Judgment :- The writ petitioner acquired the qualification of B.Lit. in 1980 and Diploma in teaching Tamil in 1981. He was working in a Matriculation School and he could not get regular appointment in a sanctioned post. He was appointed as Tamil Pandit by the third respondent which is an aided middle school on 12-06-1988. The appointment was also approved by the Educational Authorities. The post of Headmaster fell vacant on 01-06-1993 due to the retirement of the incumbent. One Ramiah was appointed as Headmaster on 29-07-1993. Against that the petitioner field an appeal. The appeal was allowed by the Chief Educational Officer on 01-06-1994. The said Ramiah filed a revision which was allowed 19-01-1993. Against that the petitioner filed W.P.No.1861 of 1995 and obtained stay. Pending the writ petition the said Ramiah reached superannuation and the petitioner was promoted and appointed as Headmaster on 01-09-2001. Therefore, the writ petition was disposed of finally on 12-09-2002. Subsequently, the petitioner’s appointment as Headmaster was approved by the authorities on 17-11-2001. Against that, the fourth respondent filed an appeal, challenging the petitioner’s appointment on the ground that he does not have the requisite qualification. The first respondent herein without giving any opportunity to the petitioner allowed the appeal by his proceedings dated 08-04-2003. Against this, the petitioner filed W.P.No.14066 of 2003. The said writ petition was admitted and stay was granted. The fourth respondent also filed W.P.No.16695 of 2003 for a mandamus directing the respondents for a direction to the respondents to promote him as “Headmaster”. On 05-09-2003, both the writ petitions were taken up together and this Court remanded the matter to the first respondent for deciding the issue after giving the petitioner an opportunity. Thereafter the first respondent passed the impugned order on 17-05-2004 holding that the petitioner was not entitled to be promoted as “Headmaster”. Against this, the present writ petition has been filed. 2. The learned Senior Counsel raised four objections to the impugned order. (1) When the question before the authorities was whether the petitioner was entitled to promotion as “Headmaster”, there was no justification to go into the validity of his appointment as Tamil Pandit. (2) The petitioner had been appointed as Tamil Pandit and had continued to work as such for more than a decade and therefore, that issue cannot be re-opened. (1) When the question before the authorities was whether the petitioner was entitled to promotion as “Headmaster”, there was no justification to go into the validity of his appointment as Tamil Pandit. (2) The petitioner had been appointed as Tamil Pandit and had continued to work as such for more than a decade and therefore, that issue cannot be re-opened. (3) The petitioner possesses the required qualification for being appointed as Tamil Pandit and the qualification mentioned in Annexure V to the Tamil Nadu Recognised Private Schools Regulation Act, 1994 will not apply to the post of Tamil Pandit in a Middle School. (4)The Tamil Nadu Elementary Education Rules, according to which B.Lit., is the qualification for Tamil Pandit will alone apply and the petitioner possesses the said qualification. (5) The Full Bench decision would apply to the case of the petitioner. The learned Government Advocate would support the impugned order. 3. The following decisions were referred to. (1) In SHRI KRISHAN V. THE KURUKSHETRA UNIVERSITY ( AIR 1976 SC 376 ) where a candidate was allowed to write examination rightly or wrongly and when the parties had acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the examination, then by force of the University Statute the University had no power to withdraw the candidature of the candidate. (2) In PUSHPA LATA SAXENA(SMT.) V. CHANCELLOR, AGRA UNIVERSITY (1997 III LLJ Supp. 4), it was held that if a person is appointed to a post erroneously and he is allowed to continue in the post for a long time, he cannot be removed from the said post on the garb of rectification of mistake as the doctrine of acquiescence would apply to such a case. (3) In BUDDHI NATH CHAUDHARY V. ABAHI KUMAR ( 2001 (3) SCC 328 ), the appointment not interfered with on the ground that the candidates acquired requisite experience, if lacking at the time of recruitment, by working on the posts for over a decade. (4) On the side of the respondents reliance was placed on STATE OF ORISSA V. SUKANTI MOHAPATRA (JT 1993 (2) SC 579) wherein it was held that when persons irregularly appointed or regularised on compassionate grounds they cannot dislodge the seniority of regularly appointed persons. 