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Judgment
V.S. Sirpurkar, J.—This judgment will dispose of Writ Appeal No. 914 of 1997 and Writ Appeal No. 240 of 1999 as the question is
common. For the sake of convenience we shall consider the facts in Writ Appeal No. 914 of 1997. That is filed by one D. Philip. His writ petition
before the learned single Judge was dismissed by the learned single Judge and that is how he comes before us in this appeal.
Mr. D. Philip, the Appellant herein, was appointed in the original 5th Respondent school as a Secondary Grade Teacher on 07.06.94. The
question is of the approval to his appointment. The Respondents, and more particularly the third Respondent, refused to approve that appointment
by his order dated 03.10.1996 and that is how the writ petition came to be filed. There is a short factual background. The school, the 5th
Respondent, is a Middle School. It was a Government policy, as reflected in 1979 and more particularly by the Government Order dated
21.07.1979 that every Middle School should have a B. Ed., qualified Headmaster. The Government was to execute this policy in a phased manner
and such headmasters were to get the salary in the scale of pay of Rs. 450-20-590-25-740-30-800. The rest of the provisions are not relevant,
but, two paragraphs in this Government Order are extremely relevant for the purposes of the present controversy. They are,
(b) (i) When permanent vacancies arise in future in posts of Headmasters of Middle Schools (due to death retirement, resignation, etc.) such
vacancies shall be filled up by the seniormost among persons working as Secondary Grade teacher or in other cadres of trained teachers but
qualified for H. Ed./Pandit in the particular management (i.e. Govt., all Govt. Schools; Local Bodies - Schools under each Local Body- Aided
Schools Each Aided school or each cluster of Aided Schools under a single management) and such person shall be allowed B. Ed, scale from the
date of appointment.
(ii) If no such Secondary Grade or other Teacher qualified for B. Ed./Tamil Pandit is in service on the date on which a vacancy arises such vacancy
shall be filled up appointing a Tamil Pandit (from the open market or by transfer from another management) as Headmaster (on B. Ed, scale).
In pursuance of this policy, the Government further created some additional posts of Headmaster of the Middle School by its Order viz. G.O. Ms.
No. 1429 dated 28.07.80. To begin with 200 additional posts of B. Ed, grade headmasters were created and they were to be distributed. It
seems that at the relevant time, in this school one Muthian was working as a Headmaster. He was a secondary grade teacher. Being the senior
most he was working as the Headmaster. In pursuance of G.O. Ms. No;1297 dated 21.07779, the Government sent one Shanmuga Perumal as a
Headmaster of this school in the year 1985. Shanmuga Perumal was a B.T. and he was sent in addition to the school''s strength of the 5th
Respondent. As a result of his joining, Muthian, who was already working as a headmaster, would have ordinarily been reverted to his original
post of the secondary grade teacher. But, because of the Government Order No. 1429 dated 28.07.80, and more particularly because of
paragraph 3 therein, Muthian was redesignated as Additional Headmaster. Under Clause 3 of the aforementioned G.O. Ms. No;1429, in such
eventuality the post of Secondary grade headmaster which already existed in the Middle School and in place of which a B.T. grade headmaster
was appointed, that erstwhile headmaster was to be redesignated and continued as additional headmaster. It was then provided that the incumbent
on such post will be given full protection for drawing pay (Special pay of allowances) from time to time in future as if he had continued to be a
Headmaster. In that way, Mr. Muthian was continued in the school till he retired as an Additional Headmaster on 31.05.1994. After he retired, in
his place the Petitioner/Appellant D. Phillip was appointed on 7.6.94, not as an Additional Headmaster but as a secondary grade teacher. It seems
that the approval to this post was refused.
At the time of his appointment there was a general ban on the appointment of the teachers. A writ petition was filed being W.P. No.16103 of
1994 challenging that ban. In fact, number of such petitions were filed. However, in the present W.P. No. 16103 of 1994, there is an interim order
passed by AR. Lakshmanan, J. as His Lordship then was, permitting the post to be filled in and directing the post to be filled in and directing the
department to give approval if the post was a sanctioned post. The department, it seems, did not accord the approval taking the view that the post
of the Petitioner was not a sanctioned post and rejected the approval as mentioned above stating that, that post had lapsed because of the
retirement of Mr. Muthiah. The challenge is to this decision of the department.
