D.HARIPARANTHAMAN, J The appellant was a Headmistress in a high school under the control of the second respondent. She was promoted to the post of Headmistress of Higher Secondary School from High School by the second respondent, by an order, dated 01.09.2008. The said order was challenged by the first respondent herein in W.P(MD)No.8188 of 2008. The writ petition was allowed by the learned single Judge on 28.05.2009. The present appeal is against the said order.
2.We have heard Mr.C.Selvaraju, learned Senior Counsel for the appellant, Mr.V.Selvaraj, learned counsel for the first respondent, Mr.M.Sureshkumar, learned counsel for the second respondent and Mr.R.Janaki Ramulu, learned Special Government Pleader appearing for the third respondent.
3.The special rules for the Tamil Nadu Higher Secondary Educational Service framed under
Article 309 of the Constitution of India governs the matter of promotion to the post of Headmaster in Higher Secondary Schools. The Higher Secondary School Headmaster belongs to Class-I service under the Rules. The Post Graduate Assistant in languages belongs to Category-I of Class II service and the Post Graduate teacher in academic subjects belongs to Category II of Class III service. The inducted teachers at Higher Secondary Schools belong to Category III of Class II service. The vacancies arising in Class-I service, namely, the Headmasters in Higher Secondary Schools, are to be filled in the ratio of 2:5:2, i.e., two Headmasters in High Schools by recruitment by transfer, 5 Post Graduate Assistants by promotion and 2 inducted teachers by promotion. Further, more importantly, while ensuring the proportion of appointment in the service, cycle for such appointment to the post of Headmaster in the Higher Secondary Schools is also provided in the Special Rules.
4.The relevant rule in this case is extracted hereunder: "i)Vacancies arising in Class I of the service shall be filled up so as to ensure that the proportion of appointment in the service in the said class by recruitment by transfer/by promotion from Categories 1 and 2 of Class II and Class III taken together and by promotion from Category 3 of Class II respectively be in the ratio of 2:5:2 and the cycle for such appointment shall be as follows:
By recruitment by transfer 1-H.M. of High School By promotion from Categories 1 and 2 1-P.G Assistant of Class II and Class III By promotion from Category 3 of Class II 1-Inducted teacher By recruitment by transfer 1-H.M.of High School By promotion from Categories 1 and 2 of 1-P.G. Assistant Class II and Class III By promotion from Category 3 of Class II 1-Inducted teacher By promotion from Categories 1 and 2 of 1-P.G. Assistant Class II and Class III By promotion from Categories 1 and 2 of 1-P.G. Assistant Class II and Class III By promotion from Categories 1 and 2 of 1-P.G. Assistant Class II and Class III Provided that if no sufficient number of qualified and suitable candidates are available for appointment by a particular method, such vacancies shall be filled in by the other method prescribed".
5.It is an admitted fact that since there are no availability of inducted teachers, the appointment to the post of Headmasters in Higher Secondary Schools are only from two sources, namely, the Headmasters in High Schools and Post Graduate Assistant in Higher Secondary Schools.
6.The aforesaid Rule makes it very clear that while maintaining the proportion, the cycle for such appointment shall also be followed.
7.As per the above rule, when the post of Headmaster of Higher Secondary Schools run by the Corporation was sought to be filled up, Tmt.Janaki, High School Headmaster, was promoted on 22.08.2006 as against the first point in the cycle. The second point was to go to a P.G.Assistant and accordingly, one Mrs.D.Vellaithai, P.G.Assistant, was promoted on 20.07.2007. The third post should go to an inducted teacher. Since, no inducted teacher is available, it was to go to the next cadre viz., the High School Headmaster. Accordingly, Mr.Sundarraj, High School Headmaster, was promoted on 07.09.2007. The next point was to go to a P.G.Assistant and accordingly, Mrs.Radha, P.G.Assistant, was promoted on 05.06.2008. The next point in the cycle should go to an inducted teacher. Since, no inducted teacher is available, it had to go to a P.G.Assistant and accordingly, Tmt.Manjula, P.G.Assistant, was promoted on 05.06.2008. Thereafter, the next post had to go to a P.G.Assistant and accordingly, Tmt.Kalyani, (not the respondent), P.G.Assistant was promoted on 05.06.2008 and again, the next post went to a P.G.Assistant and accordingly, Tmt.Sivakami, P.G.Assistant, was promoted on 02.09.2008. This is how the cycle was operated and 2:5:2 ratio also was maintained.
8.The aforesaid promotions as per the cycle are given in a tabular form, as follows, for easy appreciation:-
By recruitment by transfer Tmt.Janaki, H.M. of High School By promotion from Categories 1 and 2 Mrs.D.Vellaithai, P.G Assistant of Class II and Class III By promotion from Category 3 of Class II Inducted teacher (not available) By recruitment by transfer Mr.Sundaraj, H.M.of High School By promotion from Categories 1 and 2 Mrs.Radha, of Class II and Class III P.G. Assistant By promotion from Category 3 of Class II Inducted teacher (Not Available) By promotion from Categories 1 and 2 Mrs.Manjula, of Class II and Class III P.G. Assistant By promotion from Categories 1 and 2 Mrs.Kalyani(not the respondent) of Class II and Class III P.G. Assistant By promotion from Categories 1 and 2 Mrs.Sivakami, of Class II and Class III P.G. Assistant
9.As stated above, Tmt.Manjula, P.G.Assistant, was promoted on 04.06.2008. But after joining the promoted post, she sought reversion and her request for reversion was accepted and by an order dated 26.06.2008, , the second respondent reverted her from the post of Headmistress of Higher Secondary School to the post of P.G.Assistant. From the files, it is seen that she relinquished her right for promotion to the post of Higher Secondary School Headmaster for future, even while seeking reversion.