4. The petitioner’s qualifications have already been referred to earlier. (4) On the side of the respondents reliance was placed on STATE OF ORISSA V. SUKANTI MOHAPATRA (JT 1993 (2) SC 579) wherein it was held that when persons irregularly appointed or regularised on compassionate grounds they cannot dislodge the seniority of regularly appointed persons. 4. The petitioner’s qualifications have already been referred to earlier. The additional typed set of papers has been produced, containing copies of the following documents: (1) A communication by the Registrar, University of Madras to the Principal, Rameswaram Devasthana Patasalai, Madurai dated 24-09-1951 showing that as per the Regulation 2(ii)(a) of Chapter LIV Sanskrit and other languages are co-ordinated languages. (2) By proceedings R.O.C.No.1860/E-/51 dated 26-02-1952 stating “Pandits who have passed Vidwan A and Vidwan C (now abolished) have two languages of equal importance and such Vidwans are qualified to teach either language offered by then for course.” (3) The communication of the Director of Public Instruction in L.Dis.1503/02/63 dated 09-05-1963, which states that trained 2-A Vidwans are also eligible for appointment as Tamil Pandits in Secondary Schools in the State. This is repeated in a subsequent communication also. The petitioner has obtained the title of Vidwan 2(a) Sanskrit with Tamil in Oriental Learning from the Madurai University on 08-09-1972. On 05-09-1980, he was given the decree of Bachelor of Tamil Literature from the Madurai-Kamaraj University. On 24-11-1981, the petitioner obtained the Diploma in Teaching of Tamil from the Annamalai University. 5. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 defines a “private school” as a pre-primary, primary, middle or high school [or higher secondary school] or any other institution imparting education or training etc. Therefore, wherever the words “Private Schools” is mentioned in the Act or the Rules it would include a middle school also. The third respondent school is admittedly a middle school. Rule 15 deals with the qualifications, conditions of service of teachers and other persons employed in a private school. 6. Annexure V of the Rules lays down the qualifications for appointment as teachers in private schools(Regulation). In that, Serial No.1 reads as Headmaster,(High Schools). It was therefore contended on behalf of the petitioner that the other qualifications will also relate to high schools. This contention cannot be accepted. 7. As regards “Head Masters”, the qualification that is referred to will apply to Head Master of High Schools. In that, Serial No.1 reads as Headmaster,(High Schools). It was therefore contended on behalf of the petitioner that the other qualifications will also relate to high schools. This contention cannot be accepted. 7. As regards “Head Masters”, the qualification that is referred to will apply to Head Master of High Schools. But as regards the other posts mentioned from serial number (2) downwards it would apply to posts for “private schools” as defined in the Act. This is clear from the Explanation to serial No.8 which is Physical Education. This specifically provides for the qualification that should be possessed by the first physical education teacher in high schools. If Annexure V applies to High Schools, there was no need for the specific mention. Therefore, it cannot be said that in Annexure V applies to High Schools alone. 8. The learned counsel for the fourth respondent submitted that the petitioner had no right to be promoted as “Headmaster” when his appointment as a Tamil Pandit was itself irregular since he did not possesses the qualification. The learned counsel also submitted that after the order of appointment in the earlier writ petition, the petitioner was afforded sufficient opportunity and he also knew that the question to be answered was whether he was qualified to be appointed as Tamil pandit and on the basis of the materials on record the authorities found that he was not qualified. 9. Let us look at the qualifications for Tamil Pandits under various heads: ANNEXURE V 1. Qualifications for appointment as Teachers in private schools(Regulation). 