JUDGMENT

1. The petitioner prays for the issue of a writ of mandamus directing the third respondent to cancel the appointment of the fourth respondent as B.T Assistant (History) and to appoint the petitioner in the above place with all the benefits from the date on which the fourth respondent was appointed.

2. Heard Sri C. Selvaraj, learned counsel appearing for the petitioner, the Additional Government Pleader appearing for the respondents 1 and 2, Sri Ravikumar Paul, learned counsel for the third respondent and Smt. R.T Shyamala, learned counsel appearing for the fourth respondent.

3. With the consent of counsel on either side the writ petition itself is taken up for final disposal.

4. The petitioner joined the third respondent school in the cadre of Secondary Grade Teacher on 22 December, 1993, a sanctioned post and his appointment has also been approved. A post of B.T Assistant (History) fell vacant during July 1999. The petitioner who is qualified in all respects represented to the third respondent for being promoted to the said vacant post on 22 July, 1999. The third respondent called for interview of various candidates. But the petitioner was not served with any interview letter. The petitioner represented to the Bishop and at the intervention of the Bishop the Committee extended the interview date and the petitioner was called to appear for the interview on 1 September, 1999. In all 30 persons attended the interview on 1 September, 1999. The petitioner and the fourth respondent alone are the persons working in the school and the remaining 28 are outsiders. The interview was conducted by a Committee consisting of the Correspondent, Headmaster, the President of Parents Teachers Association, Local Church Priest, Area Higher Education Member, Area Chairman and nearest Girls School Correspondent, Ooty. The Committee forwarded the selection list to the Bishop. According to the petitioner the Committee did not recommend the fourth respondent for being appointed. However, the fourth respondent has been appointed as B.T Assistant. The proposals have been submitted for approval for the appointment of fourth respondent in the cadre of B.T Assistant (History). The third respondent school is a minority school and therefore the petitioner is approaching this Court directly. The petitioners attempt to get a copy of the order appointing the fourth respondent has not been successful. Hence the petitioner has moved the present writ petition seeking the relief of mandamus and couched the prayer in such a fashion seeking the relief of mandamus to cancel the appointment of the fourth respondent and appoint the petitioner as B.T Assistant (History) in the third respondent school.

5. It is contended that the fourth respondent was only working as a lab assistant though she possesses B.A, and B.Ed, degrees. The petitioner, a Secondary Grade Assistant has acquired B.A,(Histpry), M.A(History) and B.Ed The petitioner has been handling the 10th Standard English and Social Science and he has been discharging the said function for more than 4 years. The petitioner also states that he has worked as B.T Assistant (History) in St. Antony Higher Secondary School, Coonoor, for three years and as B.T Assistant in Joseph's Higher Secondary School, Ooty, for two years. The petitioner possess rich experience in the cadre of B.T Assistant. The petitioner also states that he has acquired P.G Diploma in Geography. The petitioner claims that he has better qualifications than the fourth respondent and he is in the feeder category as against the fourth respondent who is only holding the post of lab assistant. The petitioner has been illegally denied promotion to the post of B.T Assistant (History). The fourth respondent though acquired B.A, B.Ed, degrees has no experience butis working as lab Assistant without teaching experience. The petitioner claims that his name has been included in the selection list but for reasons best known to the Bishop, the fourth respondent has been appointed with effect from 4 November, 1999. The appointment of fourth respondent runs counter to the Tamil Nadu Recognised Private Schools Regulations Act and the Rules. The denial of promotion to the petitioner is arbitrary, illegal and a mandamus has to be issued as prayed for.

6. In terms of rule 15(4) if vacancy arises, the same has to be filled up by giving chance to the teaching staff working in the same school and only thereafter if no other candidate is available chance has to be given to the non-teaching staff and thereafter open market recruitment has to be resorted after getting permission. The scheme of regulation 15(4) has been ignored by the third respondent. The petitioner who is working as Secondary Grade Teacher in the same school being a member of the teaching faculty and in the feeder category has been ignored while the fourth respondent who is only a lab assistant has been appointed. This is arbitrary, illegal and in violation of statutory provisions. It is also asserted that the fourth respondent has not been selected by the committee. The committee has prepared a panel of eight persons and even among the eight persons the name of the fourth respondent does not find a place.

