REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _________OF 2009 (Arising out of SLP (Civil) No. 18765 of 2006)

P. Thurai Pandian   ….       Appellant

Versus

K. Subramanian and others …      Respondents  

J U D G M E N T

S.B, SINHA, J.  

Leave granted.

1. Parties  hereto  had  been  working  in  a  school  commonly  known  as  

S.M.R.V.  Higher  Secondary  School,  Vadasery  in  the  District  of  Nagercoil,  

Tamil Nadu.  It is a ‘private aided school’ within the meaning of the provisions  

of the Tamil Nadu Recognition of Private Schools (Regulation) Act, 1973 (for  

short ‘the Act’).      

2. Indisputably the conditions of service of the teachers of the said school  

are governed by the provisions of the Act and the Rules framed thereunder.  

3. Mr. P. Subramanian was the Head Master of the said school.  He retired  

on  31st May,  2003  whereupon  a  vacancy  to  the  said  post  occurred.   The  

appellant as also the first respondent were not the seniormost teachers in the  

said  school.   But  as  the  first  two  seniormost  teachers  expressed  their  

unwillingness  to  be  the  Headmaster  of  the  school,  the  School  Selection  

Committee considered the cases of the appellant and the first respondent only  

for appointment to the said post.  The school adopted a policy of choosing the  

candidate by secret ballot.   The first respondent secured five votes while the  

appellant secured four.  The School Committee appointed the first respondent in  

the post of Head Master.  

4. Inter  alia  contending  that  he  was  more  meritorious  than  the  first  

respondent,  the  appellant  preferred  an  appeal  against  the  decision  of  the  

Selection Committee  before the  Joint  Director  of  School  Education.   By an  

order dated 17th December, 2004 the appeal of the appellant was allowed.   

5. We may also place on record that the appointment of the first respondent  

was not approved by the said Joint Director.  However, it must also be noticed  

that one of the allegations against the first respondent in the inspection reports  

filed by C.E.O. and D.E.O. was that he had never participated in the Parents  

Teachers Meeting, Independence Day Celebrations or any of the functions of  

the school.   

2

6. The  first  respondent  filed  a  writ  petition  before  the  High  Court  

questioning the said order of the Joint Director dated 17th December, 2004.  A  

learned  Single  Judge  of  the  High  Court  allowed  the  said  writ  petition  and  

directed the School Committee to consider the cases of all eligible candidates  

for appointment to the post of Head Master.   

7. The  appellant  preferred  an  intra  court  appeal  thereagainst  which,  by  

reason of the impugned judgment, has been dismissed.  

8. The question which arose for consideration before the High Court is as to  

whether the High Court should have interfered with the order passed by the  

statutory authority in exercise of its writ jurisdiction.

9. By a detailed judgment both the learned Single Judge as also the Division  

Bench took into consideration the respective qualifications of the appellant as  

also the first respondent to opine that both the School Committee as also the  

Joint Director of Schools did not consider the respective merits and abilities of  

the parties from all perspectives.    

10. Referring to the relevant provisions of the Act and the Rules relating to  

constitution and functioning of the School Committee, the High Court opined  

that  in  terms  thereof  the  role  of  the  School  Committee  must  be  held  to  be  

paramount in the administration of school.   

3

11. Before  adverting  to  the  aforementioned  question  we  may notice  Rule  

15(4) of the Tamil Nadu Recognized Private Schools Rules, 1974 (for short ‘the  

Rules’, which reads as under:-

“15. Qualification, conditions of service of teachers and  other persons.-   

(4) (1) (i) Promotion shall be made on the 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 (1) as 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  Elementary  Educational Officer in respect of Pre- Primary, Primary  and Middle School and that of the inspecting officer in  respect of High and Higher Secondary Schools, 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.

(d) Appointments to the post of Headmaster of Higher  Secondary  School  shall  be  made  by  the  method  

4

specified  in  clause  (ii),  either  from  the  category  of  Headmasters  of  High  Schools  or  Teachers’  Training  Institutes  or  from  the  category  of  Post  Graduate  Assistants  in  Academic  Subjects  or  Post  Graduate  Assistants  in  language  provided  they  possess  the  prescribed qualifications”

12. The Managing Committee of the School indisputably was considering the  

question  of  filling  up  the  post  of  Head  Master  by  way  of  promotion  from  

amongst the qualified teachers in the school.   

