S. Vaitheki vs The Chief Educational Officer, Theni District, Theni and Others

Honourable Mr. Justice K. Chandru

The petitioner is an applicant for the post of Physical Education Teacher in the third respondent school. The third respondent school is a Private Higher Secondary School and aided by the State Government and governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder. The petitioner earlier filed the writ petition before this Court being W.P.(MD) No. 13682 of 2010 seeking for a direction to the third respondent school to conduct appropriate interview under the supervision of the 1st and 2nd respondents for the post of Physical Education Teacher and also to give priority to the petitioner by considering her temporary service rendered to the school. It is the claim of the petitioner that she has worked 401 days in the school as temporary capacity. Therefore, she is eligible for priority consideration. But however, when the writ petition came up on 07.01.2011, she withdrew the writ petition with liberty to challenge the appointment of the fourth respondent.

It must be noted that even at the time of filing of the earlier writ petition, the fourth respondent who is successfully appointed and she impleaded as fourth respondent. Therefore, the petitioner must be aware that the fourth respondent is proposed to be selected for the said post.

Now the petitioner having obtained a copy of the appointment made in favour of the fourth respondent, dated 06.01.2011 filed the second writ petition.

When the writ petition came up for admission on 10.01.2011, notice of motion was ordered. Pending the writ petition, interim injunction was granted from approving the appointment of the fourth respondent. Subsequently, it was informed to this Court that approval was already granted to the fourth respondent. Yet this Court, since the petitioner was sought for further time extended the interim order. When the matter was subsequently adjourned to 02.03.2011. It was once again informed to this Court that the continuation of the interim order will prejudice to the right of the third respondent as approval has already been granted by the first and second respondents as early as 07.01.2011 and to that effect, the official respondents were directed to file written instructions. On 27.04.2011, the interim order granted by this Court was vacated by holding that the continuation of the stay will not be any use to anyone.

In the meanwhile, the petitioner filed Contempt Petition No. 93 of 2011 to punish the then Chief Educational Officer, the District Educational Officer, and the Secretary of the School for having disobeyed the order passed in M.P.(MD) No. 2 of 2011 in W.P.(MD) No. 389 of 2011 vide order dated 10.01.2011.

When the contempt petition came up before this Court on 11.02.2011, this Court directed the learned Additional Government Pleader to get instructions from the respondents. Subsequently, time was extended to file counter affidavit.

On behalf of the third respondent school, a counter affidavit, dated 05.02.2011, has been filed together with the supporting documents. The second respondent has also filed a counter affidavit dated 09.03.2011. In the counter affidavit filed by the District Educational Officer, it was stated that the third respondent school is having a school committee duly constituted in terms of Section 15 of the Tamil Nadu Recognised Private Schools (Regulation) Act. It is the school committee which alone can appoint a teacher in terms of Section 18(1)(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act.. It is stated that the third respondent school committee with the help of three experts in the subject of physical education conducted interview and the petitioner was also attended interview and it is the school committee which had selected the fourth respondent and submitted proposals for approval. When the proposals for approval was sent to the District Educational Officer, he has approved the appointment on 06.01.2011. It is also stated that the fourth respondent is not attending the school and signed the attendance register and only because of the interim order, her salary has not been paid.

It must be noted that admittedly, the third respondent school which is recognised as private school governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act. If any appointments are made in terms of Rule 15(4) if he or she is a person are already employed in that school and seeking for the post by way of promotion and also file an appeal under Rule 15(4) (a). But so far as the petitioner is concerned, she cannot be said to be a person aggrieved in terms of Rule 15(4)(a) because she is only contesting for the said appointment. It must be noted that the appointment is made by a private school and as stated in the counter affidavit by the second respondent that due procedure has been followed and it is a school committee with the help of the experts having conducted interview and selected the fourth respondent. Therefore, there cannot be any challenge in the said appointment.

The Supreme Court while considering the appointment made by a school committee and thereafter reviewed by the appellate authority under Rule 15(4)(a) vide judgment in S. Sethuraman Vs. R. Venkataraman and Others, held that even in case of permitting a person in a private school the views of the managing committee (the school committee) should be kept in mind and if there are two views are possible, the view of the school committee should be allowed to prevail. The High Court in exercise of power under Article 226 of the Constitution should not interfere with the decision taken by the School committee when it is properly exercised in terms of the Act. In this context, it is necessary to refer the paragraph nos.16 to 22 of the judgment which are as follows:

16.The terms and conditions of service of the teachers of an aided school are governed by the Act and the rules framed thereunder. The Managing Committee of the school in terms of Rule 15 of the Rules are enjoined with a duty to fill up the post of Headmaster primarily on the basis of "merit and ability". Indisputably, the Committee while appointing a person must take into consideration the merit and ability of the candidate alone and only when the respective merit and ability of two candidates are equal, seniority will have some role to play. Respondent 1 is senior to the appellant only by 13 days. At the relevant point of time, the appellant had passed the prescribed Accounts test for Headmasters conducted by the Tamil Nadu Public Service Commission in the year 1989. Before us various other factors have been placed for the purpose of showing that apart from the fact that the appellant was more qualified, Respondent 1 having regard to his past services should not have been considered suitable for appointment to the said post.

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.

As noticed hereinbefore, the matter was remitted to the Joint Director of School Education by the High Court with the consent of the parties but the High Court in its order categorically directed the said authority to consider the matter strictly within the scope of Rule 15 of the Rules. The High Court did not and could not enlarge the scope of the appeal.

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 estoppel 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 estoppel 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.

In the present case, even the liberty to move the appellate authority is not available to the petitioner as she is not approved teacher working in the school claiming any promotional post and there is a rival contesting was not qualified in terms of the Rules relating to the promotion. Hence, the writ petition stands dismissed. In view of the dismissal of the writ petition and also the stay order has already been vacated by this Court, there is no contempt made out. Hence, the contempt petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.