R BALASUBRAMANIAN Vs. S SUBRAMANIAM

JUDGEMENT

(1.) VACANCY in the post of Headmaster arose in Sokkalal Higher Secondary School, mukkudal, Tirunelveli Kattabomman District, which is an aided school. Therefore, it is governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Recognised Private Schools Regulation rules, 1974 (hereinafter referred to as the'rules'). At certain point of time, there was a controversy as to whether the Rules did apply to the aided schools regarding recruitment. This was made clear by the State Government by issuance of G. O. Ms. No. 720 Education, dated April 28, 1991. That Government Order also raised a controversy and the matter was to be settled by the Full Bench of this court in The Saliar Mahajana Hr. Sec. School v. The Joint Director of Schools (Hr. Sec.) etc. , 1995 WLR 277 in which it was held that the Rules did apply to the private aided schools. Therefore, the vacancy in the post of Headmaster was to be filled up as per Rule 15 (4) of the Rules. The said Rule reads thus : '(4) (i) Promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. (ii)Appointments to the various categories of teachers shall be made in the following methods : (i) Promotion from among the qualified teachers in that school. (ii) If no qualified and suitable candidate is available by method (i)as above - (a) appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers; (b) appointment of teachers from any other school; (c) Direct recruitment. In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officers in respect of Pre-Primary, Primary and Middle school and that of the Chief Educational Officer in respect of High Schools, and Higher Secondary Schools , Teachers'Training institutions setting out the reasons for such appointment. In respect of corporate Body running more than one school, the School under that body shall be treated as one unit for purpose of this rule. (d) Appointment to the Post of headmaster of Higher Secondary School shall be made by the method specified in clause (ii), either from the category of Headmasters of High Schools or teachers'Training Institutes or from the category of Post Graduate Assistants in Academic subjects or Post Graduate Assistants in languages provided they possess the prescribed qualifications". From sub-rule (4) of Rule 15 of the Rules, extracted above, it is clear that the vacancy to the Post of Headmaster has to be filled up by promotion. In the event, the teachers, eligible to be promoted as headmaster, are not available, the School Committee has been given an option to fill up the vacancy by direct recruitment, also apart from other two modes as mentioned in clauses (a) and (b) of Rule 15 (4) (ii) after obtaining the prior permission of the District Educational Officer in respect of Pre-Primary, primary and Middle School.

(2.) IN the instant case, there is no such prior permission obtained nor there is any determination made by the School Committee that no eligible teacher is available for promotion as Headmaster. IN the absence of any such decision by the School Committee and the permission prior obtained from the authority, as mentioned in-sub-rule (4) of Rule 15 of the Rules, the action taken by the School Committee to fill up the post by direct recruitment has to be held as unauthorised and illegal. The object of the Rule is to provide an opportunity to those teachers, who are already serving in the school, if eligible for promotion to the post of Headmaster. A right is conferred upon those teachers who are eligible to he considered for promotion as Headmaster and such a right cannot be ignored. The procedure followed by the school Committee, ignoring Rule 15 (4) of the Rules, is illegal. The School committee ought to have considered the teachers, who are eligible to be considered for promotion as Headmaster. Anyhow, there is a finding that the writ petitioner is also eligible. No doubt, the correctness of that finding is disputed. That apart, as the very initial requirement has not been complied with, viz. , determination as to the non availability of the eligible teachers in the school for promotion as Headmaster and the prior permission from the concerned authority, , as per sub-Rule (4) of Rule 15 of the Rules, making direct recruitment vitiates the entire action of the School Committee. Therefore, we are of the view that the order of the learned single Judge does not call for interference. We do notice that the writ appellant has put in sufficient number of years of service. No doubt, for the illegality committed by the School Committee, the appellant has to suffer. All that we can say is that if it is possible for the School Committee and the authority concerned to accommodate the appellant, otherwise, in accordance with law, it would be open to do so. However, so far as the post of Headmaster is concerned, it has to be filled up according to the Rules. With these observations, we dismiss the writ appeal. However, there will be no order as to costs. C. M. P. No. 8470 of 1996 is also dismissed. .