M C CHINNAIAH Vs. T KESAVAKONAR CORRESPONDENT AND SECRETARY SELVA DAMODHARAN HIGHER SECONDARY SCHOOL PALAKKARAI TRICHY

JUDGEMENT

(1.) THE appellant was appointed as Headmaster of Selva Damodharan High School, Palakkarai, Trichy in 1968. THE school was upgraded into Higher Secondary School by Government Order in G.O.Ms.No.987, dated 7.6.1988. According to learned counsel for the Management of the School, it is a Higher Secondary School for all purposes from 1.6.1988 itself, though the Higher Secondary Classes were actually opened from 30.7.1988. THE Management passed an order on 27.7.1988 reverting the appellant from the post of Headmaster and posted him as B.T. Assistant in the Higher Secondary School with effect from the forenoon of 30.7.1988. THE reason given in the order is that consequent on the upgradation of the school, the appellant was not fully qualified to hold the post of Higher Secondary School Headmaster as per rules. Challenging the correctness of the order, the appellant filed an appeal before the Joint Director of Schools (Education). By order dated 9.7.1990 the Joint Director allowed the appeal and set aside the order of reversion. Relying on G.O.Ms.No.720, Education, dated 28.4.1981 and G.O.Ms.No.1514, Education, dated 23.9.1988, the Joint Director held that the appellant had time till 31.5.1990 to qualify himself educationally to continue to hold the post of Headmaster of the Higher Secondary School and he should have been allowed to continue as such. THE Joint Director also relied on G.O.Ms.No.810, Education, dated 15.6.1990 whereunder the Government accepted the recommendation of the Director of School Education and ordered that the Headmasters of the Schools listed in the annexure to that order would continue to hold the post of Headmaster till they acquire the prescribed qualifications or till their retirement whichever is earlier.

(2.) AGGRIEVED management of the school filed W.P.No.11557 of 1990 challenging the correctness of the order of the Joint Director and also the validity, of the Government Order. The writ petition was allowed by a single Judge of this Court on 11.2.1991 quashing the Government Order and setting aside the order of the Joint Director. Learned Judge remanded the matter to the Joint Director for fresh disposal in accordance with law and to pass-orders on or before 15.5.1991. The Joint Director passed an order on 31.5.1991 holding that there was no vacancy in the post of Headmaster at the time when the school was upgraded as G.O.Ms.No.1091, Education, dated 15.6.1978 was applicable and as per the said Government Order, the Headmaster of the High School continued, as the Headmaster of the Higher Secondary School, though he was not qualified, but he shall draw the salary of the Headmaster of the High School. In that view he held that the appellant was entitled to continue as Headmaster of the Higher Secondary School and the management could not have appointed anybody else to that post. He also directed that the appellant shall draw the salary of the Headmaster of the High School till he attains the Post-Graduate qualification to be eligible for the post of Headmaster of the Higher Secondary School. That order is challenged by the school management in W.P.No.8164 of 1991. Learned single Judge allowed the writ petition holding that after the passing of G.O.Ms.No.720, dated 28.4.1981, G.O.Ms.No.1091, dated 15.6.1978 ceases to be in force as the later rules were statutory Rules framed under Art.309 of the Constitution of India. For that purpose, learned single Judge relied on the judgment of the Division Bench in W.A.Nos.640 and 669 of 1985 dated 24.6.1986. Learned single Judge also rejected the contention of the appellant that Clause 11 of G.O.Ms.No. 720 could protect him and permit him to continue in service, holding that a similar contention was rejected by a Division Bench in Review C.M.P.Nos.12479 of 1989 and 37 of 1990 in W.A.No.346 of 1989.

(3.) IF the facts had been correctly represented before the Division Bench, there would not have been any need for a reference to the Full Bench. Unfortunately all the parties were under a wrong impression that the upgradation of the School into Higher Secondary School was only on 30.7.1988. All the affidavits filed by the parties including the counter affidavit filed by the Government and the orders passed by the authorities concerned refer only to that date. It was only this morning, learned counsel for the appellant brought to our notice that the School was upgraded or an earlier date in G.O.Ms.No.987, dated 7.6.1988. There is no dispute now that the school was actually upgraded with effect from 1.6.1988, the commencement of the academic year 1988-89. Hence we have to decide this case on the basis of the crucial fact that the school was upgraded on 1.6.1988 or atleast on 7.6.1988, the date of the Government Order.