion was ordered on 23.4.2012. It was stated that if no approval for appointment of the 4th respondent is given for holding the post of Headmaster, then status quo as on 23.4.2012 should be maintained.
3. On notice from this court, the 3rd respondent has filed a counter affidavit together with supporting documents in the form of typed set.
4. Heard the arguments of Mr.R.Yashod Varadan, learned senior counsel leading Mr.P.J.Rishkesh, learned counsel for the petitioner, Mr.P.S.Sivashanmuga Sundarm, learned Additional Government Pleader taking notice for the respondent Nos.1, 2 and 5, Mr.A.Kumaraswamy, learned counsel for the 3rd respondent School management, Ms.P.Mahalkshmi, learned counsel for 4th respondent and Mr.A.Tamilvanan, learned counsel for the 6th and 7th respondents.
5. The stand of the petitioner was that he is holding the post of P.G.Assistant and his educational qualification is M.A., M.Ed., and M.Phil. He was appointed as P.G.Assistant in the year 1982 and has been working for the last 27 years. He was promoted as Assistant Headmaster from the academic year 2009-2009. He was also due to retire from the School during July 2013. During his service in the School, he has produced 100% result in his subject.
6. The post of Headmaster became vacant on account of the earlier Headmaster got retired from service on 31.5.2011. The School Committee called for applications from all qualified Teachers working in the School and the interview was scheduled on 31.5.2011. The petitioner along with 4th, 6th and 7th respondents are four candidates who have aspired for being considered for appointment to the post of Headmaster. They were directed to appear before the School Committee on 31.5.2011. The School Committee instead of selecting the petitioner had chosen to select the 4th respondent, who was far junior, namely he has only 8 years and 6 months as P.G.Assistant and 19 years junior to the petitioner. The School Committee had not taken note of the relevant criteria in appointing the 4th respondent.
7. Aggrieved by the selection of the 4th respondent as Headmaster of the School, the petitioner filed a Writ Petition before this Court being W.P.No.19351 of 2011 challenging the same. This Court dismissed the Writ Petition on 20.8.2011 holding that as against the denial of promotion, the statutory remedy by way of appeal is available under Rule 15-4(A) of the Tamil Nadu Recognized Private Schools (Regulation) Rules and the petitioner has to avail the said remedy.
8. Thereafter, the petitioner preferred an appeal to the 5th respondent vide his appeal dated 13.9.2011 challenging the appointment given in favour of the 4th respondent dated 31.5.2011. The 5th respondent appellate authority after due notice to the 3rd respondent and 4th respondent by order dated 2.4.2012 dismissed the appeal filed by the petitioner.
9. In the order dated 2.4.2012, the appellate authority had found that the petitioner joined as P.G.Assistant in Economics on 12.4.1984 and the 4th respondent joined as Graduate Assistant on 19.7.1985 and promoted as P.G.Assistant on 18.11.2002. While the petitioner claimed that for the last five years, he had taken classes for 300 students and obtained 100% results, the 4th respondent is teaching English both for 11th Standard and 12th Standard and in respect of Science and Arts Students for teaching English, he obtained 100% result in the examination and he is also responsible for the students in getting 100 marks in the subjects. The 4th respondent was working even on holidays and his work was highly appreciable. Apart from this, the 4th respondent also functions at environmental Organisations for the last 6 years as incharge and has been inculcating the need for preserving the environment and has been a pioneer to the students community. Even though under Rule 15(4), the consideration for appointment is based upon merit and ability and seniority can be considered only they are approximately equal, considering the overall circumstances of the case, he found that the decision of the School management in selecting the 4th respondent does not call for interference and therefore, in that view of the matter, the appeal was dismissed. It is against the order dated 2.4.2012, the Writ Petition came to be filed.
10. In the appeal memo filed by the petitioner before the 5th respondent, the petitioner was contending that he was meritorius and was senior to the 4th respondent. It was also stated that the 3rd respondent made appointment with mala fide intention by relaxing the norms in order to suit the 4th respondent. The School Committee was not properly conducted as contemplated under Rule 14 and no proper notice was given for conducting the interview on3 1.5.2011. The agenda sent to the members only refers to the consideration of the applications only and there was no mention about the interview. Even in the meeting, out of 12 members, only 7 members were attended and out of 7 members, out 3 persons signed the appointment. There is no quorum for the meeting. Hence, the meeting itself is not valid in the eye of law.
11. Though this contention has been raised in ground (d) of the appeal memorandum, the same contention is reiterated in para (e) of the affidavit filed in support of the Writ Petition, i.e., there are 12 School Committee members, out of which 7 members were present. Once the interview was over, the 3rd respondent declared the 4th respondent as Headmaster of the School as he was selected and he was given appointment to assume office on 31.5.2011. But, curiously in the affidavit in support of the Writ Petition, the other allegation found in ground (d) of the appeal memorandum that out of 7 members, only 3 signed the appointment, was not reiterated.
12. Repelling the said stand taken by the respondents, the 3rd respondent School filed a counter affidavit. In paragraphs 4 and 5, it was averred as follows:
"4. The School Committee after taking note of the individual merits and qualification of the four teachers resolved to appoint the 4th respondent Kandasamy as Headmaster and accordingly issued the appointment order. The claim of the petitioner that he is more fully qualified than the 4th respondent is absolutely wrong. Each of the 12 Committee members assessed the merits of the four candidates separately and majority of them opined that the 4th respondent Kandasamy is fully qualified and more suitable for the post than the other 3 candidates. After interview of the 4 candidates, 111 out of 12 members favoured the 4th respondent Kandasamy and recommended to promote him as Headmaster. All the rules and regulations to the psot of Headmaster were followed in letter and spirit and the 4th respondent was promoted on merit and ability.
