(Prayer: Writ Appeal filed under Clause 15 of Letters Patent praying to set aside the order passed in W.P.(MD)No.1101 of 2007 dated 29.03.2012 and allow the appeal with consequential and service benefits to the appellant with effect from 01.06.2005.
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari calling for the records of the Third Respondent appointing the Fourth Respondent as Headmistress vide appointment order dated 14.03.2007 and consequential order of the second respondent granting temporary approval in O.Mu.No. 3340/A3/07, dated 31.05.2007, quash the same and direct the third respondent to promote the petitioner as Headmistress on the basis of Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulations) Rules, 1974.)
Nooty.Ramamohana Rao, J.
1. This in-house appeal is preferred by the writ petitioner who sought for quashing the order passed on 03.01.2007 by the Secretary of the Hindu Nadar Middle School, Panayur, Thoothukudi District. Since the said writ petition has been dismissed by the judgment rendered on 29th March, 2012, this appeal is preferred.
2. The case of the writ petitioner/appellant is that she joined the service of the Hindu Nadar Middle School at Panayur, which is an aided institution, in the year 1984, as a Secondary Grade Teacher. The writ petitioner/appellant possesses the qualifications of M.A., and M.Ed. It is her assertion that she was the senior most teaching member of the school. On 31st January, 2005, the incumbent of the post of the Headmaster has retired from service on attaining the age of superannuation and thus, a vacancy has occurred on 1st February, 2005. The writ petitioner/appellant, being the senior most teacher, has filed earlier writ petition in W.P.(MD) No.6380 of 2005 seeking directions to the management of the school to consider her case for promotion as Headmistress of the school. On 19th July, 2005, a direction was issued by this Court to the School to consider the case of the writ petitioner/appellant for promotion. The District Elementary Educational Officer has communicated on 11.08.2005 that the writ petitioner/appellant is otherwise qualified for consideration of promotion as Headmistress of the school. Based on this communication, one more writ petition in W.P.(MD)No.8471 of 2005 was filed by this very writ petitioner/appellant which writ petition was dismissed by this Court. Then the matter was carried in writ appeal in W.A.(MD) No.117 of 2006 which was allowed on 25th July, 2006, directing the third respondent school to consider the orders of the District Elementary Educational Officer dated 11.08.2005 whereby and whereunder, the writ petitioner/appellant was declared as otherwise qualified to hold the post of Headmistress. The school management has preferred a review application in Rev.Aplc.(MD).No.38 of 2006 therein. In that review application, a detailed order was passed on 30th October, 2006, by which the writ appeal of the writ petitioner/appellant was dismissed. While dismissing the writ appeal, a further direction was issued to consider the case of the writ petitioner/appellant in accordance with Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Hence, the writ petitioner/appellant was called for an interview on 17.12.2006 and subsequently, the writ petitioner/appellant was directed to produce the certificates regarding her educational qualifications. The school management passed the impugned order on 03rd January, 2007, rejecting the claim of the writ petitioner/appellant for promotion as the Headmistress of the school on the ground that she was not found suitable for such promotion. It is this order dated 03rd January, 2007, of the management of the school which gave rise to the present writ petition from out of which this Writ Appeal arise.
3. The learned counsel for the writ petitioner/appellant Mrs.Narmadha Sampath, has strenuously contended that the writ petitioner/appellant is the senior most teacher in the school, having joined the said school as Secondary Grade Teacher in the year 1984. It is out of a vengeful attitude adopted by the management of the school towards writ petitioner/appellant, her right for promotion as the Headmistress of the school has been unjustly denied.
4. Per contra, it was contended by Mr.G.Prabhu Rajadurai, learned counsel appearing for the management of the school that the suitability of the candidate for promotion has got to be assessed and for the purpose of ascertaining the suitability of the candidate concerned, the ability of the individual concerned to be a Team Leader on one hand, guide the rest of the teachers and non-teachers properly and carefully and above all, the individual's ability to carefully carry forward the policies pursued by the school management for securing an over all growth of the students of the institution concerned, are required to be ascertained. According to Mr.G.Prabhu Rajadurai, learned counsel for the management, if there is a mistrust amongst the members of the school Management Committee and the headmistress of the institution, no progress worth the mention would be achieved and hence, the suitability of the individual has to be tested from that perspective as well.
5. The learned Single Judge has dismissed the writ petition agreeing with the contention that suitability of the candidate to be promoted is the most important feature of the selections and in the meantime, following the procedure, the school management has filled up the post of Headmistress by inviting applications from open market, as no internal candidate is available for such promotion. Accordingly, the fourth respondent came to be appointed as Headmistress of the school.
