JUDGMENT : (Prayer: Writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent in his proceedings in G.O. No.(1D) No.162, Pallikalvi (thoka 2(1) Thurai dated 27.05.2019 receive by me on 18.06.2019 and consequently, direct the respondents to confirm and uphold the promotion of myself as Headmistress made by the fifth respondent on and from 01.10.2008 as per the proceedings of the School Committee approved by the District Elementary Educational Officer in Na.Ka.No.1992/AA2/2011, dated 21.11.2011 and grant such further or other reliefs.) 1. This writ petition has been filed challenging the impugned order passed by the 1st respondent, dated 27.05.2019 and for a consequential direction to the respondents to confirm and uphold the promotion of the petitioner as Head Mistress of the 5th respondent school. 2. The case of the petitioner is that she was working as a BT Assistant in the 5th respondent school from the year 2004 onwards. One K.Shanthi was holding the post of Head Mistress in the 5th respondent school and her retirement fell on 30.09.2008. The school committee of the 5th respondent school started the process of selection to fill up the post of Head Mistress, after the retirement of the said K.Shanthi. The school committee called for eligible candidates and the list was prepared. Totally the names of four candidates were considered. Out of the four candidates, the other three candidates expressed in writing that they are not opting for the post of Headmistress. Therefore, the school committee was left with only the candidature of the petitioner and considering her qualification and experience, the school committee promoted the petitioner as the Head Mistress of the 5th respondent school with effect from 01.10.2008. 3. The resolution appointing the petitioner as the Head Mistress, was sent for approval to the 3rd respondent and the 3rd respondent also approved the appointment by proceedings dated 21.01.2011. 4. The 6th respondent filed an Appeal opposing the promotion of the petitioner to the post of Head Mistress, to the 2nd respondent on 04.01.2012. The 2nd respondent by an order dated 09.03.2012, rejected the Appeal. The 6th respondent filed a further appeal before the 1st respondent on 19.02.2013. It is stated that the 1st respondent passed an order allowing the Appeal even without giving notice to the petitioner. 5. The 2nd respondent by an order dated 09.03.2012, rejected the Appeal. The 6th respondent filed a further appeal before the 1st respondent on 19.02.2013. It is stated that the 1st respondent passed an order allowing the Appeal even without giving notice to the petitioner. 5. This order passed by the 1st respondent became a subject matter of challenge before this Court in WP No.12213 of 2014 and this Court by an order dated 18.08.2017, set aside the order passed by the 1st respondent and remanded the matter back to the 1st respondent by directing the 1st respondent to issue notice to both the petitioner and the 6th respondent and to hear both of them and thereafter, pass orders on merits, within a period of three months. By virtue of this order, the matter was again remanded to the file of the 1st respondent. 6. The 1st respondent after issuing notice to the petitioner and also the 6th respondent and after considering the merits of the case, has passed the impugned order dated 27.05.2019, allowing the appeal filed by the 6th respondent and directing her appointment as the Headmistress of the 5th respondent school. Aggrieved by the same, the present writ petition has been filed before this Court. 7. Mr.Vijay Shankar, learned counsel appearing for the petitioner submitted that as on the date when the vacancy arose i.e., on 01.10.2008, the 6th respondent did not possess the qualification, since she had not completed B.Ed Degree and she completed the B.Ed degree only in the year 2010. Therefore, the 6th respondent was not in the zone of consideration when the selection took place in the year 2008 for promotion to the post of Headmistress. The learned counsel further submitted that the 6th respondent cannot challenge the appointment of the petitioner as Head Mistress, based on the qualification obtained by her at a later point of time. The learned counsel submitted that even though, the 6th respondent is senior to the petitioner, she did not possess the B.Ed qualification in the year 2008 and therefore, she was not considered for promotion to the post of Head Mistress. The learned counsel in order to substantiate his submissions, relied upon two Government Orders. The 1st Government Order that was relied upon, was G.O.Ms.No.400, Education Science and Technology Department, dated 25.05.1995. The learned counsel in order to substantiate his submissions, relied upon two Government Orders. The 1st Government Order that was relied upon, was G.O.Ms.No.400, Education Science and Technology Department, dated 25.05.1995. This Government Order provided for the manner in which a vacancy should be filled up to the post of Middle school Headmaster /Headmistress. The learned counsel submitted that this Government Order specifically stated that the post should be filled up by the senior most person working as Secondary grade teacher with B.Ed qualification. If no such Secondary grade teacher is available, such vacancy can be filled up by appointing a B.Ed teacher. The learned counsel also placed reliance upon G.O.Ms.No.97, School Education Department dated 05.07.2001. This Government order provided that even though five years experience is stipulated by the rules in the cadre of Secondary Grade teacher to be considered for promotion to the post of Headmaster, the said period can be relaxed, if no other candidate possessing the educational qualification is available and further provided that the concerned candidate belongs to the same school. The learned counsel by placing reliance upon this Government Order submitted that even though the petitioner had only four years experience as BT Assistant, since she possessed the necessary educational qualification (B.Ed Degree) and there was no other candidate available, the five years experience stipulated by the rule can be relaxed. 