C. Calastine vs The Director of School Education and Others

A.K. Rajan, J.—The petitioner filed the writ petition praying to issue a writ of Certiorarified Mandamus to call for the records of the order in

No.EDN/K/VVC/277-17/2000 dated 28.06.2000 on the file of the fourth respondent to quash the same and to direct the respondents to appoint

the petitioner as graduate teacher in the 5th respondent school.

The brief facts that are necessary for the disposal of the writ petition are as follows:

The writ petitioner was appointed as Graduate Teacher in the 5th respondent school from the year 1996. However being paid under self financing

scheme. One Mr. Crusaiya who was the Head Master in the 5th respondent Middle School retired from service pm 31.05.2000; in his place one

C. Antony cruse ,Tamil Pandit of the 5th respondent school has been promoted and appointed as Head Master; as such one vacancy for graduate

Assistant Post in the 5th respondent arose for 2000-2001; the petitioner sent a petition to the 4th respondent requesting to appoint the petitioner

as a graduate teacher in the 5th respondent school. However, the 4th respondent appointed the 6th respondent as Tamil Pandit in the 5th

respondent school in his order No.EDN/K/VVC/277-17/2000. Aggrieved by the same, the petitioner has come forward with the above writ

petition.

Counter filed on behalf of the educational authorities. Though the counter appears to be filed by the third respondent, it is not specified on

whose behalf this counter is filed, inspite of granting time to rectify the defects and inspite of earnest effect made by the Government Advocate, this

has not been rectified. The attitude of the authorities in not responding to the request made by the Government Advocate whey they point out the

mistake in the affidavit is not proper. The counter must specify on whose behalf the counter is filed. The manner in which the counter filed is not

appreciated. But in the counter it is stated that as per G.O.Ms.No.373, Education (D1) Department dated 31.03.1989 when senior most Tamil

Pandit who is working in the school is posted as Middle School Head Master in the vacancy and the resultant vacancy shall be filled up by

B.T./Tamil Pandit according to the end of the particular school, that is, if the school has a B.Ed., Head Master the vacancy should be filled up by

Tamil Pandit and if the Headmaster is a Tamil Pandit, the vacancy should be filled up only by a B.Ed. teacher. But in the 5th respondent school in

the resultant vacancy, one more Tamil Pandit is appointed. It is contrary to the said G.O.

Respondents 4 and 5 filed counter-affidavit stating that the 5th respondent school is one of the 107 recognised educational institutions

established and administered by the Roman Catholic Diocese of Kottar, Nagercoil, which is a registered Society and a recognised religious

Minority; the School was established in 1927 as a Primary School; upgraded as a Middle School in 1957; as a High School in 1996 and Higher

Secondary courses were introduced in 1998. The school is fully recognised. However, financial aid is given by the Government only upto Middle

School level. The posts sanctioned by the Education Department are only upto Middle School level. The rest of the school is maintained by the

charities from the Churches. On the promotion of C. Antony Cruz as Headmaster, the post of Tamil Pandit fell vacant from 01.06.2000. The writ

petitioner''s application was also considered; considering the candidates'' merit, ability and suitability, ultimately, selected the 6th respondent. The

writ petitioner was not selected as he did not possess the qualifications required for the post. Proposals were sent to the third respondent on

06.07.2000 for approval to the said appointment. The writ petitioner is qualified for appointment as Graduate Teacher. But the impugned

appointment is not to the post of Graduate Teacher. It is to the post of Tamil Pandit, for which he does not possess qualifications. The seniority list

maintained by the Parish does not vest any right for appointment. Appointments are made purely by selection by the respective Education Boards.

Further, in the case of the writ petitioner, his seniority is not in the cadre of Tamil Pandit, for he does not possess the qualifications. The

appointment of the 6th respondent as Tamil Pandit is in accordance with law. The appointment of the 6th respondent cannot be said as illegal

merely because the Headmaster of the school happened to possess Tamil Pandit''s qualifications.

The 6th respondent filed counter raising the similar to the contentions raised by respondents 4 and 5. It is stated that the writ petition is not

maintainable at all. Since the school is Higher Secondary School and the 6th respondent was appointed in the Higher Secondary School which

does not get aid and, therefore, Higher Secondary School is not amenable to jurisdiction.

Heard both sides.

Learned counsel appearing for the petitioner submitted that in so far as the 5th respondent is concerned it is an aided school, upto 8th standard

(Middle School) and is bound by Tamil Nadu Private Schools Regulation Act and Rules thereon; it is not getting Government Aid only for the

teachers from IX to XII Standards. Since the petitioner is the senior most person he has to be appointed in the vacancy which arose on the

retirement of the Headmaster Mr. Crusaiya. Further, the requirement of one Tamil Pandit and one Graduate Teacher is as per G.O.Ms.No.1297,

Education dated 21.07.1979, G.O.Ms.No.373, Education, dated 31.03.1989 and also G.O.Ms.No.340, Education dated 1.4.1992.Hence, the

appointment of 5th respondent as Tamil Pandit is illegal and invalid. Therefore, the writ petitioner claims that the resultant vacancy should be filled

up only by graduate teacher. Therefore, the order appointing the 6th respondent should be set aside and in this place, the petitioner should be

appointed.