5. It is submitted that Rule 15(4) of Tamilnadu Recognized Private School (Regulation) Rules, 1974 clearly provides that promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. Since post of Headmaster is a Selection post, promotion is based on merit and ability, This Hon'ble Court and the Apex Court have repeatedly held that School Committee which is the appointing authority is to decide merit and ability of candidates and the same cannot be interfered with by any other authority. The School Committee after considering the merits of each of the 4 candidates appeared for the interview came to the conclusion that the 4th respondent is suitable and better qualified than the other 3 candidates and therefore promoted him as Headmaster of the School. Each and every rule regarding selection and appointment of Headmaster is scrupulously followed and there is no irregulairity in selecting the 4th respondent as Headmaster of the School. The 5th respondent has now approved the appointment of 4th respondent."
13. Mr.R.Yashod Varadan, learned senior counsel appearing for the petitioner contended that subsequent to the meeting the 3 Teachers viz., Mr.M.Veluswamy, Assistant Headmaster, Mr.N.Vaidyanathan, Senior Tamil Pandit and Mr.S.Bharathi, Tamil Pandit have sent representation stating that they were not permitted in the Committee meeting and Mr.K.M.Kailasam, Dr.Mohan and Mr.L.Sundaravadivel have not signed the minutes and after the meeting was over, when their signature was sought to be obtained, they along with the petitioner sought for an opportunity to put forth their views, but notwithstanding the same, they were forced to sign the minutes. Therefore, in the light of the same, it was submitted by them that all in not well in the School Committee.
14. However, Mr.A.K.Kumaraswamy, learned counsel appearing for the School Committee produced the copies of the School Committee minutes, notice calling for application and the notice given to the School Committee members as well as the Minutes of the Committee Meeting held on 31.05.2011. It is seen from the said Minutes that 12 members have participated in the meeting and Mr.K.M.Kailasam, Treasurer, Dr.R.Mohan and Mr.G.L.Sundara Vadivelan are the only three members who are not the signatories to the minutes, but their presence in the meeting was not disputed by both sides. The other three members who have allegedly sent representation have also signed the minutes affixing date of signature as 31.05.2011. As to whether as per their subsequent communication they were forced to sign in the minutes can be accepted, without their being any further materials, this Court is constrained to confirm that they have attended the meeting without any prejudice as can be seen from the minutes. The further argument that out of 7 members 3 members have signed also cannot stand to be a reason, as from the minutes it is seen that except three members, all the nine members have signed in the minutes.
15. The quorum for conducting a School Committee Meeting is set out under Rule 14 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974. Rule No.14(2)(b) stipulates that at least 50% of the total members of the Committee should be present to satisfy the quorum for the meeting. In the present case, the meeting cannot be questioned on the ground of absence of quorum as 9 out of 12 members have approved the minutes wherein by which the fourth respondent was selected and appointed as the Headmaster of the School. Under Section 18(1)(b), the power to appoint a Teacher is vested only with the School Committee and the State Government would also amend the rule 12 wherein the constitution of the School Committee has been redefined and reference of the said Rule would show that the School committee should have 6 members who are the representatives of the educational agency, 1 Headmaster of the school (Ex-officio), 1 parent teacher association nominee and 1 senior most non-teaching staff if available. In the present case, though three teachers said to have been given a letter stating that they have been forced to sign in the minutes, they cannot question the appointment of the fourth respondent, having signed in the minutes. In the absence of any materials, this Court is unable to accept such contention. As against the decision of the School Committee for denial of promotion, statutory remedy by way of appeal is available under Rule 15-4(A) of the Tamil Nadu Recognized Private Schools (Regulation) Rules and the petitioner exhausted the remedy by way of statutory appeal.
16. Under such circumstances, the only question is whether this Court sitting under Article 226 of the Constitution of India, can interfere with the decision taken by the School Committee and approved by the Appellate Authority. In S.Sethuraman v. R.Venkataraman and Others reported in (2007) 6 SCC 382, an identical issue was considered by the Supreme Court and in Para 17, the Supreme Court has observed as follows:
"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."
In the light of the same, this Court is not inclined to accept the contention of the petitioner as the same is contrary to the statutory rules found in Rule 15(4) as to what constitutes a policy is a matter which has to be decided by the School Committee, as laid down by the Hon'ble Supreme Court in the decision cited supra.
17. The order does not suffer from any infirmity in the light of the dictum laid down by the Hon'ble Supreme Court and does not warrant any interference. Accordingly, this writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
1.The Secretary, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur-602 105.
2.Secretary & Registrar, Sri Venkateswara Educational and Health Trust, No.1/3A, River View Road, Kotturpuram, Chennai-600 085.
3.The Commissioner Technical Education, Member (ex-officio), Sri Venkateswara College of Engineering, Sardar Patel Road, Guindy, Chennai-600 025.
4.B.Jayalakshmi, M.E., Assistant Professor, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur-602105.
5.K.Janani, M.E., Assistant Professor, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur 602 105