8. The learned counsel in order to substantiate his submissions, relied upon the judgment of the Hon’ble Division Bench of this Court in [A.Rukmani Vs. The Correspondent, Gandhiji Aided Middle School and others] reported in 2003 Writ Law Reporter 359. 9. Mr.K.Venkataramani, learned Senior Counsel appearing on behalf of the 6th respondent submitted that admittedly the 6th respondent was the senior most teacher, who was available during the relevant point of time. She obtained the qualification of B.Ed degree in the year 2010. Therefore, the 6th respondent became eligible to be considered to the post of Head Master/ Headmistress. That apart, the petitioner did not have the qualification to be promoted to the post of Headmistress during the relevant point of time. She obtained the qualification of B.Ed degree in the year 2010. Therefore, the 6th respondent became eligible to be considered to the post of Head Master/ Headmistress. That apart, the petitioner did not have the qualification to be promoted to the post of Headmistress during the relevant point of time. This was taken into consideration by the 1st respondent and the 1st respondent has given elaborate reasons before coming to a conclusion that the petitioner was not eligible to be considered for promotion to the post of Head Mistress in the year 2008, since she did not possess the experience that was stipulated in the Rules. The learned Senior counsel submitted that G.O.Ms.No.97, dated 05.07.2001, cannot take away a mandatory stipulation provided in the rules and it cannot be relied upon to justify a wrong promotion that had taken place in the year 2008. The learned Senior Counsel therefore submitted that there are absolutely no grounds to interfere with the impugned order passed by the 1st respondent. 10. Mrs.V.Annalakshmi, learned Government Advocate appearing on behalf of the respondents 1 to 4 relied upon the detailed Counter Affidavit that has been filed by the 3rd respondent. The learned counsel submitted that the petitioner ought to have satisfied the eligibility criteria with regard to service qualification, wherein the candidate must have five years experience as secondary grade teacher. The learned counsel submitted that without satisfying this criteria, the school committee should not have considered the name of the petitioner for appointment to the post of Head Mistress. The learned counsel further submitted that on the date of approval of the appointment, the 6th respondent was fully qualified for promotion as Head Mistress and therefore, the 6th respondent being a senior most teacher should have been made as the Head Mistress. The learned counsel submitted that if there was no eligible candidate available in the school for being promoted as a Head Mistress, the school management ought to have sought for the permission to fill up the post by way of direct recruitment or it should have waited for the teacher belonging to the same school to acquire the qualification. Without doing so, the petitioner was illegally appointed as Head Mistress in violation of the Rules and therefore, the 1st respondent was right in allowing the appeal filed by the 6th respondent and there are no grounds to interfere with the same. 11. Without doing so, the petitioner was illegally appointed as Head Mistress in violation of the Rules and therefore, the 1st respondent was right in allowing the appeal filed by the 6th respondent and there are no grounds to interfere with the same. 11. The learned counsel appearing on behalf of the 5th respondent school supported the submissions made by the learned counsel for the petitioner and justified the appointment of the petitioner as the Head Mistress. The learned counsel also relied upon the judgment of this Court in WP No.9668 of 2012 dated 25.04.2012, wherein, this Court had upheld the appointment of a middle school Head Master/Head Mistresss, who did not complete five years as a B.T.Assistant, by relying upon G.O.Ms.No.97 dated 05.07.2001. 12. This Court has carefully considered the submissions made on either side and also perused the materials available on record. 13. The qualifications and experience for appointment of teachers in Private schools is governed by Rule 15 r/w Annexure V of the Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974. It provides that in order to appoint a person as a Head Master/Head Mistress of a Middle Schools, the concerned person must possess the following qualifications :- (a) Under Graduation degree (b) Teachers Training Certificate (c) Worked five years as Secondary Grade Teacher, and (d) B.Ed Degree 14. In the present case, admittedly both the petitioner as well as the 6th respondent were not qualified to be promoted and appointed as Head Mistress as on 01.10.2008, when the post fell vacant. The petitioner was not qualified since she did not have the five years experience and the 6th respondent was not qualified since she did not possess the B.Ed Degree. It is also an admitted case that the 6th respondent is senior to the petitioner. It is the case of the petitioner that