AI Structured Summary
Not yet generated for this judgment
Judgment
S.S. Subramani, J.—Third Respondent is a School Assistant, Grade II in the Petitioner-School. Vacancy arose in the School for the post of School Assistant (Science). Third Respondent has been working as a Secondary Grade Teacher. He is a Graduate and has passed B. Ed. Even though the third Respondent had the requisite qualification fixed, the School did not think of appointing him to that post in view of the fact that the third Respondent was not vigilant in the performance as teacher. He achieved only poor results. It is also said that the Petitioner did not think of promoting the third Respondent to the newly created post and the fourth Respondent was preferred, who is also qualified to hold the same post. He is also a graduate in Science and also holds a degree in Education. Fourth Respondent has also previous experience in a post analogous to the post of School Assistant and has handled higher classes with credit in other schools. On the basis of the credentials of the fourth Respondent and also taking into consideration the previous experience, Petitioner appointed the fourth Respondent as School Assistant by direct recruitment.
The same was challenged by third Respondent by filing a petition before the Grievance Committee of Arch Diocese of Pondicherry and Cuddalore on 15.1.1993. Petitioner placed all documents before the Grievance Committee. The Grievance Committee did not think of interfering in the appointment of fourth Respondent. Thereafter, third Respondent filed an Appeal before second Respondent under Rule 7(iii) of the Government Aided Private School Teachers (Discipline, Punishment and Appeal) Rules, 1959, praying for setting aside the appointment of fourth Respondent as School Assistant and for directing the Management to consider the third Respondent for promotion to the post of School Assistant. Second Respondent allowed the Appeal of third Respondent and directed the Petitioner to appoint him as School Assistant. The same is challenged in this Writ Petition by Petitioner-School, wherein it has prayed for issuance of a Writ of Certiorari or any other appropriate writ., order or direction in the nature of a writ calling for the records relating to the proceedings of 2nd Respondent in No. 44956/GIAD/U-l/Edn./93-94 dated 30.6.1994, quash the same and pass such further or other orders as this Court may deem fit and proper.
In the various grounds raised in the Writ Petition, it is said that the School is a minority institution and the question as to who should be appointed to a post is really a matter governing the establishment and management of the School under Article 30 of the Constitution of India. It is further said that the Appeal filed by third Respondent itself was not maintainable, and second Respondent has also no jurisdiction to pass the impugned order. It is further said that the third Respondent cannot claim the post as of right. Usually only the Management selects a candidate, and it is only in rare cases the seat is filled by promotion. Even in the case of promotion, third Respondent can only have his name considered, but cannot insist that he should be appointed. Being a minority institution, when two persons are qualified to hold a post, Petitioner must be given a choice of appointing the suitable person. It is also said that as between third Respondent and fourth Respondent, a comparative assessment has been made, and third Respondent was found not suitable to hold the post and, therefore, the selection of fourth Respondent is correct.
Counter affidavit has been filed by third Respondent, disputing the claim put forward by Petitioner. According to him, he has got better experience than fourth Respondent, and during his entire career, not even a single memo has been issued to him stating that he is inefficient. It is also said that he has got more experience than the fourth Respondent. Third Respondent has qualified himself as a B. Ed, teacher even in the year 1988, whereas fourth Respondent qualified himself only in the year 1990. The contention that second Respondent has no jurisdiction to entertain the Appeal is also disputed. A further contention is taken that whenever a vacancy of School Assistant Grade II arises, mostly the same is filled up by the senior most teacher who is already working in the School. According to him, order of second Respondent is not liable to be interfered with, and the same is based on materials. The Authority has taken into consideration only the qualification and experience of third Respondent. Interest of justice also requires that the order of second Respondent should be confirmed. He prayed for dismissal of the Writ Petition.
Heard learned Counsel for all the parties.