However, in W.P. No.11315 of 19% P. Sathasivam, J. took the view that the post of Mr. Muthiah had in fact lapsed with his retirement and the
school could not have appointed the Petitioner in the post of a secondary grade teacher as that post was not available at all. This judgment of the
learned single Judge is in challenge before us in Writ Appeal No.914 of 1997.
The learned senior counsel appearing for the Appellant urged before us that the learned single Judge was in error in taking the view that the post
of the secondary grade teacher had lapsed. The learned senior counsel brought to our notice number of judgments passed by the learned Judges of
this Court wherein an unequivocal view was taken that under the circumstances the post of secondary grade teacher could not be said to have
lapsed. More particularly the learned senior counsel drew our attention to the judgment of M. Srinivasan, J. as His Lordship then was in W.P.
No.8383 of 1992 as also a few subsequent judgments. The learned senior counsel urged that it was a misnomer to hold that a Headmaster who
was redesignated as an additional headmaster because of the appointment of a new B.T. trained headmaster and who was allowed to continue as
an additional headmaster would take with himself his original post of secondary grade teacher also. The learned senior counsel was at pains to
point out that even as per the earlier Government order what was implied was that after such person was allowed to continue as an additional
headmaster, there would be no appointment of any person in the school as an additional headmaster because that post would not be available. The
learned senior counsel pointed out that, however it could not be said that when such person retires, the post of a secondary grade teacher on
which he was serving, would also lapse and with the result that in his place no other secondary grade teacher could be appointed. The learned
senior counsel urged that the appointment of a B.T. Grade Headmaster in the school was in addition to the school strength and not in substitution
of the already working secondary grade headmaster, and therefore, according to the learned senior counsel there would be no question of the
school management loosing one post of a secondary grade teacher with the retirement of the Additional Headmaster who was none else but the
erstwhile headmaster substituted by the newly appointed B.T. grade teacher. In short, according to the learned senior counsel, the said additional
headmaster would be having two characters, one of a secondary grade teacher and another of the additional headmaster. What would be lost by
the retirement of such person would be the post of an additional headmaster but not the secondary grade teacher. The learned senior counsel
carries his argument further and submits that the new posts of the B.T. headmaster were given only to such schools which were well managed
schools and more particularly which had more students strength than 300. According to the learned senior counsel, therefore, even in the
appointment of a new B.T. headmaster adequate care was taken that the students teacher ratio was not disturbed. He, therefore, pointed out that
in not allowing the school to appoint a secondary grade teacher in place of a retired additional headmaster, that ratio would also be affected and
the school would suffer for no fault of it.
As against this, the learned Government Pleader very earnestly argued that the basic idea behind the appointment of the B.T. headmaster was
the betterment of the school standards. In that the Government was of the view that the incumbent working on that post as a headmaster who
could be equally a secondary grade headmaster should not suffer and, therefore, he was allowed to continue as an additional headmaster, but, only
till such time as he in person continued to be serving. According to the learned Government Pleader this was purely a temporary arrangement and,
therefore, when such additional headmaster either retired or left the post on account of any other reasons like death, resignation, etc. that post, the
whole post, would be lost to the school management and, therefore, the school could not appoint a fresh secondary grade teacher in the place of
such additional headmaster. The crux of the argument of the learned Government Pleader was that practically all the middle schools were to get
such headmaster who was a B.T. trained headmaster and there was no question therefore of the student teacher ratio. He pointed out that in
allowing the present school management to appoint a secondary grade teacher in place of the additional headmaster who retires there was
likelihood of the disturbance of the students teacher ratio. The learned Government Pleader very heavily relied and justified the judgment of the
learned single Judge. On these conflicting stands we have to see as to whether the learned single Judge was justified in negativing the claim of the
Petitioner.
When we consider the implication of the Government orders and the results thereof, we have to consider three Government Orders
1) G.O. Ms. No.: 1297 dated 21.07.79,
2) G.O. Ms. No. 1429 dated 28.07.80 and
3) G.O. Ms. No. 280 dated 04.03.86.
Even at the cost of repetition we may bring out the salient features of these three Government Orders. The first Government Order No.1297
dated 21.07.79, as we have cleared, was brought into existence with an idea of providing the B. Ed., Headmasters to about 4400 Middle Schools
(higher elementary schools). It was found by the Government that out of 5700 Middle Schools about 1234 middle schools were already having B.