she was considered for promotion and appointment to the post of Head mistress, inspite of not having the required experience by virtue of fulfilling the educational qualification and by virtue of the exemption granted under G.O.Ms.No.97 dated 05.07.2001, which provides for relaxation of the experience period. This relaxation is provided under clause 3 of the GO, which reads as follows:- “TAMIL” 15.It will also be relevant to extract clause 4 of the said Government Order as under:- “TAMIL” 16. This relaxation is provided under clause 3 of the GO, which reads as follows:- “TAMIL” 15.It will also be relevant to extract clause 4 of the said Government Order as under:- “TAMIL” 16. It is seen from records and also from the impugned order passed by the 1st respondent that the petitioner was working as B.T. Assistant for the period from 26.04.2004 to 31.05.2006 on consolidated pay and she was brought under regular scale of pay only on 01.06.2006. Therefore, the experience of the petitioner can be counted only when she was brought, in the regular time scale of pay and when this is taken into consideration, the petitioner hardly had three years experience as B.T. Assistant teacher. It must also be borne in mind that the petitioner had never worked as a Secondary grade teacher. It is under these circumstances, her promotion and appointment was considered by the school committee on 25.09.2008 and the petitioner was promoted as a Head Mistress only based on her educational qualification without fulfilling the experience stipulated under the Rules. It is also seen from records that when the school management had forwarded the promotion of the petitioner for approval, initially it was returned by the concerned officer on the ground that the petitioner did not fulfill the experience criteria. The files were again forwarded on the ground that the other teachers were not opting for the post. Thereafter, the approval was granted with effect from 26.04.2009. 17. It is true that the 6th respondent did not possess the B.Ed qualification during the crucial date and she had acquired the qualification only in the year 2010. She thereafter made an Appeal to the 2nd respondent questioning the promotion and appointment of the petitioner as Head Mistress on the ground that the petitioner did not possess the qualification and that, she has all the qualifications to be considered for the said post. The 6th respondent is not claiming her right to be appointed as a Head Mistress from the year 2008 and she only claims to be considered for appointment from the time, she fulfilled the requirements. Therefore, it cannot be construed that the 6th respondent is attempting to get into the post of Head Mistress from 2008, by getting a qualification in the year 2010. Only if the 6th respondent had made such a claim, her claim cannot be accepted. Therefore, it cannot be construed that the 6th respondent is attempting to get into the post of Head Mistress from 2008, by getting a qualification in the year 2010. Only if the 6th respondent had made such a claim, her claim cannot be accepted. This has been made clear by the Judgment of the Hon’ble Division Bench that was cited by the learned counsel for the petitioner. This judgment will not have any application in the present case, since the 6th respondent is not claiming for promotion and appointment from the crucial date by means of securing a qualification (B.Ed) at a later point of time. 18. The learned counsel for the petitioner has placed reliance upon the Judgment of the Division Bench of this Court in [The State of Tamil Nadu and others vs. Hindu Middle School] in Manu/TN/3588/2015. It becomes important to consider this decision cited by the learned counsel for the petitioner. 19. The Division Bench of this Court has taken into consideration certain earlier orders that were passed by this Court, wherein this Court was considering the effect of relaxation of the teaching experience as per G.O.Ms.No.97 dated 05.07.2001. Both in the Division Bench Judgment as well as the earlier orders, to which reliance was placed, the concerned teacher was working as a secondary grade teacher and had not fulfilled the experience criteria and those teachers had also given an undertaking to the effect that they will not claim the salary of a Headmaster / Headmistress, till they fulfill the experience qualification. In many of the cases, by the time the file was sent for approval, the concerned teacher had also acquired the five years experience as Secondary grade teacher. 20. The above judgment cited by the learned counsel for the petitioner will not apply to the facts of the present case. In the present case, the petitioner was admittedly a B.T Assistant teacher and she had not functioned even for a single day as a Secondary grade teacher. Even on the day when her appointment was considered for confirmation by the concerned authority, she had not fulfilled the experience criteria. Therefore, the judgment relied upon by the learned counsel for the petitioner will not in any way improve the case of the petitioner. 21. Even on the day when her appointment was considered for confirmation by the concerned authority, she had not fulfilled the experience criteria. Therefore, the judgment relied upon by the learned counsel for the petitioner will not in any way improve the case of the petitioner. 