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2022 DIGILAW 1357 (MAD)

P. Malathi v. Director of School Education

2022-06-10

R.SURESH KUMAR

body2022
ORDER : Prayer : Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the 4th respondent passed in his proceedings Na.Ka.No.3526/B3/2016 dated 1-11-2016 served on the petitioner 21-11-2017 and quash the same and direct the 4th respondent to approve the promotion of the petitioner as P.G.Assistant History in the 5th respondent aided school from 8-8-2016 with salary and other benefits from the said date after adjusting the salary paid as Secondary Grade Teacher. The prayer sought for herein is for a Writ of Certiorarified Mandamus, calling for the records of the 4th respondent passed in his proceedings Na.Ka.No.3526/B3/2016 dated 1-11-2016 served on the petitioner on 21-11-2017 and quash the same and direct the 4th respondent to approve the promotion of the petitioner as P.G. Assistant History in the 5th respondent aided school from 8-8-2016 with salary and other benefits from the said date after adjusting the salary paid as Secondary Grade Teacher. 2. The petitioner was employed as Secondary Grade Teacher in a leave vacancy from 18.08.1987 to 15.10.1987 in Holy Ghost Primary School, Manapad, Tuticorin District, which was a minority aided school. Again the petitioner was appointed in leave vacancies from 07.01.1988 to 03.03.1988, 28.08.1989 to 29.09.1989 in the very same school. She was further appointed in a leave vacancy in St.Theresa Primary School, Karur, which is also a aided minority school from 18.07.1990 to 10.08.1990, 21.08.1990 to 24.09.1990, 09.10.1990 to 07.11.1990, 08.11.1990 to 10.12.1990. Again the petitioner was appointed in Holy Ghost Primary School, Manapad from 10.03.1992 to 31.03.1992. The petitioner was further appointed in a leave vacancy from 12.06.1996 to 09.09.1996 in St.Joseph's Girls Higher Secondary School, Choolai, Chennai and from 21.11.1997 to 31.01.1998 in Munusamy Mudaliar Primary School, Netappakkam, Purasaiwalkam, Chennai-7. In all the said leave vacancies period, she was paid salary from the Government funds as the schools where she was working in leave vacancies, were fully aided schools. 3. When that being so, in the 5th respondent School, which was also a Private Aided school, a vacancy arose in MBC roster in Secondary Grade for which the Management called for list from the employment exchange after getting permission to fill up the vacancy. The petitioner's name was sponsored on 05.12.1997 for MBC vacancy. 4. The School committee of the 5th respondent selected and appointed the petitioner from 02.02.1998. The petitioner's name was sponsored on 05.12.1997 for MBC vacancy. 4. The School committee of the 5th respondent selected and appointed the petitioner from 02.02.1998. The said appointment was approved by the competent authority by order dated 04.08.1998 with effect from 02.02.1998 and thereafter she has been paid the salary from the said date and the petitioner became a Selection Grade-Secondary Grade Teacher from 02.02.2008. 5. In the meanwhile, the petitioner with the permission of the concerned authorities completed B.A. (History) course through correspondence at Madras University and passed the B.A. (History) in 2nd class in May 1998. After joining the school, the petitioner got permission from the 5th respondent school and joined M.A. (History) and passed the same in 2nd class in October 2000. Again the petitioner got permission to join B. Ed., course and passed the same in April 2009. Thereafter, because of the additional qualifications acquired by the petitioner in order to get incentive increments, the proposal was submitted by the 5th respondent School and that was considered and sanctioned by the competent authorities. Accordingly, the incentive increment has also been sanctioned to the petitioner for her additional educational qualifications, as stated supra. 6. Since after completion of ten years, the petitioner was considered for grant of Selection Grade, that was also granted in the year 2009. 7. When that being the position, vacancy arose in the 5th respondent school to the post of PG Assistant (History) with effect from 01.06.2016, because of the erstwhile incumbent one K.Tamizharasi, PG Assistant (History) retired on 31.05.2016. 8. In order to fill up the said post i.e. P.G. Assistant (History), the 5th respondent school committee after getting necessary permission from the respondents, searched for suitable candidates i.e. in house candidates from the same school itself, where the only qualified candidate at that time was one R.Lakshmi. However, the said candidate has expressed her willingness not to apply for the post of P.G. Assistant (History). In this regard, the said teacher had given a letter dated 31.07.2016 and it was considered and accepted by the school committee in its resolution dated 08.08.2016. 9. Pursuant to the said resolution passed by the 5th respondent School committee, a proposal was sent after appointing by way of promotion, the petitioner to the P.G.Assistant (History), which was available in the 5th respondent school to the official respondents for necessary approval. 10. 