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Judgment
K. Raviraja Pandian, J.—The order dated 25.7.2006 passed by the learned single Judge in M.P. No. 2 of 2006 in W.P. No. 22967 of
2006 granting consequential final order at the time of admission itself by way of interim order has been assailed in this writ appeal.
The 1st respondent herein filed writ petition for issuance of writ of certiorarified mandamus to call for the records of the appellant in proceedings
Na.Ka. No. 1586/2006/K.7 dated 30.06.2006, provisional seniority list for preparing panel of candidates for promotion as Head-master and
quash the same and direct the appellant to promote the 1st respondent herein as Headmaster, Corporation High School with effect from
13.5.2006 based on the existing panel drawn by the appellants dated 10.8.2005 with all monetary and service benefits.
The 1st respondent filed the said writ petition inter alia contending that he was working as a P.G. Assistant in Corporation, Boys Higher
Secondary School, Coimbatore. The next avenue of promotion is to the post of Head Master. The 1st respondent qualified himself in May, 2004
for promotion to the post of Head Master. The appellant Corporation, by its proceedings dated 10.08.2005, issued a seniority list for promotion
to the post of Head Master in which the 1st respondent was placed at Serial No. 7. The list was valid upto one year i.e., 09.08.2006. The 1st
respondent earlier filed writ petition in W.P. No. 6771 of 2006 seeking for direction directing the appellant to consider and pass orders on the
representation made by the 1st respondent on 19.12.2005. In that representation, the 1st respondent represented that one Dhanammal,
Headmistress has reached the age of superannuation on 30.11.2005, but her services were extended till the academic year upto 31.5.2006. In the
vacancy to be caused on the superannuation of the said Dhanammal, the 1st respondent should be promoted to the post. That writ petition came to
be disposed of with a direction to consider the 1st respondent if he is otherwise eligible. In the mean time the said Dhanammal expired on
13.5.2006. The 1st respondent once again made a representation on 15.5.2006 to promote him as Head Master. While the representation was
pending, the appellant, by his proceedings dated 30.06.2006 prepared seniority list as on 01.01.2006 in which the 1st respondent was placed at
serial No. 9. According to the 1st respondent, the preparation of seniority list was highly illegal and the 1st respondent should have been promoted
to the post of Head Master. On that basis, he filed the present writ petition seeking for the relief of certiorarified mandamus to quash the
provisional seniority list dated 30.06.2006 and consequently direct the appellant to promote him as Head Master of the Corporation School with
effect from 13.05.2006 based on the existing panel dated 10.08.2005. That writ petition was admitted, and taking note of the representation of the
learned Counsel that the 1st respondent was placed at Serial No. 7 in the seniority list, the said panel was still alive and on the expiry of the said
Dhanammal, the 1st respondent was entitled to promotion to the post of Headmaster, an interim direction to the appellant Corporation to promote
the 1st respondent based on the panel dated 10.8.2005 in the existing vacancy was granted. The correctness of the said order is now canvassed in
the writ appeal.
Learned Counsel appearing for the appellant assailed the impugned order by contending that the competent authority, the appointment
committee by the resolution dated 15.12.2006 had approved the names of the 1st six persons towards the actual number of vacancies in existence.
The panel drawn out of the seniority list was thus already exhausted. The vacancy caused due to the death of one headmaster on 13.05.2006 has
to be considered only for the year 2006. It is only in that process of filling up the said vacancy, the provisional seniority list dated 30.06.2006 was
published. The 1st respondent, without filing his objections, if any, to the said list, filed the writ petition. The impugned direction granted in favour of
the 1st respondent is against all norms of settled principles of law and in violation of the basic principles of natural justice.
Learned Counsel appearing for the 1st respondent has reiterated the averments contained in the affidavit, which are extracted above.
We heard the learned Counsel on either side and perused the materials available on record.