10. The Tamil Nadu Educational Rules, which was affected by various subsequent legislations such as Tamil Nadu Private Schools (Regulation) Act, 1973, Private Schools (Regulation) Rules, 1974, Tamil Nadu Compulsory Elementary Education Act, 1994 and its 1998 Rules, Tamil Nadu Private Colleges (Regulation) Act and Rules and other legislations. If any matter is not covered by those Acts and Rules, the provisions from the Tamil Nadu Educational Rules may be taken as guidance. Rule 13 of the these Rules reads thus: Teacher’s Certificates 13. The Headmaster in every High and Higher Secondary School and atleast as many teachers as there are sections in standards 9 and above should ordinarily possess B.Ed. or B.T. or L.T. .. The minimum qualifications for teachers in Secondary Schools under the scheme shall be as specified in the following schedule:- 14. The Headmaster in every High and Higher Secondary School and atleast as many teachers as there are sections in standards 9 and above should ordinarily possess B.Ed. or B.T. or L.T. .. The minimum qualifications for teachers in Secondary Schools under the scheme shall be as specified in the following schedule:- 14. As per Special Rule for the Tamil Nadu Elementary Educational Subordinate Service:- 15. Annexure V(IV) deals with qualifications for appointment of teachers in Higher Secondary Schools. So distinction is made with regard to higher secondary schools. 16. The learned counsel for the petitioner relies on The Saliar Mahajan Hr.Sec. School V. The Joint Director of Schools (Hr.Sec) etc.(1995 Writ L.R. 277) wherein the Full Bench held that G.O.No.1091, Education dated 15-06-1978 which provided for continuance of Headmasters of Aided School as Headmasters of higher secondary school, framed only non statutory rules governing qualifications and method of appointment of Headmasters, teachers of academic subjects in higher secondary schools and they are only administrative rules insofar as they relate to aided schools and are not statutory rules. The Full Bench also considered G.O.Ms.No.720 dated 28.4.1981 in the preamble to the Government Order, it was stated that the qualifications and other service conditions prescribed in the notification for the post of Headmasters, Teachers of higher secondary standards and Physical Directors in Government Higher Secondary Schools will mutatis mutandis be followed also in aided schools run by local bodies and Government schools under the Adi–dravidar and Tribal Welfare and backward classes departments pending issue of amendments with the relevant rules. This judgment is dated 17.8.1994. The Full Bench also held that the use of the words mutatis mutandis will not mean that all the provisions found in G.O.Ms.No. 720 will be automatically imparted in the case of private schools. This decision cannot help the petitioner. 17. In that case, the Full Bench had to consider the effect of use of words promotion from Class 2 and the service and promotion to Class 1 in the service. The Full Bench held that in the Tamil Nadu Higher Secondary Educational Service in which Rules were framed under Article 309 of the Constitution there is no such constitution of service with reference to Private Schools which take aid from the Government. The Full Bench held that in the Tamil Nadu Higher Secondary Educational Service in which Rules were framed under Article 309 of the Constitution there is no such constitution of service with reference to Private Schools which take aid from the Government. Therefore, the Full Bench held that when the Preamble refers to the applicability of the Rules mutatis mutandis to the aided schools it can only mean that the rules will be applicable with suitable modifications necessary with reference to the aided schools and “hence there is no question of Class 2 service or Class 1 service with reference to the aided schools as no such service had been constituted by the Government.” The Full Bench concluded that the Rules have to be modified suitably in so far s their application to private schools are concerned. “If that test is applied, there can be no difficulty in holding that with regard to Private Schools, there having been no constitution of service by any Rule and there having been no definition of the expression “Teachers in academic subjects and Teachers in languages”, the normal rule that the post of Headmaster has to be filled up by promotion from among the Teachers in subjects and Teachers in languages is clear.” But with regard to the Tamil Pandit Qualification there is no such reference to any service constituted under Article 309 and there is no ambiguity or difficulty or lacuna in applying the qualifications prescribed under Annexure V which is applicable to appointment of teachers in private schools, so there is no reason for us to look elsewhere or to draw aid from other Rules when the Rules framed under the Act are abundantly clear. 