R. KANTNIMATHI Vs. STATE OF TAMIL NADU, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT

JUDGEMENT

(1.) THE petitioner was directly recruited to the Administrative section of the then Women's Branch of the Madras Educational Service and posted as Superintendent on the 13th March, 1950. On completion of probation she was confirmed as Permanent Inspectress of Schools, Madurai, with effect from the date of her appointment. Subsequently there was an amalgamation of the Men's Branch of the Madras Educational Service with the Women's Branch and the Madias Educational Service was reconstituted in 1955 In 1962 some officers who were juniors to the petitioner were promoted to the cadre of Deputy Director of Education and Divisional Inspector of Schools. She was protesting against this overlooking of her seniority. Subsequently on 25th July, 1966 she was promoted to the combined cadre of Deputy Director and Divisional Inspector of Schools. The next promotional post was that of Joint Director of Public Instruction. Her claim for promotion to this post was not considered and some other officer was appointed as Joint Director of Public Instruction in G.O. Ms. No. 1615, Education dated 25th October, 1969. At this stage the petitioner filed two writ petitions, W.P. No. 3886 of 1970 for a direction to fix her seniority over those who were promoted earlier than her as Deputy Directors and W.P. No. 3885 of 1970 for quashing the order of appointment as Joint Director of Public Instruction and to consider her claim to that post. By an order dated 24th September, 1974, this Court held that her claim for seniority over those who were promoted as Deputy Directors earlier to her promotion on 25th July, 1966 cannot be accepted though the persons who were promoted earlier were juniors to the petitioner in the cadre of Inspectors. But all the same, this Court held that though she is junior to the others her claim for promotion as Joint Director has to be considered along with the claims of other persons who are eligible for appointment as Joint Directors and since the Government conceded that her claim was not considered at the time when the Joint Director was appointed in G.O. Ms. No. 1615, Education dated 25th October, 1969, the writ petition for quashing of that order was allowed. This Court directed that the promotion made in the Government Order dated 25th October, 1969 cannot be treated as final and that the Government should consider her case also for promotion along with the other officers who were considered at the time of passing the said Government Order. The ultimate result was, the writ petition relating to claim of seniority was dismissed but the one relating to the claim to be considered for promotion as Joint Director along with the other persons was allowed. Subsequent to this order of this Court, the Government in G.O. Ms. No. 624, Education dated 19th April, 1975 have stated that they have reconsidered the claim of the petitioner along with the other officers in service who were eligible under the rules for promotion to the post of Joint Director of School Education as on 25th October, 1969 and that they have decided after a careful consideration that the petitioner was not fit for promotion and the promotion already made in G.O. Ms. No. 1615 dated 25th October, 1969 need not be modified. The petitioner appears to have: been making her representations against this -Government Order as not following the directions of this Court, but in the meantime, in G.O. Ms. No. 1674, Education dated 1st October, 1975, the petitioner was compulsorily retired from service under Fundamental Rule 56(d). The petitioner has filed Writ Petition No. 7493 of 1975 for the issue of a writ of certiorari to quash the order of the Government dated 1st October, 1975 in G.O. Ms. No. 1674 compulsorily retiring her from service. She has also filed Writ Petition No. 7494 of 1975 praying for a certiorari filed mandamus to quash the Government Order No. 624 Education dated 19th April, 1975 and to direct the Government to appoint her in the cadre of Joint Director of Education with effect from 25th October, 1969 with all the concomitant mmitant emoluments and benefits.

(2.) AS regards the claim for promotion, the contention of the learned Counsel for the petitioner is that the order of the Government had not given any reason, much less a valid reason, for rejecting her claim and as a non -speaking order, it is liable to be quashed. In the impugned order, after referring to the filing of the writ petitions and orders of this Court, the Government have stated that they have reconsidered the claim of the petitioner along with the other officers in service for promotion to the post of Joint Director, School Education, as on 25th October, 1969 as directed by this Court. It further stated that the Government decided after a careful consideration that the petitioner was not fit for promotion. In the counter -affidavit filed by the Government it has been stated that the petitioner was not one of the senior most of persons holding the post of Deputy Director when the vacancy arose in the post of Joint Director, that the senior persons of the category of Chief Educational Officer and Deputy Director of School Education were found suitable and that therefore they were appointed. The learned Counsel contended that these reasons are also erroneous and not valid. This Court had already held that the petitioner was not the senior in the category of Chief Educational Officer/Deputy Director of School Education over the other persons who were promoted as Joint Directors. It is now stated in the impugned Government Order that the petitioner's claim was reconsidered along with the other persons who are eligible for promotion, that the officers who were senior to the petitioner were found suitable and that the petitioner was not fit for promotion. This ground cannot be stated to be extraneous or irrelevant for consideration of promotion. As to whether the petitioner was fit for promotion as on 25th October, 1969, the authority competent to decide is the Government and this Court could not substitute its opinion on the same. Apart from the question whether the petitioner was fit for promotion or not, since her seniors were found to be fit and their merit was found not in any way inferior to that of the petitioner even as per the rules relating to promotion, there has been a strict compliance with the rules. The relevant rule only requires, where promotion shall be made on the ground of merit and ability, seniority being considered only where the merit and ability are approximately equal. For one thing, in this case, the merits of the petitioner and her seniors were found not equal and secondly the persons who were promoted were seniors to the petitioner. The impugned Government Order, therefore suffers from no infirmity and calls for no interference. Writ Petition No. 7494 of 1975 is therefore dismissed.

(3.) THE learned Advocate -General contended that the petitioner shall not be permitted to raise this question of validity of compulsory retirement on the ground that this point was not pressed before the Bench when they dealt with the validity of Rule 56(d). I am unable to agree with this contention of the learned Advocate -General. As already stated the question raised before the Bench related to common points arising in all the writ petitions and with reference to the validity of Rule 56(d). The merits of each individual case was not considered and in fact it is only for the said purpose, the cases were directed to be posted before a single Judge. Except the points that were covered by the decision of the Bench, all other points were left open. Therefore no question of res judicata or barring the consideration of the validity of the impugned Government Order compulsorily retiring the petitioner from service arises. This objection of the learned Advocate -General is therefore overruled.