The petitioner has filed this writ petition for issuance of Writ of Certiorarified Mandamus calling for the records from the 1st and 2nd respondents connected with the impugned panel as on 01.01.09 passed by the 1st respondent dated 20.01.09 and the rejection of appeal passed by the 2nd respondent in the impugned proceeding NA.KA.NO 5579/aa5/2008 dated 21.04.09 and quash the same and consequently direct the 2nd respondent to promote the petitioner as middle School Headmaster as per the rules.
2.The instant writ petition is filed challenging the seniority panel list published by the 1st respondent and consequential rejection of appeal of the petitioner by the 2nd respondent in respect of the impugned proceedings NA.KA.No.5579/1995/2008 dated 21.04.09 and consequential direction to the 2nd respondent to promote the petitioner as Middle School Head Master as per the rules.
3.I have perused the impugned orders, documents and counter affidavit of the respondents and heard the arguments on either side. It is seen from the records that the petitioner was appointed as secondary Grade Teacher on 27.09.1985 in the school coming under the control of Periyakulam Municipality. The petitioner possessed M.A., B.Ed., degrees and therefore the petitioner was qualified for promotion to the post of Middle School Head Master. The petitioner?s name was placed in serial No.1 in the Seniority list of Secondary Grade Teacher list as on 01.01.2008. Therefore the petitioner was waiting for his promotion as Middle School Head Master. When the facts are the being so, the 1st respondent published seniority list for promotion to the post of Middle School Head Master on 01.01.09 wherein the 4th respondent Vijayalakshmi name was found first in the promotion panel list and the 4th respondent is a vocational teacher. On seeing the same the petitioner submitted his objection to the 1st respondent. Since the 1st respondent has not considered the claim of the petitioner, he made an appeal to the 2nd respondent and the same was rejected on 21.04.09 by the quoting the circular dated 15.11.01 of the 3rd respondent.
4.The Learned Counsel for the petitioner contented that the rule relating to the promotion to the post of the Middle School Headmaster is from the categories of the clause II or III of special rules for the Tamil Nadu Elementary Education Subordinate Service. The Secondary Grade Teacher comes under the category two of Clause III of the Elementary Education Subordinate Service Rules. In this context the learned counsel for the petitioner submitted that since no eligible person available under clause II of the service and the petitioner fall under clause III of the service, he was eligible for the appointment to the post of Middle School Head Master. The above said position was further reiterated in G.O.Ms.400 Education Department dated 25.05.1995. A perusal of the above said G.O clearly shows that B.Ed., grade teachers and Tamil Pandit has to be considered first and if no person is available in the above two categories, the senior most secondary grade teacher working in the seniority unit has to be considered.
5.The learned counsel for the petitioner further contented that neither the rules nor subsequent G.O. provide for the appointment to the post of Middle School Headmaster from the category of the Pre-vocational instructors. However, the 1st respondent has included the name of the 4th respondent in the impugned panel dated 20.01.09 for the promotion to the post of Middle School Headmaster.
6.In this case, the 2nd respondent has relied upon a circular dated 15.01.01 issued by the Director of the School Education in his impugned order. A close perusal of the said circular in paragraphs 14 (1) and 14 (2) reveals that full time Pre-vocational teacher who have passed Secondary Grade Teacher Training course has to be appointed as Secondary Grade teacher by appointment by transfer and such Pre-vocation teachers has to be considered for promotion to the post of Primary School head master. Therefore the above circular dated 15.01.2001 mentioned in the impugned order deals with only the promotion to the post of Primary School head master not middle school head master.
7.The learned counsel for the petitioner has further contented that any administrative instructions or letter or circular can?t over ride the rules and regulations already framed and therefore the respondents can?t rely upon a circular of the 3rd respondent to support their case and reject the case of the petitioner. The Learned Counsel for the petitioner has also relied upon two judgments in the above said proposition to support his case.
1. 1972 (2) SCC 188 in the case of State of Hariyana, ETC. ETC ?Versus- Shamsher Jang Bahadur, ETC, wherein it is held that the instructions issued by the undoubtedly affect the promotion of the concerned officials and therefore, they relate to their conditions of service. The instructions as to the qualifications already prescribed by the rules framed under
Article 309, by adding, the Government has really altered the existing conditions of service. The Government rules are not competent to alter the rules framed under
Article 309, by means of administrative instructions.