9. Pursuant to the said resolution passed by the 5th respondent School committee, a proposal was sent after appointing by way of promotion, the petitioner to the P.G.Assistant (History), which was available in the 5th respondent school to the official respondents for necessary approval. 10. The said proposal sent by the School Committee dated 19.08.2016 having been considered was rejected by the 4th respondent by order dated 01.11.2016. Challenging the same, the present writ petition has been filed. 11. Heard Mr.P.Ebenezar Paul, learned counsel appearing for the petitioner, who would submit that, two reasons were stated in the impugned order of the 4th respondent. The first reason is that, when there were two other eligible senior B.T. Assistants available in the 5th respondent school, without giving promotion to anyone of them, suppressing their availability, the school management selected and appointed the petitioner in the P.G. Assistant post and therefore, it is in violation of the rule. 12. Secondly, the feeder category for the promotion to the post of P.G. Assistant is the B.T. Assistant and admittedly, the petitioner was working only as Selection Grade-Secondary Grade Teacher and it is not a feeder category and therefore such a promotion given to the petitioner is also given violating the rule concerned and therefore, for these two reasons, the appointment given to the petitioner by way of promotion to the post of P.G. Assistant (History) cannot be approved and accordingly the proposal was rejected. 13. In this context, the learned counsel for the petitioner points out that the relevant rule, which they quoted in the impugned order is Rule 15 of the Tamil Nadu Recognised Private Schools (Regulations) Rules, 1974, which was made under the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 (in short, 'the Rules and the Act'). In the sub rule (i) to Rule 15(4) speaks about the promotion, which says that promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 14. Clause (ii)(a) of Sub-Rule 4 of Rule 15 of the Rules, further states that if no qualified and suitable candidate is available by method (i) above, other persons employed in that school, provided they are fully qualified to hold the post of teachers, can be appointed. 15. 14. Clause (ii)(a) of Sub-Rule 4 of Rule 15 of the Rules, further states that if no qualified and suitable candidate is available by method (i) above, other persons employed in that school, provided they are fully qualified to hold the post of teachers, can be appointed. 15. Therefore, invoking Rule 15(4)(ii)(a), the school management has selected and appointed the petitioner for the post of P.G. Assistant (History). The reason for selecting the petitioner also has been explained in the resolution passed in the 5th respondent school Committee, in this regard, where they have stated that one eligible candidate R. Lakshmi has relinquished her promotional avenue and apart from her there is no suitable candidate available. 16. Therefore, the merit and ability since having provided as per the rule, seniority cannot be the only criteria and assuming that, if any senior person available in the school, if such person does not have the merit and ability suitable to hold the post for which, he has to be promoted, then, such a senior person can also be over turned and the available suitable candidate with merit and ability can be selected as suggested in sub rule 4 (ii)(a) of Rule 15. 17. Accordingly, the petitioner's merit and ability was considered because of the qualifications she has already acquired and she has been working in that school as Selection Grade Secondary Grade Teacher, the petitioner's candidature, based on merit and ability was selected and accordingly, the promotion was given to the petitioner and hence the reasons cited i.e., both the reasons stated in the impugned order are totally untenable and therefore, on that ground, the impugned order is liable to be interfere with. 18. Per contra, Mr. J.C. Durai Raj, learned Additional Government Pleader appearing on behalf of the respondents by relying upon the counter affidavit filed on behalf of the official respondents, would contend that, the post of PG Assistant History, for which the petitioner got promoted and appointed, is a promotional post and that should be done only in accordance with Rule 15, which states that promotion shall be made on merit and ability and seniority may be considered only when merit and ability are approximately equal. Here, merit and ability means the qualification. 19. Here, merit and ability means the qualification. 19. In this context, it is to be noted that in between PG Assistant and Secondary Grade Category, there is a category called B.T. Assistant category, which was naturally, shall be the feeder category for the post of PG Assistant. 20. Here, in the case in hand, according to the learned Additional Government Pleader, there were two teachers working in school at that time as B.T. Assistants and they were also qualified to be promoted as P.G. Assistant History. 21. While that being so, any one of the two should have been selected and appointed and assuming that one among them relinquished, the next candidate should be given preference than the petitioner. Therefore, the preference given to the petitioner by side lining the senior with equal qualification is against Rule 15(4) and therefore, on that ground, the appointment made to the petitioner was against the rule and therefore, the rejection of the 4th respondent through the impugned order against such appointment is fully justifiable and sustainable. 