One of the arguments that was raised by learned Counsel for Petitioner-School is that the second Respondent has no jurisdiction to pass the impugned order. After the fourth Respondent was appointed, third Respondent represented to the Grievance Committee. Since it did not take any decision, appeal was filed under Rule 7 (iii) of the Government Aided Private School Teachers (Discipline, Punishment and Appeal) Rules, 1959. The Appeal was presented before the Appellate Tribunal (Education Department), Pondicherry.
Learned Counsel for Petitioner brought to my notice Rule 6 in Annexure I of Government Aided Private School Teachers (Discipline, Punishment and Appeal) Rules, 1959, pertaining to the constitution of an Appellate Tribunal. That Rule says that all appeals against orders of the Punishing Authority will be heard by Appellate Tribunal consisting of the Director of Education (Chairman) and two non-official members, namely (i) a Manager of an Aided School (representing the Managers'' Association) and (ii) a Principal Headmaster of an Aided School (representing teachers), both to be nominated by the Chief Commissioner. For this purpose, the Managers'' Association as well as the Recognised Teachers'' Association of Aided Schools shall be asked to submit a panel of five names each out of whom the Chief Commissioner will nominate members of the Appellate Tribunal. The Manager and the Principal/Headmaster of a School to which the dispute relates shall not function as Members of the Appellate Tribunal when that case is heard. Rule 7 of that Annexure-I reads thus:
Appeal:
(i) No appeal shall lie against any order or punishment specified in Clause (i) of Rule I.
(ii) A teacher may make an appeal to the Appellate Tribunal in respect of penalties referred to in Clauses (ii) to (vii) of Rule I.
(iii) A teacher may also appeal to the Appellate Tribunal against an order of the Management which denies or varies to his disadvantage his pay, allowances and other conditions of service.
(iv) No appeal shall lie against the decision of the Appellate Tribunal.
Annexure I deals with Government Aided Private School Teachers (Discipline, Punishment and Appeal) Rules, 1959. On going by the relevant portions of Rules 6 and 7, and taking into consideration the purpose of the Rules, I do not think that an Appeal lies against an order refusing to promote a person. Nobody has got a right of promotion, unless such right is given by the Service/Rules, taking into consideration the seniority. The only right a candidate has is, consideration for promotion. If that be so, under Clause (iii) of Rule 7 (extracted above), it cannot be said that the Management has denied or varied the pay or allowances or conditions of service, to the disadvantage of the third Respondent. I do not think that a right to promotion is a condition of service. At the most, it may amount only to a legitimate expectation. Again, the variation or denial to the disadvantage of third Respondent must also be in the nature of punishment which alone enables the delinquent to file an appeal. Denial of promotion cannot be considered as a violation of conditions of service. If that be so, I do not think that an appeal lies to the second Respondent.
Another formidable argument was also advanced by learned Counsel for Petitioner regarding the jurisdiction of second Respondent to act as Appellate Authority. As per Rule 6 of the Rules referred to above, the Appellate Tribunal consists of Director of Education and two non-official members, one appointed by the Management of the Aided School and another by the Teachers'' Association. It is these Members who constitute the Tribunal. It is this Tribunal that has to decide regarding the maintainability of the Appeal. Second Respondent cannot act as Tribunal. In this case, neither the representative of the Management nor representative of the Teachers'' Association has heard the case. Second Respondent, in his capacity as Director of Education alone, has decided the matter. He is not acting as Chairman of the Tribunal.
When the Rules enjoin that the Tribunal consisting of Chairman and Members should hear the Appeal and decide the same, it follows that the Appeal has to be heard and decided only by the Tribunal, and not by a Member of the Tribunal. A Member by himself cannot be considered as a Tribunal. In that view, even the very hearing of the Appeal by second Respondent was without jurisdiction.
Coming to the merits of the case also, I do not think that the third Respondent has an arguable case before Court.