6. In exercise of the power available under Section 56 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, the Governor of Tamil Nadu framed the Tamil Nadu Recognised Private School (Regulation) Rules, 1974. Rule 15 dealt with the qualifications, conditions of service of teachers and other persons. Sub-Rule (1) thereof stipulated that the number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by the Director of School Education, from time to time, with reference to the academic requirements teacher-pupil ration and overall financial considerations. Sub Rule (4) thereof reads as under:
"Rule 15: Qualifications, conditions of service of teachers and other persons:
(4) (i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
(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) If no qualified and suitable candidate is available by method
(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, Teachers' 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.
(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.
7. The above rule position makes it clear that promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are found approximately equal amongst the competing candidates. This pre-supposes that a committee has to make assessment of the suitability of the individual for securing the necessary promotion as headmistress of the school. It is true that there are no further guidelines available detailing the standards for the purpose of evaluating the suitability of any candidate for promotion and in the process of making an assessment of the comparative merit of the candidates, what objective parameters have to be taken into account and consideration, are also not spelt out anywhere. Only in the event no qualified and suitable candidate being available in the school, the appointment of other persons employed in that very school or the appointment of teachers from any other school shall be resorted to. In the instant case, the school management, after making an assessment of the suitability of the writ petitioner/appellant for promotion as Headmistress, have resorted to inviting applications from persons employed in other schools. Virtually, the competing claims of the writ petitioner/appellant on one hand and unofficial respondent on the other hand was not carried out at any time. At the first instance, the candidature of the writ petitioner/appellant was not taken up for consideration for promotion, but it was taken up pursuant to a direction of this Court.
8. In the instant case, the contention canvassed by Mr.G.Prabhu Rajadurai that the suitability of the candidate depends upon various relevant factors, may not be disputed seriously. But however, in the process of making an assessment of the suitability of the candidates seriously, subjective satisfaction should not be resorted to, but instead, it should be based on an objective assessment of the suitability of the candidates and for that purpose, guiding factors for assessing the suitability of the candidates, have to be drawn first. Then the candidates are required to be judged on that scale. The reasons assigned by the management of the school for arriving at the conclusion that the writ petitioner/appellant was not suitable for promotion as Headmistress of the school, lacks a serious application of mind on the part of the school management. It was alleged against the writ petitioner/appellant that the factum of her possessing the necessary educational qualifications is doubted. It was also further alleged that the qualifications have been acquired by the writ petitioner / appellant teacher without obtaining prior permission from the management or without obtaining the leave of absence. We are afraid that, these reasons cannot carry much merit or conviction. When we have perused the copy of the service register of the writ petitioner / appellant, we realised that the qualifications possessed by her have already been recorded in the said service register and the said service register was also periodically inspected by the Government departmental agencies who have signed in proof of verification of the contents of the service register. If a teacher produces her educational qualifications once before and an entry is also made to that effect in the service register, the need to produce the copy of the same educational certificates every time ceases to have any serious effect. Once the qualifications are entered in the service register and the said contents of the service register are verified, it presupposes that the writ petitioner / appellant possesses the necessary qualifications to be considered for promotion. The other two reasons as to how the writ petitioner / appellant secured the qualifications, cannot be made a subject matter of scrutiny for the purpose of making the assessment about her promotion as the Headmistress of the school at this distant point of time. For the aforementioned reasons, we are of the opinion that the decision arrived at by the management with regard to the writ petitioner / appellant lacking the necessary qualifications and suitability for promotion, is not arrived at after making a fair and/or impartial assessment of the same.
9. It was then contended by Mr.G.Prabhu Rajadurai that the teacher concerned was not properly coordinating and liaisoning with the management committee or the educational agency itself and when once she is not in a position to coordinate properly, the writ petitioner / appellant could not be able to carry on the functions of the school Headmistress carefully enough to carry the institution forward. It is worthy to note that in what respect the failing of the writ petitioner / appellant, if any, in this regard has come to their notice has not been spelt out anywhere. This apart, the right to choose a particular candidate to be the Headmaster or the Headmistress of a school, insofar as non-minority educational institutions are concerned, is a Constitutional right, but the same is not available for discarding the internal candidates of a non-minority educational institutions. Minority educational institutions having been granted freedom to administer educational institutions, as a fundamental right, necessary freedom has been left to choose a correct person of their choice to be the Headmaster of the school. In the absence of any other fundamental right or any statutory right, a non-minority educational institution cannot pick and choose the candidates in a similar fashion.
10. For the failure to make a proper assessment of the suitability of the writ petitioner/appellant, this Writ Appeal deserves to be allowed. In normal circumstances, upon allowing a writ appeal, we would have to remand the matter back, for consideration afresh the case of the writ petitioner / appellant, to the management of the school. But, however, upon rejection of the candidature of the writ petitioner / appellant the school management sought for the approval of the competent authority to go for consideration of the case of appointment of a qualified teacher from any other school. Such a permission was accorded and thereafter an advertisement was taken out, pursuant to which the unofficial respondent herein came to be selected and appointed as Headmistress of the school. She has been discharging the functions of the post of Headmistress ever since then, for the past nearly ten years.
