K ANANDHI Vs. DISTRICT EDUCATIONAL OFFICER

JUDGEMENT

(1.) PRAYER in W.P.No.3455 of 2004 is to issue a writ of mandamus directing the second respondent School to fill up the vacancy of B.T. Assistant in History in PLWA Higher Secondary School, Vikramasinghapuram, Tirunelveli District.

(2.) IN W.P.No.4467 of 2004, petitioner seeks a writ of certiorarified mandamus calling for the records of the first respondent in Na.Ka.No.122032/G6/02, dated 12.2.2004 and quash the same and consequently direct the first and second respondents to approve the promotion of the petitioner to the post of B.T.Assistant (History) in the third respondent school with effect from 1.6.1997 and grant all consequential benefits.

(3.) THE brief facts necessary for disposal of both the writ petitions as could be seen from the affidavit in support of the writ petition in W.P.No.4467 of 2004 are as follows: (a) PLWA Higher Secondary School, Vikramasingapuram, is a recognized private aided school and it is governed under the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and the rules framed thereunder. Petitioner Ganapathy completed Secondary grade Teacher Training course in the year 1973, passed B.A degree in history in the year 1977 and B.Ed degree in the year 1981 from Madurai Kamaraj University. Petitioner also passed M.A. in Rural service in the year 1979 and M.A. History in the year 1999. (b) Petitioner Ganapathy was appointed as Secondary Grade teacher in Hamim Middle School, Melapalayam. His appointment was approved and he was migrated from the said Hamim Middle School to the PLWA Higher Secondary School/third respondent School by the proceeding of the Chief Educational Officer, Tirunelveli, dated 16.10.1996 on condition that he should be placed as junior-most teacher in the seniority list. Petitioner joined in the third respondent School and his salary was not originally paid and after filing writ petition and contempt application, salary was released from 16.10.1996. (c) According to the petitioner, one B.T Assistant (History) post became vacant in the third respondent School from 1.6.1997 and petitioner applied for the said post seeking promotion based on his qualification. Four other teachers also applied for promotion. Interview was held on 24.5.1997 only to the petitioner as the other three candidates failed to attend the selection process. According to the petitioner, he was selected and appointed as B.T. Assistant (History) with effect from 1.6.1997. (d) Since the petitioner's migration to the PLWA Higher Secondary School/third respondent School as Secondary grade teacher was not approved, the approval of promotion to the B.T. Assistant post was also not granted. THE 4th and 5th respondents filed appeal before the first respondent on 31.7.1999 and the same having not been considered, they filed W.P.No.17696 of 1999 and prayed for issuing a writ of mandamus directing the third respondent School to promote them as B.T.Assistant (History). This Court by order dated 6.2.2002 directed the first respondent to dispose of the appeal filed by the respondents 4 and 5 dated 31.7.1999 within a period of two months. (e) On 5.11.2002 third respondent reverted the petitioner from the post of B.T. Assistant (History) to the post of Secondary grade teacher on the ground that the first respondent by proceeding dated 21.10.2002 passed an order cancelling petitioner's promotion on the ground that he is junior to 4th and 5th respondents in the school. According to the petitioner he was not heard and therefore he filed W.P.No.42033 of 2002 before this Court and by order dated 29.4.2003 the order of reversion as well as the order of the first respondent dated 22.10.2002 were set aside on the ground of violations of principles of natural justice with further direction to the first respondent to issue prior notice to all parties and decide the issue afresh. (f) THE first respondent, after hearing petitioner as well as the contesting respondents passed an order on 12.2.2004 and allowed the appeal holding that the senior-most teacher alone is entitled to be promoted and directed the School Committee to meet and decide accordingly. THE said order is challenged in W.P.No.4467 of 2004. (g) THE contention of the petitioner in W.P.No.4467 of 2004 is that the first respondent entertained the appeal on 31.7.1999 for the promotion given to the petitioner with effect from 1.6.1997 and the appeal is barred by limitation. Respondents 4 and 5 having not attended the written test as well as the interview, it is not open to them to file appeal and as per rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, promotion should be made on the grounds of merit and ability and seniority can be considered only when the merit and ability are approximately equal. THE School Committee having found the merit and ability, direction to consider seniority is unsustainable.