P. Vijayalakshmi vs The Joint Director of Higher Secondary Education, The Chief Educational Officer, Trichy, The Sengunthar Higher Secondary School Committee and Mr. Yuvaraj

Honorable Mr. Justice K. Chandru

The petitioner is aggrieved by the appointment of the 4th respondent, as P.G. Assistant in English by the 3rd respondent School. The 3rd respondent School is a Private School, governed by the Provisions of Tamil Nadu Recognized Private Schools (Regulations) Act, 1973.

The petitioner''s initial prayer was for a declaration that the appointment of the 4th respondent was whimsical, ultravires and void ab initio. as he was appointed without even basic qualification and for a direction to the first respondent to consider the claim of the petitioner for promotion to the post of P.G. Assistant (English), under Rule 15(4) of the Tamil Nadu Recognized Private Schools (Regulations) Rules, 1974 with all monetary benefits. Subsequently, she filed an application in M.P.(MD)No. 2/2011, seeking to amend the prayer in the Writ Petition, because, by the time, the appointment of the 4th respondent was approved by the District Educational Officer, Musiri. For which approval was granted on 24.03.2009 by the DEO, Musiri. The amendment was ordered by this Court on 30.08.2011.

On notice from this Court, Mr. R. Singaravelan, learned counsel for the 3rd respondent and the learned Additional Government Pleader takes notice for respondents 1 and 2. Notice is yet to be served on R4.

In any event, it is immaterial in the facts and circumstances of the case. This Court is of the opinion that such a writ petition is not maintainable. as against any promotion made in terms of Rule 15(4) or appointment made by transfer from the lower post, rule 15(4)(A) provides for statutory appeal with a limitation. The scope of Section 15(4)(A) and the power of the School Management in selecting the candidates as well as the power of the appellate authority under rule 15(4)(A) and the power of the High Court to interfere under Article 226 of the Constitution of India, came to be considered in respect of the very same legal provision in the judgment reported in S. Sethuraman Vs. R. Venkataraman and Others, . The Supreme Court, in paragraphs 17,20,21,22 and 25, it is observed as follows:

While exercising the appellate jurisdiction, the appellate authority has indisputably a plenary power. It may not only consider the respective educational qualifications and other activities of the respective candidates for the purpose of arriving at a decision as to which of the two candidates had better merit and ability, but it should exercise its jurisdiction keeping in view the views of the Managing Committee. If two views are possible, ordinarily, the view of the Managing Committee should be allowed to prevail.

It is unfortunate that the High Court failed to apply the correct principles of law in this case. Each one of its reasons, in our considered opinion, is wholly untenable. It suffers from misdirection in law.

19....

If the appellate authority thought otherwise, its order would not be sustainable. It was, therefore, obligatory on the part of the High Court to apply its mind on the jurisdictional question raised by the appellant. It should have tested the orders of the appellate authority and consequently of the learned Single Judge of the High Court, on their own merits and not dehors the same.

When the extant rule operating in the field was referred to by the High Court, it should have applied the same. What, therefore, could have been done by the appellate authority was to follow the provisions of the Rules and not to act dehors the same. He was exercising a quasi-judicial function. As an appellate authority and acting under a statute, indisputably he could not have failed and/or refused to take into consideration the relevant factors and base its decision on irrelevant factors or on extraneous consideration.

Such a decision keeping in view the scope and ambit of the power of judicial review vested in the High Court under Article 226 of the Constitution of India could have been interfered with on the ground that the order impugned before it contained errors apparent on the face of the record. Whereas the learned Single Judge of the High Court in passing its order took the said principle into consideration, the Division Bench in our opinion failed to do so. Not only despite its attention having been drawn to a number of grounds leading to passing of the order impugned before it became vitiated, the High Court applied the principle of estoppels against the appellant and opined that having submitted himself to the jurisdiction of the appellate authority, he could not be permitted to question the legality of the same. The approach of the High Court in our opinion was wholly erroneous. Principle of estoppels has no application in a case of this nature. The appellant did not and in fact could not confer upon an authority a jurisdiction which he did not derive under the statute. If jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The jurisdiction of the appellate authority pursuant to the order of the Division Bench, which it will bear repetition to state, was passed on consent of the parties is not in dispute but only because the appellant consented to re-examination of the matter by the appellate authority, which it was otherwise entitled to, the same by itself could not have been found to be a ground for his becoming ineligible to challenge the final order passed by the appellate authority when a large number of jurisdictional errors were committed by it and were otherwise apparent on the face of the record. The Division Bench of the High Court in our opinion, therefore, was not correct in taking the aforementioned view.

23....

Most of the considerations which weighed with it were irrelevant.

Under the above circumstances, this Court is unable to grant the relief prayed for by the petitioner. Further, the averment made by the petitioner in page 4 of the affidavit that she has no speedy, efficacious alternative and adequate remedy is available is misconceived. On the other hand, as held by the Supreme Court, the only remedy is supervision by the departmental authority under rule 15(4)(A) of the scope of Judicial review is extremely limited. Under the said circumstances, the Writ Petition stands dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs.