Saturday, August 13, 2011

The correctness of the order dismissing the writ petition for a Mandamus, for a direction to the respondents 1 to 3, to reject the appointment order of D.Retnadhas, dated 10.07.2006 sent by the Manager and Correspondent of the Salvation Army Higher Secondary School, Nagercoil, the fifth respondent is challenged in this appeal.


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 24/04/2008

CORAM
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
AND
THE HONOURABLE MR. JUSTICE S.MANIKUMAR

W.A.(MD)No.352 of 2008

Shirley Water             ... Appellant

vs.

1.The Director of School Education,
   Chennai - 600 006.

2.The Chief Educational Officer,
   Nagercoil-1,
   Kanyakumari District.

3.The District Educational Officer,
   Nagercoil,
   Kanyakumari District

4.The Manager/Territorial Commander,
  The Salvation Army Higher Secondary
  School, Territorial Head Quarters,
  High Ground Road, Maharaja Nagar Road
  Post, Tirunelveli District.

5.The Manager/Correspondent,
   The Salvation Army Higher Secondary School,
   Vetturnimadam, Nagercoil,
   Kanyakumari District. ... Respondents

Writ Appeal filed against the order dated 26.06.2007 passed in W.P.No.8131
of 2006 on the file of this High Court.

!For Appellant        ... Mr.R.Vijayakumar
^For Respondents ... Mr.D.Gandhiraj
  Government Advocate

:JUDGMENT

(Judgment of this Court is delivered by Justice S.MANIKUMAR)

Mr.D.Gandhiraj, learned Government Advocate, takes notice for the
respondents 1 to 3. By consent, the writ appeal is taken up for final disposal
at the admission stage itself.

2.The correctness of the order dismissing the writ petition for a
Mandamus, for a direction to the respondents 1 to 3, to reject the appointment
order of D.Retnadhas, dated 10.07.2006 sent by the Manager and Correspondent of
the Salvation Army Higher Secondary School, Nagercoil, the fifth respondent is
challenged in this appeal.

3.The appellant is working as a Secondary Grade Assistant in the Salvation
Army Higher Secondary School, Nagercoil, the fifth respondent. According to her,
she has passed M.Sc., Agri (Botany) and M.Ed., degree and therefore, qualified
to hold the post of P.G.Assistant(Botany) from 11.12.2005. She submitted a
representation dated 07.11.2005 to the fifth respondent to consider her
seniority and experience in the fifth respondent school and appoint her as
P.G.Assistant(Botany). However, without considering her request, the Manager and
Correspondent of fifth respondent  School appointed one D.Retnadhas as
P.G.Assistant (Botany) and the appointment order was sent for approval to the
Chief Educational Officer, Nagercoil, the second respondent herein.  Aggrieved
by the appointment of the said teacher, the appellant has sent another
representation dated 15.07.2006 to the second respondent not to accord approval
for the appointment of the said D.Retnadhas without considering the appellant's
promotion.

4.The grievance of the appellant was that as the appointment was against
the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules,
1974 (hereinafter referred to as 'the Rules') and that the fifth respondent
ought to have promoted the appellant as P.G.Teacher as per Rule 15 (4) (ii)(i)
of the Rules.  Besides, the appellant also contended that she was the next
qualified and eligible teacher for being promoted to the said post.

5.The fifth respondent, Manager/Correspondent of the Salvation Army Higher
Secondary School, Nagercoil, in his counter affidavit has stated that the school
is a minority school receiving grant in aid from the State Government and
therefore, the right of appointment in a sanctioned post is solely vested with
the management of the minority school.


6.It was further stated that Mr.D.Retnadhas was appointed in the Salvation
Army Higher Secondary School , Territorial Head quarters, High Ground Road,
Maharaja Nagar Road Post, Tirunelveli District the fourth respondent herein on
01.06.1992 and was senior to the appellant.  It is also the case of the
respondents that while the said D.Retnadhas was working as B.T.Assistant in the
fourth respondent school, the appellant was working only as a Secondary Grade
Teacher and therefore, she is not qualified to be appointed as P.G.Assistant
(Botony) in the vacancy caused due to the retirement of a P.G.Assistant Teacher.
The fifth respondent has further submitted that the  appointment to the said
vacancy is not by way of promotion from the 5th respondent School and therefore,
Rule 15(4) of the said Rules is inapplicable.

7.The learned single Judge, taking into consideration, the applicability
of Rule 15(4)(ii)(i) of the Rules which deals with qualifications, procedure to
be followed for appointment/promotion of teachers, the power of the management
of a minority institution to appoint teachers in respect of corporate body
running more than one school and also to the fact that the said D.Retnadhas was
working as a graduate teacher (i.e.,) a higher post than that of the appellant
found that there was no infringement of Rule 15(4) of the Rules in the process
of promotion. The learned single Judge, on scrutiny of Rule 15(4) further
observed that there is no automatic promotion of any qualified person, but the
rule clearly contemplates that promotion shall be made on the grounds of merit
and ability  and seniority will be considered only when merit and ability are
approximately equal.  Considering the fact that the said D.Retnadhas had been
selected from among all the qualified candidates and holding a higher post, the
learned single Judge dismissed the writ petition. Though, the appellant
challenged the appointment of said D.Retnadhas, he was not made as party in the
writ petition.

8.Learned counsel for the appellant, reiterating the contentions in the
memorandum of appeal submitted that the learned single Judge ought to have seen
that the appellant was more qualified than D.Retnadhas for the post of
P.G.Assistant (Botany). He further submitted that when the appellant was fully
qualified to be promoted to the post of P.G.Assistant (Botany), appointment of
D.Retnadhas from another school is in violation of Rule 15(4) of the Rules.  He
further submitted that the learned single Judge ought to have seen that the
school committee of the 5th respondent school has not obtained any prior
permission from the Chief Educational Officer before appointing the said
D.Retnadhas who was working in other school.

9.Mr.D.Gandhiraj, learned Government Advocate, appearing for the
respondents submitted that in respect of  a corporate body running more than one
school, all the schools under the control and management of the corporate body
shall be treated as one unit for the purpose of the Rule 15(4) (ii)(i) of the
Rules and therefore, the post of P.G.Assistant in fifth respondent school can be
filled up by appointing a teacher working in any of the schools run by the
fourth respondent namely, the Salvation Army, with their headquarters at
Tirunelveli.  He further submitted that as between the appellant and the said
D.Retnadhas, the latter is senior to the appellant. Besides, the writ petition
itself is not maintainable for non-joinder of the said D.Retnadhas  who is a
necessary and proper party.

10.Heard the learned counsel appearing for the parties and perused the
material available on record.

11.Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation)
Rules, 1974 envisages the procedure to be followed for appointments to various
categories of teachers. The qualifications, condition of service of teachers and
other persons are also set out in this Rule.  As per Rule 15(4) (ii) (i)
promotion shall be made on the grounds of merit and ability and seniority being
considered only when merit and ability are approximately equal. The 5th
respondent school is one of the schools, run by the Salvation Army which is a
corporate body recognised by the educational authorities.

12.A reading of the above said rule makes it clear that in respect of
corporate body running more than one school, the schools coming within the
control and management of the corporate body shall be treated as a single unit
for the purpose of this Rule (i.e.,) for appointment to various categories of
teachers. The contention of the 5th respondent school that the said D.Retnadhas
was appointed in the fourth respondent school at Nagercoil on 01.06.1992 and
that he was working as B.T.Assistant, holding a higher post than that of the
appellant, is not disputed by the learned counsel for the appellant. Perusal of
the affidavit filed in support of the writ petition further discloses that the
appellant was appointed as middle school assistant in the fifth respondent
school only on 29.06.1993 and that he is one year junior to the person appointed
as P.G.Assistant.

13.Therefore the finding of the learned single Judge that there is no
infringement of Rule 15(4) in the process of promotion of the said D.Retnadhas
cannot be found fault with.  Further, the writ petition is liable to be rejected
for non-joinder of necessary and proper party.

14.In Rajbir Singh, HFS-II Vs. State of Haryana and another reported in
1996(2) SCC 19, the dismissal of a writ petition, challenging the inter se
seniority, without impleading the other persons was confirmed by the Apex Court.

15.In Baskaran Vs.The Commissioner of College Education and 2 others
reported in 1995 (2) CTC 513, a Division Bench of this Court following the
judgment of Prabodh Verma's case (AIR 1985 SC 167), held that the remedy under
Article 226 of the Constitution of India is equitable and discretionary and the
persons who would be vitally affected by the decision are necessary parties. The
Court should dismiss the writ petition, if necessary parties are not impleaded
in the writ petition.

16.In yet another decision in Ramarao and others Vs. All India Backward
Class bank Employees Welfare Association and others reported in 2004 (2) SCC 76,
the Apex Court reiterated the legal position and held that
"...An order against the person without impleading him as a party and
without giving an opportunity of hearing must be held to be bad in law. The
appellants herein, keeping in view of the fact that by reason of the impugned
direction, the orders of promotion effected in their favour had been directed to
be withdrawn, indisputably, were necessary parties. In their absence, therefore,
the writ petition could not have been effectively adjudicated upon.  In the
absence of the 'promotees' as parties, therefore, it was not permissible for the
High Court to issue the directions by reason of the impugned judgment."

17.Concedingly, the appellant who has sought for an equitable and
discretionary remedy from this Court has failed to implead the promotee as party
respondent in the writ petition. As rightly observed by the learned single
Judge, the writ petition is not maintainable for non-joinder of necessary and
proper party also. We do not find any infirmity in the order.  There are no
merits in the writ appeal and the same is dismissed.  No costs.

sms

To
1.The Director of School Education,
   Chennai - 600 006.

2.The Chief Educational Officer,
   Nagercoil-1,
   Kanyakumari District.

3.The District Educational Officer,
   Nagercoil,
   Kanyakumari District

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