2. 2007 Writ L.R 521 in the case of K.Sampath - Versus - The State of Tamil Nadu, rep by the Secretary to Government And others, wherein it is held that the order is totally illegal since the government order issued with the executive power of he Government in the name of Governor cannot be clarified by a letter of the secretary to the Government.
8.Per contra, the Learned Government Advocate submitted that the name of the 4th respondent was placed above the petitioner, since the 4th respondent is more qualified than the petitioner. The 4th respondent has B.lit (Tamil) as on January 1987, B.Ed., qualification as on September 1990, whereas the petitioner has B.A (Political Science) and M.A (Political Science) as on April 2000, and B.Ed., as on May 1993. The petitioner had obtained M.A Degree in Political Science subject. Which does not find a place in the time table for the students I to VIII.
9.The Learned Government Advocate appearing for the respondents 1 to 3 further submitted that G.O.Ms.No:400 provides as follows: ?(4)(1) when vacancies arise in the posts of Head Master of Middle School (due to death, retirement, and such resignation and due to creation of new posts etc) such vacancies shall be filled up from among B.T. Assistant/Tamil pandits appointed prior to 1.6.1988. If no such suitable and qualified persons are available then it shall be filled up among senior most of the following categories of teachers by drawing a combined seniority list.
a) B.Ed Grade Teacher appointed in the Middle school
b) Tamil Pandit appointed in the Middle school
c) Primary School Head Master, Qualified for B.Ed or Tamil Pandit?
10.If no qualified teachers in the categories are available in the unit, the senior most among persons working as secondary Grade Teachers or in other cadres of trained teachers but qualified for B.Ed or Tamil Pandit drawing the similar scales of pay of secondary Grade Teachers may be considered, for promotion as Middle School Head Master.
11.The Learned Counsel appearing for the 4th respondent submitted that the promotion given to the 4th respondent is perfectly correct and the same was in accordance with law and no interference is called for. He prayed for the dismissal of this writ petition.
12.As discussed above, the petitioner herein was appointed as Secondary Grade Teacher on 27.091985 and senior most teachers in the secondary Grade Teacher?s seniority list. Whereas, though the 4th respondent has passed Tamil Pandit, she had not worked as Tamil Pandit and continued to work as Pre- vocational instructed till her name included in the panel, without her name in the seniority list. Therefore as per Special Rules for the Elementary Educational Service the 4th respondent is not eligible for promotion to the post of Middle School head master as she is a Pre- Vocational instructor and her name finds place in the clause VI of the service rule. As per as other argument of the respondents 1 to 3 that the 4th respondent alone is entitled / eligible to be promoted as Middle School Headmaster as per the circular of the 3rd respondent dated 15.11.2001 can?t be accepted. As per the Judgments mentioned supra, a circular or administrative instruction of the authorities can?t prevail over the statutory act and rules. Therefore I am of the considered opinion that the promotion given to the 4th respondent on the basis of the above circular can?t be sustained. However, this court is not going to disturb the promotion given to the 4th respondent as Head Master of Middle School for the reason that the petitioner herein has also been promoted as Middle School Head Master and he is working as Head Master of Middle School as on today.
13.During the course of the argument Learned Counsel for the petitioner submitted that during the pendency of this writ petition, the petitioner was also promoted as middle school head master on 28.05.13 and continued to work till date. Therefore the Learned Counsel for the petitioner fairly submitted that since the petitioner was already promoted, his date of promotion may be advanced notionally without back wages the date on which his junior 4th respondent got promoted on 23.05.2009. The above submission of the Learned Counsel for the petitioner stands accepted.
14.Therefore, for the foregoing discussions, I am of the considered opinion that the petitioner is entitled for promotion as middle school head master from 23.05.09 onwards and the respondents 1 to 3 herein are directed to give notional promotion to the petitioner as middle school head master from 23.05.09 and the same shall be entered into his service register.
15.In the result:
(a) this writ petition is allowed by setting aside the impugned orders of the respondents 1 and 2 dated 20.01.2009 and 21.04.2009 respectively;
(b) the respondents 1 to 3 are hereby directed to give notional promotion to the petitioner dated 23.03.2009 and the same shall be entered into the Service Registrar;
(c) the said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petition is closed.
To
1.The Assistant Elementary Education Officer, Periyakulam Municipality, Periyakulam, Theni District.
2.The District Elementary Educational Officer, Theni District, Theni.
3.The Director of Elementary Education, D.P.I. Campus, Chennai..