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CASE NO.: Appeal (civil)  2533 of 2007

PETITIONER: S. Sethuraman

RESPONDENT: R. Venkataraman & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2533 of  2007 [Arising out of S.L.P. (C) No.  16627 of 2006]

S.B. SINHA, J.

1.      Leave granted.          

2.      Recruitment/Promotion to the post of Headmaster in an aided or  unaided school in the State of Tamil Nadu is governed by Tamil Nadu  Recognised Private Schools (Regulation) Act, 1973 and Tamil Nadu Private  Schools (Regulation) Rules, 1974 (Rules),   Rule 15(4) whereof reads as  under:- "15(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 the rule.

(d)  Appointment to the post of Headmaster of Higher

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Secondary School shall be made by the method  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 Languages provided they possess the  prescribed qualifications."

3.      Rule 15(4) of the Rules provides that promotion shall be made on  ground of merit and ability, seniority being considered only when merit and  ability are approximately equal.  Admittedly, the Managing Committee of  the School made comparative evaluation of merit and ability of the appellant  vis-‘-vis respondent no. 1 and opined that the merit and ability of the former  is better than the latter.  Some other factors including the one that the first  respondent was holding the post of Secretary and correspondent in another  school were also taken into consideration.  Appellant was, therefore,  appointed to the post of headmaster in the school.  

4.       An appeal was preferred thereagainst before the Joint Director of  School Education by the said respondent.  The said appeal was, however,  dismissed.   

5.      A writ petition bearing No. 20183 of 1992 was filed by the first  respondent which was allowed by reason of a judgment and order dated  21.12.1998 by a learned Single Judge of the High Court.

6.      In an appeal preferred thereagainst viz., Writ Appeal No. 2058 of  1999, however, a Division Bench remitted the matter back to the Joint  Director of School Education (Higher Secondary) by an order dated  14.07.2000 stating:- "The learned counsel appearing on behalf of the  fourth respondent had made such a specific  statement in the Court and therefore by consent of  both the counsel, the matter is being remanded to the  Joint Director of School Education (Higher  Secondary), Directorate of School Education,  College Road, Chennai.   He will now go into the  question of the inter se merits alone strictly within  the scope of Rule 15 of the Tamil Nadu Recognized  Private Schools (Regulation) Act, 1973 (Tamil Nadu  Act 29 of 1974).   If the parties so feel they shall be  entitled to be heard by the first respondent.  The first  respondent shall decide the question with reference  to the date of the availability of the post i.e.  23.07.1992 and shall proceed to decide whether on  that date it was the petitioner or the fourth  respondent who could be appointed as a Headmaster  on the basis of inter se merits etc."

7.      By an order dated 2.11.2000, the second respondent opined that the  merit and ability of both the appellant and the first respondent were equal  and, therefore, since the first respondent was senior, he should be selected  for the post of Headmaster as per the provisions of the Act and the Rules.

8.      Aggrieved by and dissatisfied with the said order, the appellant filed a  writ petition marked as WP No. 19445 of 2000.  The learned Single Judge  allowed the said writ petition holding that except under extraordinary  circumstances the authorities under the Act should be slow in interfering  with the selection made by the school management to the post of headmaster  the same being very vital for the day-to-day management of the school.   

9.      The learned Judge was of the view that the second respondent had  omitted to deal with the overwhelming materials which were considered by  the school committee while selecting the appellant for the post of

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headmaster.   

10.     The Court further held that the opinion of the Managing Committee  should not ordinarily be set aside by the authority stating:- "10.  When the case on hand is considered in the light  of the above stated principles laid down by the Supreme  Court, there can be no two opinion that except under  extraordinary circumstances where it is demonstrated to  the satisfaction of the authorities concerned that the  selection was made giving a complete go by to the  normal method in the assessment of merit and ability of  the different claimants, the authorities should be very  slow in interfering with the selection so made by the  school management to the post of head master as that  would be very vital for the day-to-day management of  the school as the role of a Head Master involves the  administration of the school including the supervision  and control of teaching and non teaching staff, students  and other aspects concerning the school."

       It was held:-

"The order of the first respondent in attempting to equate  the status of the petitioner and the 4th respondent by  considering certain factors alone being the relevant factor  namely the dual role of the 4th respondent in order to  ultimately hold that since because the 4th respondent is  senior, his appointment should be made cannot be  accepted.  In fact, in the proceedings of the selection  committee dated 3.8.1992, a detailed consideration has  been made as regards the merits of the petitioner on  various aspects.   Unfortunately, the first respondent has  omitted to deal with such superfluous and overwhelming  materials which were considered by the third respondent  school committee while selecting the petitioner for the  post of head master.  When such consideration which  weighed with the school committee had been really  considered by the first respondent in their proper  perspective, certainly there would have been no scope for  the first respondent to equate the 4th respondent with the  petitioner.  So, in view of the above said reasons and in  the light of the fact that the 4th respondent was holding  the position of Secretary and Correspondent of another  middle school during the relevant point of time, the non  consideration of the impact of such a position held by the  4th respondent in the event of he being appointed to the  post of head master by the first respondent would be a  detrimental factor making the impugned order invalid in  law....."