7. It is contended that the provisions of rule 15(4) applies to the third respondent school and the third respondent school has to implement the said provision. The petitioner claims that he is better equipped, better qualified and better experienced and therefore he should have been promoted. Hence the present writ petition to direct the third respondent school to cancel the appointment of the fourth respondent and to promote the petitioner to the post of B.T Assistant (History).

8. The third respondent has filed a counter contending that the writ petition is not maintainable and the third respondent being a minority school is not amenable to the writ jurisdiction of this Court and that rule 15(4) has no application at all, not it could be invoked nor enforced in respect of a minority institution namely the third respondent.

9. It is stated that in all 21 persons including the petitioner and fourth respondent attended the interview. The fourth respondent was appointed initially as lab assistant on compassionate grounds as there was no vacancy in the cadre of Secondary Grade. The fourth respondent has been handling classes and she has rich teaching experience though the petitioner has been taking higher classes, his performance as a teacher was not as good as that of the fourth respondent. That apart, the petitioner concealed his having acquired M.A(History) at the time of applying for the post and had he disclosed the same, he would be ineligible for appointment. It is also stated that the qualification, experience and performance of the petitioner and the fourth respondent were evaluated by the competent body which decided to select the fourth respondent based upon relevant criteria. rule 15(4) is inapplicable to minority institutions like the third respondent school as per the judgment of the Division Bench. No case has been made out for interference by the petitioner. There are absolutely no merits in the writ petition and the writ petition is liable to be dismissed.

10. The fourth respondent has filed a separate counter. According to the fourth respondent the post of B.T Assistant (History) the candidates were sponsored by Diamond Diocese Employment Register, Nilgiris. Nearly 21 candidates were called for interview. The fourth respondent was not called for interview and at the intervention of Diocese the fourth respondent was sponsored and called for interview. 13 candidates alone attended interview. The 4th respondent was selected in the interview and she has been appointed as B.T Assistant. The fourth respondent was appointed in the third respondent school on cornpassionate grounds as her mother died-in-harness on 14 May, 1980. The fourth respondent was appointed as lab assistant on 1 March, 1993 which was the only vacancy then available. The fourth respondent has been handling classes in leave vacancies and she has also worked as Teacher in Nazareth. Convent High School, Ooty and as Secondary Grade Teacher in Ketti in the leave vacancy for nearly 11 years. The fourth respondent has not been promoted to the cadre of B.T Assistant directly and appointed to the said post and it is not a case of pure and simple appointment. The interview was conducted by the Committee constituted by the Diocese and without impleading the Diocese the writ petition is not maintainable. No mandamus could be issued without quashing the order of appointment and therefore the writ is not maintainable. The fourth respondent possess all the requisite qualifications for appointment as B.T Assistant. It is stated that the fourth respondent's appointment was treated as appointment-cum-promotion as a candidate should not lose her service. It is contended that rule 15(4) has no application and in this respect the fourth respondent relies upon the order passed in W.P No. 4478 of 1975, dated 17 December, 1975, and W.P No. 5186 of 1981. The writ-petitioner cannot press into Service rule 15(4) as it has no application in respect of third respondent, a minority institution. The fourth respondent is qualified, possess rich experience as a Secondary Grade Teacher in handling the classes. The fourth respondent has joined in the said post on 5 January, 1999 and her earlier appointment on compassionate ground cannot be a ground to disqualify her who has put in 14 long years of experience in various schools. The fourth respondent was considered by the Committee and after considering the qualification she has been selected and appointed as B.T Assistant (History) in the third respondent school.