11. Mr.G.R.Swaminathan, learned counsel appearing on behalf of the unofficial respondent No.4 would contend that no error has been committed by the management in seeking approval from the competent authority for filling up the post of Headmistress of the institution by inviting applications from suitable persons employed in other schools and thereafter, in selecting the unofficial respondent. It is true that the approval from the competent authority has been obtained before making such a recruitment by scouting for the talent available in the other schools. Hence, the procedure prescribed, may have been followed carefully.
12. If the writ petition instituted by the writ petitioner is to be allowed, the matter will have to go back to the management of the school for consideration afresh, the merit of the writ petitioner vis-a-vis any other teacher working in the school concerned. But however, when once a kind of open recruitment is resorted to and candidates working in other schools were invited to respond and when one such individual has been selected, having been drawn from some other school, now, by remanding the matter back to the school for consideration afresh the case of the writ petitioner / appellant would not serve any meaning or purpose in a substantive manner. This apart, the teacher selected and appointed as the Headmistress of the school was working elsewhere and hence, resigned to that post and took up the present assignment. Since the said teacher was serving in a different management School, no lien of her is retained in the former school to enable her to go back and join. Thus, grave hardship would arise insofar as the unofficial respondent is concerned. Though a ready-made solution is offered by the learned counsel for the petitioner that the unofficial respondent shall be deemed to be appointed as a school assistant by treating the unofficial respondent to have been appointed in the place of the writ petitioner / appellant in this very school, we are afraid that such an offer cannot be accepted, for, no approval for filling up a teacher post in the school is obtained from the competent authority and secondly, the vacancy arising out of promotion of the writ petitioner/appellant, has not been thrown open to the other equally suitable or qualified candidates, whereas the post thrown open is that of the Headmistress of the institution. Hence, without facing selection as a School Assistant, the unofficial respondent cannot be treated to have been recruited against the resultant vacancy arising out of promotion of the writ petitioner as Head Mistress.
13. Keeping in view the long pendency of the litigation amongst the parties, we have suggested to the management of the school to consider the writ petitioner / appellant to have been treated/deemed to have been promoted notionally to the post of Headmistress of the school with effect from the date on which the unofficial respondent was so appointed, particularly viewed in the backdrop that the writ petitioner / appellant is left hardly with 6/7 months of service for her eventual superannuation. We also proposed the school management to bear the differential amount to be paid from out of their own resources. Considering the merit behind our suggestion, the management has agreed, in principle, to treat the writ petitioner / appellant to have been promoted as Headmistress of the school on notional basis without disturbing the unofficial respondent of such a position. The management also agreed for payment of differential amount between what she has already drawn and what she could have possible drawn if only she was promoted, with effect from the date on which the unofficial respondent was so appointed as Headmistress. According to the management, the arrears would come to the order of Rs.1.35 lakhs. They expressed their desire and willingness to pay a consolidated amount of Rs.1,00,000/- (Rupees one lakh only) instead, to the writ petitioner/appellant. But, however, the writ petitioner / appellant was not willing to accept any such consolidated payment and instead, she wanted to work out the actual arrears for the whole period and take a decision to take it or leave it. We only hope that without much acrimony, the writ petitioner / appellant on one hand and the school management on the other, would work out a happy and satisfactory solution with regard to the quantum of differential amount to be paid to the writ petitioner / appellant.
14. The Writ Appeal, therefore, stands allowed, declaring that the decision of the school management that the writ petitioner / appellant is not suitable for promotion as Headmistress of the schoo,l as not sustainable. The writ petitioner / appellant shall be treated to have been notionally promoted as the Headmistress of the school and she would be entitled to seek her terminal benefits on that basis from the department. At the same time, the appointment of the unofficial respondent / Headmistress of the school is left undisturbed, as the said individual is not at fault in any respect and further there is no lien available to her to enable her to go back to her former employment. Thus keeping all these above factors, we allow the Writ Appeal but the writ petition challenging the selection and appointment of the unofficial respondent stands disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.
15. Mr.G.Prabhu Rajadurai, learned counsel for the third respondent would suggestthat the arrears payable to the writ petitioner / appellant would be paid on monthlyinstallment basis. Having regard to the fact that the educational institution itself is hailingfrom a rural area and is also struggling itself we concede to the request for payment ofdifferential amount in monthly instalment basis, but the same shall be cleared before theend of the eventual retirement of the writ petitioner / appellant.