Learned counsel further submitted that a perusal of the G.O.Ms.No.373,Education Department, dated 31.03.1989 would show the purpose for

which the G.O. Was passed. The main reason for passing this G.O. was to provide English Teacher in the Middle school. Therefore, G.O. Was

passed in such a manner that whenever the person promoted as Headmaster, the resultant vacancy shall be filled up only by B.T. Assistant and

whenever the post of Headmaster occupied by a B.T. Assistant, the resultant vacancy shall be filled up by B.T. Assistant, among the B.T.

Assistant. The petitioner is the senior most who was appointed in the year 1976. Therefore, he should have been appointed in that vacancy.

Instead, R6, a Tamil Pandit has been appointed. Therefore, the order of appointment is not legally sustainable.

Learned counsel appearing for respondents 4 and 5 submitted that this G.O.No.373 has no application to the Middle School and is only

applicable to the Elementary school and he referred to the G.O. and contended that the very fact that it is director of Elementary education and the

wordings also referred to elementary school. Therefore, tugs G.O. Applies only to Elementary school and not Middle school or Higher secondary

School.

Learned counsel appearing for the 6th respondent submitted that the school gets aid only upto 8th standard and not IX to XII Standard, which

is Higher Secondary. The 6th respondent was appointed only for High School and hence, the appointment of the 6th respondent does not get grant

or aid. Therefore, the writ petition does not lie to challenge the appointment; further G.O.373 has no application to the High School or Middle

School, but it only supports to elementary school.

Learned Government Advocate appearing for the respondents 1 to 3 submitted that this appointment is contrary to the G.O. and hence is not

legally sustainable.

The reason stated in the said G.O. is extracted hereunder:

with a view to consider the claims of the Tamil Pandits working in B. Ed., scales and for appointing them as Headmasters of Middle Schools, the

Director of Elementary Education has suggested the following procedure:

a) In case of Government Middle School the Revenue District is taken as unit and in the case of Panchayat Union is taken as a unit, in the case of

aided school each aided or each cluster of aided schools under a single management is taken as a unit.

b) Whenever a new post of B.Ed. Headmaster post is sanctioned or a permanent vacancy of middle school Headmaster arises which has to be

filled up as per G.O.Ms.No.1297, Education, dated 21.07.1997 the senior most Tamil Pandit working as Tamil Pandit in the unit shall be posted

as Headmaster in the vacancy and the resultant vacancy shall be filled up by B.T. Tamil Pandit according to the need of the particular school i.e., if

the school has a B.Ed. Headmaster the vacancy should be filled up by a Tamil Pandit and if the Headmaster is a Tamil Pandit the vacancy should

be filled by a B.Ed. teacher.

c) Schools in which additional Headmaster are now working shall continue to maintain their status, as long as they continue in the post"".

Considering the arguments advanced by learned counsel appearing for the petitioner and the Government Advocate appearing for respondents

1 to 3, the contentions raised by the counsel for respondents 4 to 6 are not acceptable for the following reasons.

The said G.O. Paragraph 3 specifically refers that the Director of Elementary Education is however requested to ensure that there is a qualified

B.Ed. to teach English in respect of all middle schools under all kinds of Management i.e., Aided Panchayat Union and Government Schools.

Therefore, it refers to middle school also and even the previous paragraph 2(b) provides that whenever a new post of B.Ed. Headmaster post is

sanctioned or a permanent vacancy of middle school Headmaster arises which has to be filled up as per G.O.Ms.No.1297, Education, dated

21.07.1997 the senior most Tamil Pandit working as Tamil Pandit in the unit shall be posted as Headmaster in the vacancy and the resultant

vacancy shall be filled up by B.T./Tamil Pandit according to the need of the particular school i.e., if the school has a B.Ed. Headmaster the

vacancy should be filled up by a Tamil Pandit and if the Headmaster is a Tamil Pandit the vacancy should be filled by a B.Ed. teacher. Therefore,

from this G.O. whenever B.Ed. Headmaster post is vacant, the resultant vacancy should be filled up only by B.Ed. Teacher. But on the contrary,

following the provisions of this G.O. another Tamil Pandit has been appointed to the vacancy post and the Tamil Pandit is pointed as Headmaster.

Therefore, it is contrary to the Government Order which binding on the minority institutions also. Hence, and the appointment is not legally

sustainable. The order of appointment of the sixth respondent as a resultant is set aside and consequently, in the resultant vacancy, the writ

petitioner shall be accommodated.

In the result, the writ petition is allowed. No costs.