11. The points that arise for consideration are:

(i) Whether the petitioner is entitled to maintain the writ petition seeking the relief without seeking to quash the order of appointment of fourth respondent?

(ii) Whether the petitioner, a Secondary Grade Assistant in third respondent school could claim priority and compel the respondents to promote him to the cadre of B.T Assistant (History) in the third respondent school as against the fourth respondent who is employed as Lab Assistant?

(iii) Whether rule 15(4) could be pressed into service or enforced by the petitioner as against the third respondent school, a minority institution?

(iv) To what relief, if any the petitioner is entitled to?

12. All the above points could be taken up together and considered.

13. The third respondent school is governed by The Tamil Nadu Recognised Private Schools (Regulations) Act. The third respondent school is also getting 100 per cent grant from the State Government. The third respondent is a minority school and therefore certain of the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act and the Rules framed thereunder in terms of the earlier Division Bench judgment are not being enforced.

14. As against the judgment of the Division Bench which is pending in appeal before the Supreme Court and Sri Paul, learned counsel for third respondent school represents that the appeal is listed before the Supreme Court for final disposal consequent to the direction issued by the 11 Judges larger Bench in TMA Pai Foundation case. However, Sri C. Selvaraj, learned counsel for the petitioner heavily relies upon the same pronouncement (TMA Pai Foundation v. State of Karnataka of the 11 Judges Larger Bench judgment in support of his contentions. Apart from that Sri C. Selvaraj also relies upon the earlier unreported order of this Court in Mercy Matilda v. Director of School Education in W.P No. 16914 of 1998.

15. It has to be pointed out here and now that the provisions of rule 15(4) is being relied upon by the petitioner was not in the statute book when the Division Bench decided the constitutional validity of The Tamil Nadu Recognised Private Schools (Regulations) Act and the Rules framed thereunder. The said rule 15(4) came to be introduced after the judgment of the earlier Division Bench before which the constitutional validity of the Tamil Nadu Recognised Private Schools (Regulations) Act and the Rules were the subject-matter of challenge.

16. It is also not in dispute that the fourth respondent was holding the post of Laboratory Assistant, which is not a feeder post for promotion to the cadre of teacher, namely a B.T Assistant in the third respondent school. It is also not in dispute that the writ-petitioner is better qualified with large number of years of experience as a Secondary Grade Teacher as against the fourth respondent, who is not holding the post in the feeder category.

17. The claim that the fourth respondent has handled the classes is neither here nor there, nor it could be a ground to hold that the fourth respondent is a member of the feeder category. Admittedly the writ-petitioner is a member of the feeder category namely Secondary Grade Teacher in the same school where the B.T Assistant (History) post fell vacant.

18. rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules reads thus:

15. Qualifications, Conditions of service of Teachers and other persons:

(4)(i) Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.

(ii) Appointments to the various categories of teachers shall be made by the following methods:

(i) Promotion from among the qualified teachers in that school

(ii) If no qualified and suitable candidate is available by method (i) above,

(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers.

(b) Appointment of teachers from any other school.

(c) Direct recruitment.

In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools Teachers' Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school the schools under that body shall be treated as one unit for purpose of this rule.”

19. In terms of rule 15(4)(i), promotions shall be made on merit and ability, seniority being considered only when merit and ability are approximately equal. rule 15(4)(ii) mandates that the appointment to the various categories of teachers shall be made firstly by promotion from among the qualified teachers in that school and if no qualified and suitable candidate is available, appointment of other persons employed in that school provided they are fully qualified to hold the post of teachers and lastly appointment of teachers from any other schools for which the prior permission of the District Educational Officer or Chief Educational Officer as the case may be has to be secured.

20. In this case concedingly no such prior permission has been secured though the third respondent school invited applications from among the candidates employed in other schools by way of direct recruitment.

