Madras High Court

V.Panchavarnam vs K.Balasubramanian on 1 February, 2023

                                                                             W.A(MD)No.33 of 2013


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 01.02.2023

                                                     CORAM :

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
                                                     and
                                   THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                              W.A(MD)No.33 of 2013


                     V.Panchavarnam                                   .. Appellant / Petitioner


                                                        Vs.

                     1.K.Balasubramanian,
                     Headmaster,
                     Kumaran Middle School,
                     Ramanathapuram,
                     Ramanathapuram District.

                     2.The Secretary,
                     Kumaran Middle School,
                     Ramanathapuram,
                     Ramanathapuram District.

                     3.The District Elementary Educational Officer,
                     Ramanathapuram,
                     Ramanathapuram District.                       .. Respondents / Respondents




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                     Page 1 of 11



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                                                                                    W.A(MD)No.33 of 2013


                     PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent Act,

                     against the order, dated 14.12.2012, made in W.P(MD)No.14128 of 2003.



                                        For Appellant        : Mr.R.Senthilkumar


                                        For Respondents      : Mr.M.Jerin Mathiew
                                                               For R1 & R2

                                                             : Mr.J.Ashok
                                                               Additional Government Pleader
                                                               For R3


                                                          JUDGMENT

DR.G.JAYACHANDRAN, J.

and SUNDER MOHAN, J.

The appeal is filed by the unsuccessful writ petitoner, who sought for

the notional promotion as Headmaster in the Kumaran Middle School,

Ramanathapuram, run by the second respondent.

2. The case of the appellant is that he was appointed as Physical

Education teacher in the second respondent school on 16.10.1973. He had

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all required qualifications to be promoted as Headmaster of that school

when vacancy fell. However, the management instead of scrupulously

following the provisions of Rule 15(4) of the Tamilnadu Recognised Private

Schools (Regulation) Rules, 1974, appointed the first respondent as

Headmaster after conducting a mock interview. The management was

brought to notice about their attempt to violate Rule 15(4). However, they

went ahead with the selection process and appointed the first respondent

and the same was approved by the third respondent vide proceedings dated

26.09.2003. Hence, writ of certiorarified mandamus filed to call for the

records and quash the proceedings of the third respondent dated 26.09.2003.

Pending writ petition, the petitioner attained superannuation. The learned

Single Judge, after considering the averment made in the affidavit filed in

support of the writ petition and the counter filed by the management found

that the management, after passing a resolution dated 16.04.2003 to go

ahead with the selection process, inviting applications soon after the

retirement of one Manickam, who retired as Headmaster on attaining

superannuation on 31.03.2003 also thought fit that in addition to the

petitioner, who was serving as Physical Education Teacher in their school,

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they could invite applications from employment exchange and conduct

interview consisting of educationists and select one among them as

Headmaster on merits, pursuant to which the petitioner has also participated

in the interview but not selected, dismissed on the ground that it is not an

add and fast Rule that the qualified candidate available in the institute to be

promoted as Headmaster since the post is very sensitive, the management

can go for the candidate who are more suitable for the post. As far as the

present case is concerned since the challenge itself is not against the

selection notification or appointment of the first respondent but the

subsequent order of approval issued by the third respondent ratifying the

appointment of the first respondent, the writ petition is not sustainable.

Further, the learned Single Judge has also taken note of pendency of the

disciplinary proceedings against the writ petitioner which has disentitled

him for considering to the post of Headmaster. As far as the mandate under

Rule 15(4) of the Tamilnadu Recognised Private Schools (Regulation)

Rules, 1974, the learned Single Judge has taken note of the resolution

passed by the school committee on 01.03.2003 and the prior approval

obtained by the management from the Education Department to go ahead

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with the interview process inviting applications from the eligible candidates.