It is admitted by both sides that the Petitioner-School is a minority Institution. It has got a fundamental right under Article 30 of the Constitution to establish and maintain educational institutions of its choice. Right to manage includes the right to appoint a teacher to a particular post, of its choice. In this case, there is no Rule which prescribes that appointment to the vacancy must be only by promotion. In fact, even the third Respondent only says in para 6 of his counter, ''whenever a vacancy arose for the post of School Assistant Grade II, mostly the same was filled up by promoting the ''seniormost teacher''. So he is not relying on any Rule, on the basis of which he makes the claim. Petitioner has a definite case that appointment to such post is only by selection, taking into consideration the better qualification and experience of a teacher. It is the definite case of the Management that all along the practice of the Management was to appoint only persons by direct recruitment. When the third Respondent himself has no case that his claim is not based on any particular Rule, and going by his own affidavit, it is clear that the admission could be made by direct recruitment, there is no scope for claiming that right, as if he is entitled to be promoted. The only right which the third Respondent has, is that his name must also be considered for that post, if found eligible.
Being a minority institution, it is for the Management to decide as to who should be appointed to that post. In a recent decision of the Supreme Court reported in N. Ammad Vs. The Manager, Emjay High School and Others, the question that the came for consideration was, whether the seniormost teacher is to be appointed as Headmaster in a Minority School. While considering the same, in para 15 of the judgment, Their Lordships have held thus:
A Constitution Bench of seven Judges of this Court in Kerala Education Bill, 1957, Re. has examined the constitutional validity of the bill which was the precursor to the Act when the President of India had sought the advice of the Supreme Court under Article 143 of the Constitution. One of the propositions laid down by the said Constitution Bench in the said decision is this: the right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution.
In paragraph 21, Their Lordships followed the opinion expressed by the Honourable Supreme Court in regard to the Kerala Education Bill, referred under Article 143 of the Constitution of India (reported in AIR 1958 SC 956 In re. Kerala Education Bill), wherein Justice H.R. Khanna has adopted a still broader view that even selection of teachers is of great importance in the right to manage a School. In para 21, Their Lordships have quoted the very words of the learned Judge. That portion reads thus:
The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainlly be not denied such right of selection and appointment without infringing Article 30(l).
Regarding the appoint of Headmaster, Their Lordships of the Honourable Supreme Court have said thus:
...The management of a Minority School is free to find out a qualified person either from the staff of the same School or from outside to fill up the vacancy. We may point out, in this context that the Division Bench in Henry Gomez Case ILR (1994) 1 Ker 808 has quoted with approval the following observations of another earlier Division Bench decision of the same High Court in Manager Corporate E Agency v. State of Kerala (1990) 2 Ker. L.T. 240 :
The right to appoint the Headmaster of a School or the Principal of a College, is one of prime importance in the administration of the institution. The right of the minority to administer an Educational Institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline and the efficiency of the teaching....
(Underlined portion in Italics in the Original Reports).
According to me, the principle regarding the appointment of Headmaster equally applies to the appointment of teacher also when the. same is not filled up by seniority. In the case of selection and direct recruitment, third Respondent will have only a right to be considered, and he cannot have a claim of right, and insist that he should be promoted to that post. When two qualified persons are available before the Management, it is for the management to decide as to who should be considered. In this case, the Management has a definite case against the third Respondent that even though he has got experience and also Educational qualification, his performance is not good. In all such cases, it cannot be said that it is not a case of adverse remark against third Respondent. It is only a consideration of inter se suitability between Respondents 3 and 4. Except the fact that the third Respondent is not selected, he is not in any way affected in his service as a teacher. The Honourable Supreme Court has held in the case referred to supra, that the right of the minority to administer an Educational Institution of its choice requires the presence of a person in whom they can repose confidence, who can maintain tradition, discipline and efficiency of teaching. If the Management could find these qualifications in the fourth Respondent, that cannot be considered as adverse remarks against third Respondent.
Second Respondent rejected the plea of Petitioner on the ground that third Respondent has not been communicated about this adverse remark, and so far he has not been served with any memo, and he has a blemishless service. I do not think that the second Respondent has approached the question in the proper perspective.
In the result, the impugned order is quashed. The Writ Petition is allowed. No costs. Connected W.M.P. is closed.