Ed., qualified Headmaster while 4400 Middle Schools were to be provided with the B. Ed. qualified headmaster. There are some guidelines
provided in this Government Order as to how the promotions are to be given and as to how the vacancies are to be filled in. Then came the
Government Order G.O. Ms. No.1429 dated 28.07.90. By this 200 posts were created. They were additional posts meaning thereby that the
strength of existing cadre of the headmaster was increased. These posts were to be distributed for allotment to individual schools which were well
managed and which had a strength of more than 300. This distribution was to be made equitably and on the basis of the approved teacher pupil
ratio. The posts which were to be distributed were to be permanent posts. Paragraph 2 provided for the entire modality to fill up the posts.
Paragraph 3 specifically provides that if a secondary grade headmaster in whose place the B. Ed. grade headmaster is appointed, he would be
redesignated as additional headmaster and his pay would be protected as if he had continued to be a headmaster. There is a very significant
sentence appearing in paragraph 2 of this Government Order and that is,
Since these 200 posts of B.T. Grade Headmaster are additional posts, the Secondary Grade or other posts vacated by the person going over to
hold the post of B.T. Grade headmaster can also be filled up by a substitute in the normal course.
After this Government Order came G.O. Ms. No280 dated 4.3.86. By this Government order 250 additional posts of B. Ed. Grade headmaster
were sanctioned. They were also to be distributed in the same manner as disclosed in G.O. Ms. No.1429. Again the teacher pupil ratio was also
to be maintained while distributing these posts to the various Middle Schools. In short, the G.O. Ms. No.280 was nothing but practically a copy of
the earlier G.O. Ms. No.1429. It seems that the Department has taken a view in respect of these Government orders that the provision of the post
of additional headmaster is of a temporary nature and that such Additional Headmaster who retires or vacates his post takes along with him the
post.
The department very heavily relies on a clarification which seems to have been issued by and for the Director of Elementary Education vide
Order No. Na. Ka. No. 484832/ B6/8S dated 12.09.1986. Significantly enough this clarifications suggests that under the circumstances that a
secondary grade Headmaster is substituted by a B.T. Grade Headmaster and becomes an Additional Headmaster as provided in the afore
mentioned two Government Orders and if such Additional Headmaster, posts becomes vacant either due to his retirement/resignation or both, the
posts will lapse and this post should not be filled up. The clarifications suggests that the Government has recently issued a clarificatory orders
confirming this position and, therefore when the post of Additional Headmaster becomes vacant that post shall not be filled up. It seems that relying
on this particular clarification, the Respondents have taken the position and the learned Government Pleader also very heavily relies upon this
clarification and suggests that the posts cannot be filled in.
When we see this clarification it clearly suggests that the post of Additional Headmaster shall not be filled in. We have absolutely no quarrel
with this proposition. What is however, tried to be suggested by the Government is that even the post of the Secondary Grade teacher which has
been vacated by the Additional Headmaster should also not be filled in. The senior counsel candidly admitted that he has no objection if the post of
Additional Headmaster is not filled in and the learned senior counsel submits that, in fact, that is the very meaning of the Government Orders as
well as the clarification. However, he argues further that it does not mean that the post held by the Additional Headmaster substantially of the
Secondary Grade teacher should also not be filled in. We find force in this argument. This is apart from the fact that we have still not been shown
any Government''s Clarificatory Order. What we are shown is only a letter dated 12.09.86 purported to have been scribed by or for Director of
Elementary Education. It does make a reference to the clarification issued by the Government which have so for not been shown to us or even to
the learned single Judge. We have our own doubts as to whether a Government Order issued in the name of the Governor can be so clarified by a
Department official. Perhaps the only way to look at it would be is that the letter suggests as to how the said Director understood the said
Government Order. According to us, however, this clarification does not have a legal status. The departmental officer cannot override a
Government Order issued in the name of the Governor. But, we are not on that question because even if the clarification letter is accepted as it is, it
is the correct clarification in the sense that there would indeed not be any scope for the post of the Additional Headmaster being filled in once the
additional headmaster vacates the post. What it further means is that after such Additional Headmaster vacates his post, there shall be no further
post of an ""Additional Headmaster"". It would be seen that after the B.T. Grade Headmaster goes and substitutes the Secondary Grade
Headmaster, the Secondary Grade Headmaster becomes Additional Headmaster and the school continues with a substituted Headmaster who is
B.T. Grade headmaster and an Additional Headmaster. Such situation would be given a quietus with the Additional Headmaster vacating his post
and further there would be no Additional Headmaster. According to us, that is the only way to look at even the clarification. If this is the meaning
of the clarification and indeed it is the only meaning of the clarification then, according to us, the clarification also would not help- the Government.