Interpreting Rule 15(4) and the object behind the said Rule, the learned

Single Judge has held that the purpose of Rule 15(4) is to give priority to

the inhouse candidate and they are not denied the opportunity of getting

promotion and as far as in this case is concerned the writ petitioner has also

called to participate in the interview. Therefore he cannot challenge the

selection process as violation of Rule 15(4). According to the learned Single

Judge, it is not technical flaw which vitiated the process of selection.

Further, the learned Single Judge has also taken note of the dictum laid by

the Hon'ble Supreme Court in N.Ammad vs. Manager, Emjay High School,

reported in AIR 1999 SC 50, wherein the importance of the post of

Headmaster been emphasised and same cannot be filled by person, who is

less qualified when better qualified person is available. Therefore, the

management of the School should be given wide freedom to choose person

for holding such a key post subject to course of restriction regarding the

qualification prescribed by the State. The judgment of the learned Single

Judge is challenged on the ground that participation in the interview cannot

act as an estoppel against the writ petitioner since there cannot be estoppel

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against the writ petitioner while Rule 15(4) categorically show that

management cannot go for candidates outside the institution if person

qualified for the promotional post is available and even after making a clear

representation to consider his candidature by a representation dated

23.04.2003 and a copy marked to all the authorities in School Education

Department, the appointment of the first respondent as Headmaster in

contrast to the Rule is vitiated by artibrating. The learned counsel would

also submit that since the writ petitioner/appellant has attained

superannuation, notional promotion may be given to him with the financial

benefits.

3. The learned Additional Government Pleader appearing for the

State would submit that the writ appeal is unsustainable not only for the

reasons stated by the learned Single Judge for dismissing the writ petition

but also for not exercising the right of statutory appeal provided under the

Act and for non challenging the promotion granted to the management to go

for interview to select candidate to the post of Headmaster.

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4. The learned counsel appearing for the management/respondents 1

&2 listing out the proceedings initiated against the appellant and cited it as a

disqualification for him to hold the post of Headmaster which prompted the

management to seek better candidate, submitted that the management

cannot be forced with a substandard person to head the institute. He also

would submit that Rule 15(4) of the Tamilnadu Recognised Private Schools

(Regulation) Rules, 1974, does not put embargo on the management to

search for a better and suitable candidate if the candidate available in the

School is not up to the expectation. He would read the Rule 15(4) (iii)

which says that if no qualified and suitable candidate is available by method

(i) & (ii) above, appointment on other persons either from other school or

through direct recruitment is permitted.

5. For convenient sake Rule 15(4) is extracted here:

“Rule 15(4) (i) Promotion shall be made on grounds of

merit and ability seniority being considered only when

merit and ability are approximately equal.

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(ii) Appointments to the various categories of teachers shall be made by the following methods:-

(i) Promotion among the qualified teachers in that school;

(ii) Promotion from among qualified vocational instructors in that school;

(iii) If no qualified and suitable candidate is available by method (i) and (ii) above,-

(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers;

(b) Appointment of teachers from any other school;

(c) Direct recruitment.” In the case of appointment from any other school or by direct recruitment the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teacher Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this Rule.

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(d) Appointment to the post of Headmaster of Higher Secondary School shall be made by the method specified in clause (ii) either from the category of Headmasters of High Schools or Teachers' Training Institutes or from the category of Post-Graduate Assistants in academic subjects or Post-Graduate Assistants in Languages provided they possess the prescribed qualifications.”

6. On cumulative appreciation of the rival submissions, this Court

finds that the appellant herein though was senior at that point of time, in the

opinion of the school management he was not suitable for the post of

Headmaster. Therefore, after obtaining due permission from the school

authority, had proceeded with the selection process and had selected the

first respondent. The appellant, who claims to be aggrieved by the said

appointment has not preferred any appeal to the Chief Education Officer,

who is the appellate authority in case of any violation of Rule 15 of the

Tamilnadu Recognised Private Schools (Regulation) Rules, 1974. The

appellant has also not chosen to challenge the appointment order as rightly

pointed out by the learned Single Judge. The approval of the appointment

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