11.     The Writ Petition of the appellant was, thus, allowed.

12.     The Order of the learned Single Judge, however, was set aside by a  Division Bench of the said High Court inter alia opining:- (i)     As the interference with the decision of the selection committee  was made at the instance of the High Court, the appellant could not  claim that the statutory authority is not entitled to interfere with the  decision of the committee very lightly. (ii)    Although in the first round of battle, appellate authority did not  choose to interfere with the decision of the school committee, it  was constrained to interfere in the second round of the battle, on  account of the order of remand passed by this court. (iii)   Having invited such an assumption on merits through directions of  this Court, it is not open to the first respondent to question the  jurisdiction of the second respondent to go into the merits of the

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case. (iv)    Parties hereto having submitted themselves to the jurisdiction of  the appellate authority to assess their relative merits, the appellant  is estopped from contending that the decision of the school  committee cannot be lightly interfered with. (v)     After having submitted themselves to an assessment by the second  respondent, it is also not open to the parties to assail the final  decision taken by the second respondent, on merits. (vi)    The learned Judge was also carried away by the fact that the  appellant functioned as the Correspondent of another middle  school only at the relevant point of time in 1992.  This fact has also  been taken into account by the second respondent, in his order  dated 2.11.2000.  Therefore the second respondent has actually  taken into account all relevant factors in coming to the conclusion  in his order dated 2.11.2000.   (vii)   After finding that both the appellant and the first respondent are  equally well placed in the matter of merit and ability, the second  respondent naturally applied the principle of seniority, since Rule  15(4)(i) enables him to consider seniority where merit and ability  are equal.  Therefore, the order of the second respondent does not  suffer from any illegality. (viii)  Respondent No. 1 was aged 50 years at the time of the writ petition  was filed in the year 2000 whereas the appellant was aged 44  years.  And in view of the pending litigation for the past 14 years,  no penalty could reach in the matter of promotion, the post of  headmaster in the fourth respondent’s school and the appellant is  now left with two years of service.   

13.     Mr. K. Parasaran, learned senior counsel appearing on behalf of the  appellant in assailing the said judgment submitted that the Division Bench of  the High Court committed a serious error insofar as it failed to take into  consideration that the appellate authority in arriving at its decision not only  failed to take into consideration the relevant facts, but in fact based its  decision on irrelevant factors.

14.     Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of  respondent No. 4, on the other hand, urged that although ex-facie the order  of the appellate authority dated 2.11.2000 would show that he had taken into  consideration some factors which may not of much relevance but the real  consideration therefor is evident from following findings arrived at by it. "Regarding special merit, R. Venkataraman though a  Tamil Teacher had undergone computer training.  He  obtained a certificate in Health and Hygiene from  Poona.  He obtained many certificates in the subject  Tamil in which he teaches.   He served as an editor for  the monthly magazine "Thondu" by the Gandhi Peace  Foundation, Chidambaram.  He participated as a  spectator in the fifth World Tamil Conference held in  1981.  He conducted Literary Association meetings.   He won prizes in essay and recitation competitions.   He involved himself in religious service, musical  service and sarvodaya service and human relation  service.  He served in Home-guards.  He acted in  dramas.

       Similarly, the science teacher Thiru Sethuraman  participated in many District level, State level and  Southern India level science and Technology  exhibitions and won many prizes.  He participated in  many researchers organized by Indian Science  Congress Association and similar organizations.   He  had undergone Inservice-Training, Scout Training and  Computer Training.   He wrote many books.   He has  also served as Assistant Commissioner of Bharath  Scouts and Guides.  After registration as a Ph.D

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Scholar he submitted the synopsis.   He acted in  dramas.

       Based on special merit and ability each one excels in  his specific field.  The Tamil teacher Thiru R.  Venkataraman has a special ability in his field.   He  has speaking and writing skills.  Similarly Thiru  Sethuraman has done researches on science related  projects and excels in that field by obtaining many  credits.  Both of them had undergone computer  training.  As science teacher, Thiru Sethuraman has  developed a Computer Software on "How to teach  Chemistry through Computer".  Thiru Venkataraman,  similarly conducted Literary Association meetings  and literary improvement meetings.  This literary  service and teaching chemistry through computer are  special features in class-rooms.  Just like Thiru  Sethuraman possessing many titles and appreciations  in the field of science Thiru Venkataraman possesses  titles and appreciations in the field of Tamil literature.   Thiru Sethuraman served as Assistant Commissioner  in Scouts, served in Homeguards for five years.    Thiru Sethuraman and Thiru Venkataraman acted in  dramas and won appreciation.  Just like Thiru  Sethuraman excelled in the field of science and  related researchers Thiru Venkataraman excelled in  social service, literary service, musical service and  religious service.