22. I have considered the said rival submission made by the learned counsel appearing for the parties and perused the materials placed before this Court. 23. The two reasons cited in the impugned order have already been discussed. In respect of the first reason that there were two people well qualified, who are admittedly senior than the petitioner were overlooked by the 5th respondent Management is concerned, this Court finds that in the very resolution passed by the 5th respondent school itself it has been stated that one among the two, Mrs.Lakshmi has given the letter relinquishing her promotional avenue. Therefore, one among the two need not be considered for any such promotion. 24. Insofar as the other candidate is concerned, the fact remains that whether she was willing to get promotion or not is not before this Court. So far, there has been no hue and cry from the said candidate and she has not come forward, so far, she has not seemed to have agitated the issue, if at all she felt aggrieved because of the promotion given to the petitioner. 25. So far, there has been no hue and cry from the said candidate and she has not come forward, so far, she has not seemed to have agitated the issue, if at all she felt aggrieved because of the promotion given to the petitioner. 25. Be that as it may, if we apply merit of Rule 15(4) in the present case, the language used in 15(4)(i) is that the merit and ability is the ground on which promotion shall be given, seniority being considered only when merit and ability are approximately equal. The word merit and ability will have major role and person's caliber and merit and ability can be weighed by the employer, here, it is the school management or school committee, based on the past performance of the individual concerned. 26. In this context, under the rules since the school committee is the authority to make the selection based on the merit and ability, we cannot state that such merit and ability has been given a go-by. 27. Merely, because one among the two, namely H.Usha was senior to the petitioner because she was holding the post of B.T.Assistant, she would not be entitled to, in view of the embargo to be in sub section (i) clause 15(4), which states that promotion shall be made on grounds of merit and ability. Therefore, the primacy will be merit and ability and the seniority will be third one or third consideration and that too, if the merit and ability is equal, then only the seniority will come to play. 28. Here in the case in hand, as per selection made by the school committee, which is reflected in the resolution itself, makes it clear that there is no suitable meritorious candidate with ability available in the school. Therefore, the school has decided to chosen the petitioner, she is already qualified and she would be the proper meritorious candidate with ability and that has been weighed and decided by the school committee by invoking clause (iii) of Section 15(4) of the Act. 29. Therefore, this Court finds that the way in which the selection was made even for the promoted post of P.G.Assistant (History) in the 5th respondent as reflected through the records, in the considered opinion of this Court, is strictly in consonance with the Rules. 29. Therefore, this Court finds that the way in which the selection was made even for the promoted post of P.G.Assistant (History) in the 5th respondent as reflected through the records, in the considered opinion of this Court, is strictly in consonance with the Rules. Therefore, the said ground stated by the 4th respondent is thoroughly unjustifiable and on that ground, the impugned order can be interfered with. 30. Therefore, this Court feels that the impugned order could not sustain in the legal scrutiny and hence, it is liable to be set aside. Accordingly, it is set aside. 31. In the result, the writ petition is allowed and it is made clear that consequent upon the allowing of the writ petition, it is needless to mention that the petitioner is entitled to get approval for the post of P.G. Assistant (History) on the date of appointment in the year 2016 and also she would be eligible to get the difference of salary between the secondary grade salary, which is currently being paid to her and the P.G. Assistant salary and the arrears shall be calculated and paid to the petitioner and the P.G.Assistant salary shall continue to be paid to the petitioner. 32. However, it is brought to the notice of this Court by the learned counsel appearing for the 5th respondent school that, at the time of selection and appointment of the petitioner, the post of P.G.Assistant (History) was available in the 5th respondent school and subsequently, it has been converted into P.G.Assistant (Geography). Therefore, in that regard, until the date of change of nomenclature the petitioner shall hold the post of P.G.Assistant (History) and thereafter, the petitioner shall hold the post of P.G.Assistant (Geography) and accordingly, she would be eligible and entitled to get service benefits. 33. With these observations and directions, this writ petition is allowed. No costs.