In the earlier writ petition filed by the 1st respondent in W.P. No. 6771 of 2006, an order was passed by D. Murugesan, J., on 9.3.2006, the
relevant portion of which reads as follows:
...3. In the matter of appointment to the post of Headmaster by promotion, it is not a rule that the seniority alone should count, as the post of
Headmaster is to be filled up only by considering the comparative merit and ability of all the eligible candidates and when both the merit and ability
are approximately equal, then the seniority has to be taken into consideration. Though the petitioner (1st respondent herein) claims that he is senior
and consequentially he should be promoted as Headmaster, I am not inclined to accept the said submission in view of the above principle, which is
in accordance with the rules. Nevertheless, the post of Headmaster is due to become vacant in the end of the present academic year. In the event
the petitioner (1st respondent herein) is also eligible, he could be considered along with the other eligible candidates on the basis of merit and
ability....
One additional factor for the 1st respondent to file the present writ petition was that the provisional seniority list prepared on 30.06.2006, the
1st respondent was arrayed at Serial No. 9. As averred by the 1st respondent in the sworn affidavit, while issuing the list dated 30.06.2006, as on
01.01.2006, the appellant has called for objections, if any, to the list from the teachers included in the list. If the 1st respondent is having any
objection in arraying him in Serial No. 9, he could have very well objected to the same. However, he filed the present writ petition to quash the list
by way of certiorari and consequently sought for a direction by way of mandamus in a positive manner to promote him as Headmaster, that too,
with effect from 13.05.2006.
In all services, whether public or private there is invariably a hierarchy of posts comprising of higher posts and lower posts. Promotion, as
understood under the Service Law Jurisprudence, is advancement in rank, grade or both and no employee has right to be promoted, but has a
right to be considered for promotion. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former,
greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. Useful reference can
be had to the judgment of the Supreme Court in the case of State of Uttar Pradesh v. Jalal Uddin and Ors. reported in 2004 (7) Sup 244 , K.
Samantaray Vs. National Insurance Co. Ltd., and Sant Ram Sharma Vs. State of Rajasthan and Another, .
If the above said legal position is applied to the present case, we are not able to approve the grant of impugned order at the stage of admission
of the writ petition itself. The final relief sought for in the writ petition has been granted by way of interim relief, that too without hearing the
appellants. Even the grant of main relief is appeared to be highly debatable. By virtue of the interim order granting the main relief, the teachers, who
are arrayed over and above the 1st respondent in the panel, are virtually condemned because of the overtaking of the 1st respondent over and
above them. Assuming for the sake of this case, the 1st respondent is having hundred percent case and he is so confident of succeeding in the writ
petition, the order of the present nature cannot be granted, as it would otherwise amount to granting the final relief, without hearing the persons
adversely affected by the impugned order. There is no prejudice caused to the 1st respondent if he waits till the final orders are passed. If a final
order is passed in favour of the 1st respondent, he would be placed in appropriate position restoring his seniority and all the benefits to which he is
entitled, would be granted to him. But in the negative, if the 1st respondent is not able to succeed in the main writ petition, till final orders are
passed the 1st respondent has been placed in an advantageous position for which he is not legally entitled to on ultimate analysis of the case.
Writ of mandamus can be regarded as a mandatory injunction in Civil Jurisprudence. It is very well established principle of law that a
mandatory injunction can be granted only after hearing the other parties and that too, taking into consideration of the prima facie case, balance of
convenience and irreparable loss and injury. None of the ingredients for granting interim order even after hearing the other side is available in this
case. Useful reference can be had to the judgment of the Supreme Court in the case of Bharat Sanchar Nigam Limited v. Prem Chand Premi
reported in (2005) 13 SCC 505.
For the above said reasons, the writ appeal is allowed and the order dated 25.7.2006 passed by the learned single judge in M.P. No. 2 of
2006 in W.P. No. 22967 of 2996 is set aside. It is open to the parties to approach the appropriate Court to get the writ petition disposed of an
early date. No costs. Consequently, the connected M.P. No. 1 of 2006 is closed.