The view taken that because of the clarification even the Secondary Grade teacher could not be appointed is obviously an incorrect view. There
would be no warrant to take such a view particularly taking into consideration the very important fact that in both the Government Orders earlier
referred to, the factor of teacher pupil ratio has been given utmost importance. If the view taken by the department is to be affirmed then
undoubtedly in getting B.T. Grade Headmaster the school management would be loosing one Secondary Grade teacher. Such, in our opinion,
cannot be a correct interpretation.
The learned Government Pleader very heavily relied upon a judgment of a learned single Judge of this Court (P. Shanmugham, J.) rendered in
W.P. No.7565 of 1998 wherein the learned Judge has reiterated and followed the judgment in the writ petition No.11315 of 1996 which
judgment is before us for consideration. In that view everything would depend on whether we accept the judgment of the learned single judge (P.
Sathasivam, J.) in W.P. No. 11315 of 1996. The learned senior counsel, however, points out to us that P. Sathasivam, J. also has chosen not to
follow the view, he had expressed here, in W.P. No. 17375 of 1995 decided on 14.01.2000. We have seen the judgment of the learned single
Judge and the learned Judge has undoubtedly taken a view that the post of the secondary grade teacher would not lapse with the departure of the
Additional Headmaster and the school authorities would be entitled to fill up the vacancy. The learned single Judge seems to have followed the
view expressed by J. Kanakaraj, J. in W.P. No. 9818 of 19% dated 29.11.%. Thus, the judgment in W.P. No.7565/98 would not be of any help
to the Government.
Now, turning to the impugned judgment, we find that the learned Judge has chosen to rely only upon the clarification to which we have already
adverted. In our opinion, the clarification would not be of any help to the Government and we have given our reasons for holding so. We,
therefore, find ourselves unable to agree with the learned single Judge when relying on the afore mentioned clarification dated 17.6.85 the learned
Judge holds that the post of the Secondary Grade Teacher held by the Additional Headmaster would also lapse along with the post of the
Additional Headmaster. In our opinion, that said clarification letter should have been interpreted to mean that there cannot be an appointment of a
second Additional Headmaster. The letter cannot overreach and engulf the post of the Secondary Grade teacher also. Though the learned single
Judge has made a reference to the afore mentioned judgment particularly of M. Srinivasan, J. (as His Lordship then was) he has chosen to rely on
the alleged afore mentioned clarification dated 17.6.85 and that is the only reason for not following the judgment of M. Srinivasan, J. Since we
have found ourselves unable to agree with the learned Judge on the interpretation of the said clarification, we would choose to set aside the
judgment of the learned single Judge and allow this writ appeal.
Before closing we will have also to take stock of Writ Appeal No.240 of 1999. It will be seen that here the learned single Judge S.S.
Subramani, J.) has actually taken the view which we have now taken. It is the Government which choose to go up in appeal against the view
expressed by the learned single Judge wherein the learned Judge has clearly referred to the judgments of Justice M. Srinivasan, J. as also Justice
Duraisamy Raju, J. and also Justice Shivraj Patil, J. The learned Judge has found that all these judgments are unanimous in taking the view that the
post of the Secondary Grade Teacher did not lapse. The learned single Judge has also referred to the afore mentioned clarification and has held
that, that clarification would not be of any consequence. We are in entire agreement with the learned single judge and would choose to affirm the
judgment. There would be no necessity for us to give the facts as everything would turn upon the interpretation of the Government Order as well as
the clarification letter dated 17.6.85. We would, therefore, only choose to affirm the judgment and dismiss the appeal filed by the Government.
In the result, Writ Appeal No.914 of 1997 succeeds and is allowed while Writ Appeal No.240 of 1999 fails and is dismissed. In the view that
we have taken the writ petition of D. Philip stands allowed. The Government would be well advised to accord the approval within a reasonable
time and as far as possible within two months from to-day.