21. The entire attempt of the petitioner to justify the appointment and promotion of the petitioner, is by placing reliance upon G.O.Ms.No.97 dated 05.07.2001. The relevant portions in the Government order has been extracted supra. This Government Order was passed in order to help schools to tide over the situation, where the Head Master / Head Mistress has to be appointed and the school does not possess a teacher having sufficient teaching experience but fulfills the educational qualification. This Government Order obviously cannot over ride the statutory rules under the Tamil Nadu Recognised Private Schools (Regulation) Rules, which prescribes the qualification. Therefore, this Government order cannot be relied upon to justify the appointment of a Head Master / Head Mistress on a permanent basis, wherein, the Headmaster/Head Mistress has not fulfilled the experience criteria that has been stipulated in the statutory rules. If such an interpretation is given, a statutory rule can always be violated by passing a Government Order and it goes against the basic tenets of law. The concerned Government Order in the present case, does not take the character of a statutory rule and therefore, it cannot be used to get over a statutory rule which specifically stipulates the qualification and experience for promotion / appointment of a Head Master / Head Mistress. Useful reliance can be placed on the judgments of the Hon’ble Supreme Court in this regard:- (a) The Hon’ble Supreme Court in [K.Kuppusamy and another Vs. State of Tamil Nadu and others] reported in 1998 8 SCC 469 , has held as follows:- 3. The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule. (b) The Hon’ble Supreme Court in [State of Kerala and others Vs.K.Prasad and another] reported in 2007 7 SCC 140 , has held as follows:- 10. The two Rules, quoted above, lay down a comprehensive procedure for opening of new schools in particular areas; their recognition and up-gradation. It is manifest that a decision in this behalf has to be primarily by the government on an application made for that purpose under Rule 2A. The Rules also lay down the guidelines which are to be taken into consideration for preparing the list in terms of sub rule (1) of Rule 2. On the lists being finalized, after their publication and consideration of objections, if any, the same have to be sent to the government for its approval, with or without modification. Nevertheless the decision by the government whether opening of new school is to be sanctioned or whether an existing school is to be allowed to be upgraded has to be taken on consideration of the matters enumerated in clauses (a) to (e) of Rule 2(1) of the Rules. Similarly, an application for either opening of new school or for up-gradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub rule (4) of Rule 2. Any application received otherwise cannot be considered. In view of such comprehensive procedure laid down in the statute, an application for up-gradation has necessarily to be made and considered strictly in a manner in consonance with the Rules. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Any application received otherwise cannot be considered. In view of such comprehensive procedure laid down in the statute, an application for up-gradation has necessarily to be made and considered strictly in a manner in consonance with the Rules. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any Rule, unless such power exists under the Rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising the power of judicial review the Court is required to see whether the government has departed from such Rules and if so, the action, of the government is liable to be struck down. (c) The Hon’ble Supreme Court in [Punjab Water Supply and Sewerage Board Vs. Ranjodh Singh and others] reported in 2007 2 SCC 491 , has held as follows:- 14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. In A. Umarani vs. Registrar, Cooperative Societies & Ors. [ (2004) 7 SCC 112 ], a Three Judge Bench of this Court has opined : 45. “No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.” It was further held: 49. “It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput).” (d) The Division Bench of this Court in [N.Priyadarshini Vs. “It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput).” (d) The Division Bench of this Court in [N.Priyadarshini Vs. The Secretary to Government and another] reported in 2005 3 LW 101 , has also considered the law on this issue and held as follows:- 27. In this connection, it may be mentioned that according to theory of the eminent jurist Kelsen (the pure theory of law) in every country there is a hierarchy of laws and the general principle is that a law in a higher layer of this hierarchy will prevail over the law in a lower layer of the hierarchy (see Kelsens’s “The General Theory of Law and State”). In our country this hierar chy is as follows: - (i)The Constitution of India. (ii) Statutory law (which may be either Parliamentary law or law made by the State legislature). (iii) Delegated Legislation (which may be in the form of rules made under the statute, regulations made under the statute, etc) (iv) Purely administrative or executive orders. The 1997 Regulations framed by the Medical Council of India (as also those framed by the All India Council for Technical Education and the Dental Council) are norms in the third layer in this hierarchy. On the other hand, the impugned G.O. Ms. No. 184 Higher Education (J2) Department, dated 09.06.2005 is in the 4th layer of the hierarchy. Hence, if there is a conflict between the two, the Regulations will prevail. In our opinion, there is a clear conflict between the two, because the G.O. Ms. No. 184 Higher Education (J2) Department, dated 09.06.2005 has done away with the system of common entrance examination test, although admittedly there are several examining bodies/boards in the State of Tamil Nadu. 28. In Virender Singh Hooda v. State of Harayana, (2004) 12 SCC 588 it was held that executive instructions which are contrary to the rules will be invalid. In paragraph 24 of the aforesaid judgment, the Supreme Court observed: “In law if an executive instruction is contrary to the statutory rules, the rules will prevail and not the executive instructions.” 