The Selection Committee, thus, had to consider the respective merits and  

abilities  of  the  qualified  teachers  for  grant  of  promotion.   Both  the  learned  

Single Judge as also the Division Bench arrived at a finding of fact that both the  

appellant as well as the first respondent were duly qualified for holding the said  

post.   

On the aforementioned premise the High Court, in our opinion, cannot be  

said to have committed any legal infirmity in issuing the impugned directions.

13. The Joint Director (School Education) may be an appellate authority but  

there is nothing to show that the statute provides for ‘finality’ of his decision.  

The appellate authority itself did not hold any viva voce to judge the respective  

suitability  of  the  contenders  to  the  post.   Apart  from  the  respective  

qualifications of the candidates and/or adverse reports of the C.E.O. against the  

first respondent, he did not consider any other aspect of the matter.   

5

14. The selection  process  adopted by  the  Management  of  the  School  was  

unconstitutional.  A deliberative process amongst the members of the Selection  

Committee to choose the best candidate available for promotion was imperative  

to the post of Head Master was imperative in nature.  The Selection Committee  

and for that matter the Management of the School must not only function in  

terms of the provisions of the statute, they were required to maintain fairness in  

the selection making process.  Secret ballot would not be a fair procedure for  

selecting a candidate for the post of Head Master of a school in view of the fact  

that  holder  of  the  said  post  should  not  only  possess  the  educational  

qualifications  but  also  seniority  and  administrative  ability.   The  Selection  

Committee  is  required  to  consider  other  qualities  of  the  candidates  also  for  

holding the post of Head Master of an institution.   

15. Before, however, we part with this judgment, we must take note of the  

fact  that  the  School  Committee  on  25.10.2006  after  the  judgment  of  the  

Division Bench of the High Court dated 12.10.2006 was delivered, issued notice  

to  all  the  concerned to  select  the  Headmaster  again.  Admittedly no outsider  

applied for the said post. Even from within the School also only the appellant  

and the respondent applied.

16. The appellant has also before us challenged the said notification inviting  

applications for the post of Headmaster on the ground that as per Rule 15(4) of  

6

the 1984 Rules, the School Committee could not have invited applications from  

outside the School .  

17. In our  considered opinion,  even though applications  had been invited,  

admittedly no such applicant applied for the said post.  Even from within the  

school only the appellant here in P Thural Pandian and respondent No. 1, herein  

K Subramanium  applied.  We would, therefore, reject the submission of the  

learned counsel because at this stage the said argument has become futile, since  

no outsider has applied for the said post of the Headmaster.

18. We must also further take notice of the fact that the School committee  

after  considering  the  merit  and  ability  of  both  the  applicants,  appointed  

Respondent No. 1 Mr K subramanium as Headmaster vide Resolution No. 2  

dated 25.10.2005. The District Educational Officer on 15.11.2006 approved the  

proposal for appointment of Mr. K Subramanium as Head master of the School  

and  stated  that  in  view  of  the  common  judgment  dated  12.10.2006  the  

appointment  order  of  P Thurai  Pandian as  Headmaster  dated 28.12.2004 be  

deemed to be cancelled.

19. However  on  31.01.2007  a  new  District  Educational  Officer  was  

appointed and he cancelled the order of the previous DEO dated 15.11.2006.  

Respondent No.1, K Subramanium thereafter approached the Madurai Bench of  

the Madras high Court by filing a writ petition which was marked as WP No.  

4341/2007 and obtained an interim stay on 08.02.2007.  As a result of the said  

7

order of stay respondent No. 1, K Subramanium is at present holding the post of  

the Head Master of the School.

20. We are hereat  not  concerned with the challenge to the cancellation of  

order dated 15.11.2006 of the new District Educational Officer. We need not  

make any observations on the said matter as the said matter to the best to our  

knowledge is still sub judice.  We would, however, request the High Court to  

consider  the  desirability  of  disposing of  the matter  pending before it,  if  not  

already disposed of.    

21. We, therefore, are of the opinion that there is no legal infirmity in the  

impugned judgment.  The appeal is dismissed accordingly.  No costs.

………………………………..J. [ S.B. Sinha ]

………………………………..J. [ Cyriac Joseph ]

New Delhi August 4. 2009

8