21. It is admitted that the petitioner is better qualified with better experience when compared to the fourth respondent, who is not a teacher and who is not in the feeder category. Promotion from among the qualified teachers is the first preference, which the writ-petitioner is entitled to claim as per statutory rule. The question whether rule 15(4) is enforceable against a minority school was considered by this Court in W.P No. 16914 of 1998 (Mercy Matilda v. Director of School Education), dated 8 September, 1999. After analysing the entire case law as well as the pronouncement of the Apex Court, it was held that rule 15(4) will apply to all kinds of minority schools either linguistic or religious institutions as well as promotion or appointments and more so in respect of schools which receive grant.

22. In this respect, this Court held thus:

“97. In the foregoing circumstances while following the later pronouncement of the Apex Court and the Division Bench judgment of this Court in W.A No. 1179, 242 of 1993 etc., in S. Sundaram v. Secretary C.S.I Diocese, Madras decided on 6 September, 1994 the decision in D. Singaram v. Government of Tamil Nadu made in W.P No. 6607 of 1991 which is dated 5 September, 1995 the decision of Jayasimha Babu, J., in Dr. Sham v. Commissioner of Collegiate Education, [1998 (1) C.T.C 609], as well as the above referred Supreme Court cases this Court holds that the enforcement of rules or regulations relating to recruitment and promotion of teachers other than Headmaster/Headmistress in other words implementation of rule 15(4)(i)(ii) in no way violates the constitutional guarantees, nor there is any infraction of Art. 30(1) of the Constitution.

98. Hence the Court holds that rule 15(4)(ii) of the Rules will apply to all kinds of minority schools either linguistic or religious institutions as well as promotions or appointments are required to be made only in conformity with the statutory provision. It is only in respect of Headmaster/Headmistress as held by the Apex Court in N. Ammad v. Manager, [(1998) 6 SCC 674], a selection is open to the management of such minority institution and only with respect to appointment of Headmaster alone the violation of Art. 30(i) if any could be comprehended and in no other appointment, promotion etc., even in a minority school which receives full grant.

99. In the circumstances with due respect to the learned Judges of this Court who have taken the view that rule 15(4)(ii) has no application beg to differ from them in the light of the later Division Bench judgment as well as the pronouncement of the Apex Court referred to above. As such this Court is of the view that rule 15(4)(i)(ii) is applicable even to minority institutions and the promotions even in a minority school has to be made in compliance with the provisions of the Tamil Nadu Private Schools (Regulation) Rules, 1974. Merely because there is no School Committee there is no reason to deny the statutory protection, promotion and other conditions of service identical to all aided schools to minority schools.

100. Therefore in the light of the said legal position it follows that the appointment of teachers in the fourth respondent school shall be made by following the methods stipulated in rule 15(4)(ii) of the Tamil Nadu Private Schools (Regulation) Act, 1973. It may be that there may not be a School Committee and that the provisions with respect to the formation of School Committee may not apply but the appointment of promotion to various categories of teachers is required to be made by following the methods prescribed in the said rule. Any deviation would result in frustration among the teachers employed in the minority schools who are also being paid on par with the teachers employed in the aided institutions as well as institutions run by the State Government.”

23. Apart from the above pronouncement of his Court, Sri C. Selvaraj, learned counsel for the petitioner relied upon recent the pronouncement of the Apex Court in TMA Pai Foundation case decided by eleven-Judges Bench of the Apex Court. The majority of the Judges constituting the Bench, held thus:

“Q. 5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc., would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a University of board have to be complied with, but in the matter of day to day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate Tribunals could be constituted, and till then, such Tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, government/University representative can be associated with the Selection Committee and he guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.”

24. In the foregoing circumstances, while following the earlier judgment of this Court as well as the law laid down by the Apex Court, as well as that of larger Bench in TMA Pai Foundation case, this Court answers the first point in favour of the writ-petitioner. The second point is answered holding that the petitioner is entitled to be promoted, as the petitioner alone is in the feeder category and not the fourth respondent. On the third point also this Court holds that rule 15(4) could very well be pressed into service or enforced by the petitioner as against the third respondent school, which is a minority institution in view of the binding pronouncement of the Apex Court.