29. In Virender Singh Hooda v. State of Harayana, (2004) 12 SCC 588 it was held that executive instructions which are contrary to the rules will be invalid. In paragraph 24 of the aforesaid judgment, the Supreme Court observed: “In law if an executive instruction is contrary to the statutory rules, the rules will prevail and not the executive instructions.” 29. In Union of India v. Arun Kumar Roy, AIR 1986 SC 737 (vide paragraph 15), the Supreme Court observed: - “A notification has no statutory force. It cannot override rules statutorily made governing the conditions of service of the employees.” 30. Similarly in Union of India v. Madras Telephone SC & ST Social Welfare Association, (2000) 9 SCC 71 (vide paragraphs 17 & 19) the Supreme Court observed:- “Once the statutory recruitment rules came into force the earlier administrative instructions cannot be adhered to and will have no force” 31. Similarly in Shish Ram v. State of U.P, (1996) 10 SCC 166 (vide paragraph 5), the Supreme Court observed: - “When the statutory rules came to be made increasing their scale of pay and making them eligible for promotion directly to the post of gazetted cadre class II from Assistants, Head Accountants, Stenographers etc. to a pay scale of Rs.500-900, it would be obvious that the executive instructions issued earlier had to yield place to the statutory rules.” The same view has been taken by a Full Bench of the Allahabad High Court in Vijay Singh v. State of U.P., 2005 LIC 505 (vide paragraphs 6 to 11) 22. It is clear from the above judgment that statutory rules cannot over ride express provision of the statute and executive instructions cannot over ride either of the two. In this case, G.O.Ms.No.97, dated 05.07.2001, cannot be allowed to over ride the statutory rule under Rule 15 of Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974 r/w. Annexure V. 23. The Executive power of the State extends to matters with respect to which the legislature of the State has power to make laws. However, the said power cannot be exercised so as to contravene any law relating to the matter or rules having the force of law which are already occupying the field. 24. The Executive power of the State extends to matters with respect to which the legislature of the State has power to make laws. However, the said power cannot be exercised so as to contravene any law relating to the matter or rules having the force of law which are already occupying the field. 24. The 1st respondent while passing the impugned order has taken into consideration the following facts, while allowing the appeal filed by the 6th respondent and the same is extracted hereunder :- “TAMIL” 25. It is clear from the above that the petitioner has not even served a single day as a Secondary grade teacher and therefore, she lacks the service qualification, which prescribes the minimum of five years experience in the cadre of Secondary grade teacher to be considered for appointment to the post of middle schools Head Master / Head Mistress. The petitioner did not even have three years experience as BT Assistant, as on the date when she was considered for promotion and appointment as Headmistress. Even if G.O.Ms.97 dated 05.07.2001 is relied upon, it cannot be read to the extent of negating the requirement of the statutory rules. At the best, it can only be relied upon to tide over a given situation, since the post of headmistress involves administrative decisions. Once a teacher is available with all the qualifications, the said teacher has to be considered for promotion to the post of Head master / Headmistress and the person, who was admittedly made as a headmistress by relying upon G.O.Ms.97 dated 05.07.2001, will have to give way for the fully qualified teacher. This is the only manner in which the statutory rule and G.O.Ms.97 dated 05.07.2001 can be harmoniously construed. 26. The moment the 6th respondent became eligible to be considered, after she completed her B.Ed Degree in the year 2010, the 6th respondent ought to have been appointed as the headmistress of the 5th respondent school and the petitioner ought to have been relieved from her post. It is important to note that the petitioner did not satisfy the experience qualification even on the date when the 6th respondent became fully qualified to be considered for promotion / appointment to the post of headmistress. It is important to note that the petitioner did not satisfy the experience qualification even on the date when the 6th respondent became fully qualified to be considered for promotion / appointment to the post of headmistress. Therefore, looking at the case from any angle, the petitioner is not entitled to continue as a Headmistress, the moment the 6th respondent became eligible to be promoted and appointed as a Headmistress. 27. This Court does not find any ground to interfere with the orders passed by the 1st respondent and the 1st respondent has given convincing reasons for allowing the appeal filed by the 6th respondent and this Court does not find any ground to interfere with the same. 28. In the result, this writ petition is dismissed. No costs. Consequently, all connected miscellaneous petitions are closed.