M. Siluvi Rajan vs Director of School Education, College Road, Chennai-6 and 4 others

Judgment pronounced by S. Jagadeesan, J.—The appellant was originally appointed as Middle School Assistant on 16.6.1982, in the fourth

respondent''s school. Subsequently on 7.6.1993 he was promoted as B.T. Assistant. The P.G. Assistant post in Economics fell vacant on

31.5.1997. Before ever the post fell vacant, on 15.5.1997, the appellant made a request to consider his name for the post of P.C. Assistant. On

2.6.1997, the fourth respondent appointed fifth respondent in the vacancy of P.C. Assistant (Economics). Challenging the same, the appellant filed

a writ petition in W.P.No.9654 of 1997. The learned Single Judge by the order dated 24.4.1998 dismissed the said writ petition. As against the

same, the present appeal is filed.

Mr.R.Subramaniam, learned counsel for the appellant contended that Rule 15(4) of the Tamil Nadu Private Schools (Regulations) Rules 1974

contemplates that ""the promotion should be made from among the qualified teacher in the same school and only if no qualified and suitable

candidate is available, appointment from out side can be made"". In the case on hand, the appellant is fully qualified for the post of P.G. Assistant

and as such the appointment of the fifth respondent made by the fourth respondent is bad. He further contended that in the counter statement, the

fourth respondent has stated that the appellant''s case was considered along with other candidates on 23.5.1997. If that is so, the procedure

adopted by the fourth respondent is not inconfirmity with the Rules, the case of the appellant ought to have been considered and only if it is found

that the appellant is not suitable, the application from the out side candidates can be called for and considered. The consideration of the case of the

appellant along with other candidates is contrary to the statutory requirement and as such as selection of the fifth respondent is vitiated.

Per contra, Mr. G.S. Thamby, learned counsel appearing for the fourth and fifth respondents contended that the institution being a minority one,

the rules relied upon by the learned counsel for the appellant has no application in view of the guarantee granted under Article 30(1) of the

Constitution of India. He also relied upon some of the judgments of Supreme Court. He further contended that even assuming that the Rules are

applicable to the fourth respondent institution, it has been found that the fifth respondent is more qualified and suitable person than the appellant

herein and as such, the appellant cannot claim the right of appointment to the P.G. Assistant post by virtue of the seniority alone.

We carefully considered the contentions raised by both counsel. Since the learned Single Judge has elaborately discussed the matter after

extracting the Rule 15(4) of the Tamil Nadu Private Schools (Regulation) Rules, 1974, as well as the various other judgments, it is not necessary

for us to reproduce the same. The primary contention of the learned counsel for the appellant is as per Rule 15(4), the teachers who are working in

the school must be considered for the promotion and if no qualified and suitable candidates are available, then only the out side candidates can be

selected. Hence without considering the eligibility of the appellant at the first instance, it is not open to the fourth respondent to call for the

applications from the outsiders and consider the merits and demerits of all the candidates comparatively.

It is for us now to consider whether it is condition precedent to call for the applications from the outsiders that the management has to come to

the conclusion that there is no existing qualifying hand in the school. Even for the purpose of arguments, we accept the plea of the learned counsel

for the appellant herein we are of the view that, management calls for the applications from the outsiders that itself would show a prima facie

conclusion on the part of the management that the existing staff is not qualified even if qualified, he is not suitable candidate. Even otherwise, in the

interest of institution of provide good education, it is always open to the institution to select a better qualified person by calling for the applications

for a comparative study. If any better and suitable candidates are available, the management cannot be forced to give a promotion to the existing

candidate by virtue of the seniority alone. Rule 14(4) makes it clear that the promotions shall be made on grounds of merit and ability, seniority

being considered only when merit and ability are approximately equal.

In the case on hand, the qualification of the appellant is M.A. in Economics (Postal), B.Ed., (History), whereas fifth respondent is having M.A.

in Economics (Regular course), B.Ed., (Economics). The regular course would certainly be preferred for a candidate who obtained the Post

Graduate Degree by postal study. Apart from this, when the fifth respondent is having a B.Ed. in Economic, the appellant is having B.Ed. in

History. When the vacancy of the P.G. Assistant is with regard to the Economics subject, there is nothing wrong on the part of the fourth

respondent in selecting the fifth respondent as better qualified person who is possessing degrees of the requirement subject.

Mr. G.S. Thamby has referred to the judgments viz., in N. Ammad v. Manager, EMJAY High School and others, 1998 (6) SCC 647; in Orissa

Small Industries Corpn. Ltd. and Another Vs. Narasingha Charan Mohanty and Others, ; and in St. Mary''s Higher Secondary School, Kariakal,

represented by its Correspondent and Principal v. The Union of India rep. by its Secretary to the Government Education Department, Chief

Secretariat Buildings, Pondicherry-1, 2000 WLR 55 in support of his contention that the fifth respondent being a minority institution enjoying the

benefit of the guarantee enshrined under Article 30(1) of the Constitution of India and as such the Rules cannot be applied to the institution. We are

not inclined to enter into those question as it is purely an academic one. We find that even assuming the Rules are applicable, the fifth respondent is

better qualified person as found by the learned Single Judge. When on merits, the fifth respondent found to be a better qualified person, that would

be sufficient for us to dispose of the writ appeal. Hence we find no merits in the writ appeal and accordingly, the same is dismissed. No costs.

Consequently, the C.M.P. is closed.