10.After the reversion of Tmt.Manjula, the appellant who was a Headmaster in a High School was promoted on 02.09.2008 in the cycle meant for High School Headmaster. The said promotion was challenged by the first respondent in W.P(MD)No.8188 of 2008 on the ground that she was promoted against the vacancy that was caused due to the reversion of Tmt.Manjula, a P.G.Assistant and that therefore, the first respondent should have been promoted in the said vacancy.
11.The learned single Judge held that the ratio 2:5:2 would be maintained, only if the vacancy that was caused due to the reversion of Tmt.Manjula, P.G.Assistant, is filled by another P.G.Assistant. It was further held that the second respondent proceeded on a wrong notion that once promotion was given as per the cycle, a post that falls vacant, consequent on resignation has to be filled up by the next cadre as per the cycle. According to the learned single Judge, the vacancy was not due to resignation but due to reversion. Hence, the learned Judge held that the vacancy had to be filled from the cadre of P.G.Assistant.
12.The learned Senior Counsel for the appellant assails the said reasoning of the learned single Judge on the ground that while the rule contemplates maintaining the proportion of 2:5, the rule also provides that the cycle has to be followed. The Senior Counsel contended that upon the promotion of Tmt.Manjula, P.G.Assistant, as per the cycle, the slot meant for P.G.Assistant got exhausted and the next vacancy has to be filled by following the cycle.
13.On the contrary, Mr.V.Selvaraj, learned counsel for the first respondent, sought to sustain the order of the learned single Judge and argued that since Tmt.Manjula became the P.G.Assistant on reversion, the post should be filled up only by another P.G.Assistant and not by High School Headmaster. The learned counsel further argued that in order to maintain the proportion of 2:5, on the reversion of Tmt.Manjula from the post of Headmistress to P.G.Assistant, another P.G.Assistant should be promoted as Headmaster of Higher Secondary Schools.
14.The learned counsel for the first respondent while citing the following decisions, fairly stated that the decisions are not directly on the point. "(i) In A.K.Subraman and others Vs. Union of India and others reported in 1975 1 SCC 319,
(ii) In N.K.Chauhan and others Vs. State of Gujarat and others reported in AIR 1977 SCC 251,
(iii) In P.G.Institute of Medical Education & Research etc., Vs. K.L.Narasimhan and another reported in AIR 1997 SC 3687,
(iv) In Gonal Bhimappa Vs. State of Karnataka reported in 526 SLR 1987, in Nyadar Singh Vs. Union of India and others reported in 1988 (4) SCC 170
(v) In R.K.Sabharwal and others Vs. State of Punjab and others reported in 1995 (2) SCC 745".
We have also perused those decisions and those decisions are not helpful in deciding the issue involved in this case.
15.We have carefully considered the rival submissions and we find it difficult to sustain the order of the learned single Judge. When the rule specifically prescribes the cycle that has to be followed, the same cannot be simply ignored. Since the rule is very specific providing a cycle, every vacancy has to be filled up according to the cycle and the cycle itself maintains the proportion of 2:5. The fallacy of the argument of the learned counsel for the first respondent is that it fails to give due weightage to the adherence to the cycle as provided in the special rules. If Tmt.Manjula had relinquished her promotion before she was actually promoted to the post of Headmistress, it could have been a different matter. But she sought reversion (not relinquishment) after she was promoted against the slot meant for P.G.Assistant and after she joined the promoted post. Therefore, the next vacancy that was caused for whatever reason, should go to the next slot viz., the Headmaster of a High School, as per the cycle. The relevant factor is the availability of vacancy and not how the vacancy was caused; otherwise the rule providing for following of cycle would have no meaning.
16.Once Tmt. Manjula, P.G.Assistant, was promoted and she joined the post of Headmistress, the slot meant for P.G.Assistant in the cycle got exhausted and the next vacancy has to be filled, according to the cycle only. Otherwise, the provision of cycle in the Rules has no meaning. As stated earlier, the relevant factor is the creation of the vacancy and not the cause for its creation since the cycle itself ensures the proportion of 2:5. If the contention of the learned counsel for the first respondent is accepted, the second respondent has to see, while filling every vacancy, whether the vacancy was caused due to the death/retirement/resignation etc., of Headmaster or P.G.Assistant and that is not the purport of the Rule that was extracted above.
17.For the above stated reasons, we are of the considered view that the writ appeal deserves to be allowed and the order of the learned single Judge is liable to be set aside. Accordingly, the writ appeal is allowed and there will be no order as to costs.
sms To
1.The Commissioner, Madurai Corporation, Madurai.
2.The Chief Educational Officer, Corporation Schools, Madurai.