25. Therefore it follows that the appointment of the fourth respondent as if it is a direct recruitment cannot be sustained at all as there is a teacher available in the feeder category, who possess all qualifications in terms of rule 15(4)(i). As priority has been laid down by statutory Rule, the vacancy in the category of B.T Assistant (History) has to be filled up by promotion. The petitioner is qualified in all respects with rich experience as well as he is the senior most in the feeder category with requisite qualifications. Therefore the third respondent school should have promoted the writ petitioner as against appointment of the fourth respondent who is not in the feeder category even though she is possessed of the qualifications. It follows that the petitioner is entitled to the relief of mandamus as prayed for.

26. The reliance placed upon by Sri R. Paul and Smt. R.T Shyamala, learned counsel on various pronouncements, in my considered view, will have no application or no longer good law in view of the later pronouncement of the Supreme Court in TMA Pai Foundation case. Incidentally, it is also contended that there is a remedy of appeal before the appellate authority in terms of rule 15(4) of the Rules. It is true that rule 15(4A) provides for an appeal. However, in view of the passage of time of three years, this Court will not be justified in directing the petitioner to invoke the remedy of appeal available under rule 15(4A) at this point of time. In this respect Sri C. Selvaraj learned counsel for the petitioner rightly placed reliance the Division Bench judgment of this Court in Sri Palani Dhandayuthapani v. Commercial Tax Officer, reported in 2002 (1) L.W 318. That apart, in this case there is no factual dispute or controversy and it is not necessary to direct the petitioner to go by way of appeal at this point of time.

27. Smt. R.T Shyamala, learned counsel for the 4th respondent contended that the writ petition seeking for a mandamus is not maintainable as the petitioner should have challenged the appointment and promotion of the fourth respondent. It is true that the writ petition is for a mandamus directing the third respondent school appointing the fourth respondent to cancel the appointment of the fourth respondent and certiorari has not been sought for. The petitioner is disabled from seeking a certiorari as the order of the third respondent school has not been furnished to the petitioner. The petitioner despite his attempt to secure a copy of the impugned order appointing the fourth respondent he has not succeeded as the orders of promotion has been kept confidential by the third respondent school as well as the fourth respondent.

28. Therefore the petitioner is well founded in couching the relief and the petitioner has in fact challenged the validity of appointment/promotion of the 4th respondent and the petitioner is entitled to the relief. On such technical objections, the writ petition cannot be thrown out, when a case has been made out for interference, this Court could very well issue a writ of certiorari, if a case is made out. When there is no dispute as to the selection and appointment of the fourth respondent to the cadre of B.T Assistant (History) in the third respondent school in violation of rule 15(4) instead of issuing a writ of mandamus, this Court could very well issue writ of certiorari and quash the proceedings of the third respondent school appointing the fourth respondent by order, dated 5 November, 1993.

29. In the circumstances all the points are answered in favour of the writ-petitioner and instead of the relief of mandamus, this Court issues a writ of certiorarified mandamus quashing the proceedings of the third respondent appointing the fourth respondent in the post of B.T Assistant (History) in the third respondent school and consequently direct the third respondent school to forthwith appoint the petitioner in the cadre of B.T Assistant (History) within three weeks from the date of receipt of a copy of this order or production of a copy of this order by the writ petitioner, whichever is earlier.

30. This Court also directs that the third respondent shall appoint the writ-petitioner retrospectively, namely from the date on which the fourth respondent was appointed in the said school as B.T Assistant (History) But the petitioner will not be entitled to the difference in wages and for the period during which the fourth respondent was acting. From the date on which the petitioner assumes office, he will be entitled to the salary attached to the said post. But for all other purposes, the petitioner will be deemed to have been appointed with effect from the date on which the fourth respondent has been appointed.

31. The writ petition is allowed with the above directions. Consequently, connected miscellaneous petitions are closed. The parties shall bear their respective costs.