18. It is seen from Rule 29 of Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974 that the Appellate Authority with regard to middle schools is the Joint Director of Elementary Education. It is this officer who has considered the appeal filed against the order of the District Elementary Education Officer, Tirunelveli. On 19-04-2004, a personal hearing was given to the concerned parties as seen from Paragraph No. 5 of the impugned order. The contention on behalf of the petitioner that it is not clear from the impugned order why the petitioner has not been found to be qualified to be a Tamil Pandit must be rejected outright. 19. On 19-04-2004, a personal hearing was given to the concerned parties as seen from Paragraph No. 5 of the impugned order. The contention on behalf of the petitioner that it is not clear from the impugned order why the petitioner has not been found to be qualified to be a Tamil Pandit must be rejected outright. 19. Paragraph 5 of the impugned order reads as follows: Paragraph 4 says that the petitioner has not obtained Secondary Grade Teachers’ Training nor the Tamil Pandit Training. The words used are 20. The appellate authority held that the appointment was in violation of Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and 1974. However, the appellate authority took note of the fact that he had been working as a Tamil Pandit for fifteen years in a permanent post and dealt with it as a special case on compassionate ground. In these circumstances, the appellate authority confirmed the earlier order appointing the fourth respondent. While his long service as Tamil Pandit may protect his continuance in the post of Tamil Pandit, the fact that he does not possess the qualification of Tamil Pandit will dis-entitle him from being promoted as Headmaster over the legitimate claim of the fourth respondent. 21. The following Government Order was also produced: In G.O.Ms. No. 400 dated 25.5.2004 in which it is stated that when a permanent vacancy arises in the post of a middle school Headmaster, it shall be filled among senior-most persons working in a Higher Secondary School or in other cadre of qualified teachers, who are qualified as Tamil Pandit. "1. Which vacancies arise in the posts of Headmasters of Middle School (due to the death, retirement and such resignation and due to creation of new posts etc.), such vacancies shall be filled up by the promotion from among B.T. Assistant/Tamil Pandits, appointed prior to 1.6.1988. If no such suitable and qualified persons are available, then it shall be filled up from among the senior-most of the following categories of teachers by drawing a combined seniority list. a. B.Ed Grade teachers appointed in the Middle Schools; b. Tamil Pandits appointed in the Middle Schools; c. Primary School H.M. Qualified for B.Ed or Tamil Pandit." 22. In State of Orissa & Ors V. Sukanti Mohapatra & Ors. (JT 1993 (2) SC 579) "10. a. B.Ed Grade teachers appointed in the Middle Schools; b. Tamil Pandits appointed in the Middle Schools; c. Primary School H.M. Qualified for B.Ed or Tamil Pandit." 22. In State of Orissa & Ors V. Sukanti Mohapatra & Ors. (JT 1993 (2) SC 579) "10. Now even though the tribunal came to the conclusion that Rule 14 did not permit regularisation made under the impugned orders of January 3, 1985 and February 14, 1985, it, having regard to the long service put in by the employees named in the said two orders and on compassionate considerations has supported the regularisation under Article 162 of the Constitution. It has moulded the relief on such considerations. Since that part of the order has not been assailed and since the appellants cannot be worse of by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees. We may also clarify that any benefit derived by the irregular appointees under any interim orders contrary to the relief moulded by the Tribunal shall be adjusted and brought in tune with the said relief..." The impugned order is also almost identical and none of the grounds of challenge made by the petitioner is sustainable under law. 23. In the light of the judgments cited on behalf of the petitioner and the observations of the Supreme Court in the decision relied on behalf of the respondent the recommendation made in the impugned order deal with the petitioner’s appointment as a Tamil Pandit as a special case relaxing the requirements of a Pandit Training Certificate is reiterated. Having worked as a Tamil Pandit for so many years the petitioner does not deserve to be disturbed from that position. However, on that ground he cannot claim to be appointed as a “Headmaster” dislodging the claim of the fourth respondent who possesses all the qualification for being appointed. 24. For the above reasons, the writ petition is dismissed with directions to protect the petitioner’s continuance as Tamil Pandit. No costs. The connected miscellaneous petitions are also dismissed.