Thiru Sethuraman got Doctorate degree after 1992.

Thiru Venkataraman served as  Secretary/Correspondent in some other school  obtained concurrence from the Secretary of National  Higher Secondary School (in 1992).  This did not  divert his attention as a Postgraduate Teacher which is  understood from the results in Tamil (100%).  Passing  of Accounts Test is not applicable to aided school  teachers.

Considering the pass-percentage in their subjects  Thiru Venkataraman had served better than Thiru  Sethuraman.

               Thiru S. Sethuraman          Thiru R. Venkataraman       

               1987-88                         1987-88                 1988-89 Five years              1988-89  Five years                 1989-90   98%                   1989-90  100%                 1990-91                         1990-91                 1991-92                         1991-92"

15.     Mr. L.N. Rao, learned senior counsel appearing on behalf of the  management of the School brought to our notice that a charge memo has  been issued against the appellant herein for alleged commission of serious  misconduct during the period when he was occupying the post of  Headmaster.  

16.        The terms and conditions of service of the teachers of an aided  school are governed by the Act and the Rules framed thereunder.   The  Managing Committee of the School in terms of Rule 15 of the Rules are  enjoined with a duty to fill up the post of Headmaster primarily on the basis  of ’merit and ability’.  Indisputably, the Committee while appointing a  person must take into consideration the merit and ability of the candidate

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alone and only when the respective merit and ability of two candidates are  equal, seniority will have some role to play.  Respondent No. 1 is senior to  the appellant only by 13 days.  At the relevant point of time, the appellant  had passed the prescribed Accounts test for Headmasters conducted by the  Tamil Nadu Public Service Commission in the year 1989.  Before us various  other factors have been placed for the purpose of showing that apart from the  fact that the appellant was more qualified, the respondent No. 1 having  regard to his past services should not have been considered suitable for  appointment to the said post.

17.     While exercising the appellate jurisdiction, the appellate authority has  indisputably a plenary power.  It may not only consider the respective  educational qualifications and other activities of the respective candidates  for the purpose of arriving at a decision as to which of the two candidates  had better merit and ability, but it should exercise its jurisdiction keeping in  view the views of the Managing Committee.  If two views are possible,  ordinarily, the view of the Managing Committee should be allowed to  prevail.   

18.     It is unfortunate that the High Court failed to apply the correct  principles of law in this case.  Each one of its reasons, in our considered  opinion, is wholly untenable.  It suffers from misdirection in law.

19.     As noticed hereinbefore, the matter was remitted to the Joint Director  of School Education by the High Court with the consent of the parties but  the High Court in its Order categorically directed the said Authority to  consider the matter strictly within the scope of Rule 15 of Rules.  The High  Court did not and could not enlarge the scope of the appeal.   

20.     If the Appellate Authority thought otherwise, its order would not be  sustainable.  It was, therefore, obligatory on the part of the High Court to  apply its mind on the jurisdictional question raised by the appellant.  It  should have been tested the orders of the Appellate Authority and  consequently the learned Single Judge of the High Court on their own merits  and not de’hors the same.

21.     When the extant rule operating in the field was referred to by the High  Court, it should have applied the same.  What, therefore, could have been  done by the appellate authority was to follow the provisions of the Rules and  not to act de’hors the same.  He was exercising a quasi judicial function.  As  an appellate authority and acting under a statute, indisputably he could not  have failed and/or refused to take into consideration the relevant factors and  base its decision on irrelevant factors or on extraneous consideration.   

22.     Such a decision keeping in view the scope and ambit of the power of  judicial review vested in the High Court under Article 226 of the  Constitution of India could have been interfered with on the ground that the  order impugned before it contained errors apparent on the face of the  records.  Whereas the learned Single Judge of the High Court in passing its  Order took the said principle into consideration, the Division Bench in our  opinion failed to do so, Not only despite its attention having been drawn to a  number of grounds leading to passing of the Order impugned before it  became vitiated, the High Court applied the principle of estoppel against the  appellant and opined that having submitted himself to the jurisdiction of the  appellate authority, he could not be permitted to question the legality of the  same.  The approach of the High Court in our opinion was wholly erroneous.   Principle of estoppel has no application in a case of this nature.  Appellant  did not and in fact could not confer upon an authority a jurisdiction which he  did not derive under the statute.  If jurisdiction cannot be conferred by  consent, it cannot clothe the authority to exercise the same in an illegal  manner.    The jurisdiction of the appellate authority pursuant to the order of  the Division Bench, which it will bear repetition to state, was passed on  consent of the parties is not in dispute but only because the appellant  consented to re-examination of the matter by the appellate authority, which  it was otherwise entitled to, the same by itself could not have been found to

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be a ground for his becoming ineligible to challenge the final order passed  by the appellate authority when a large number of jurisdictional errors were  committed by it and were otherwise apparent on the face of the records. The  Division Bench of the High Court in our opinion, therefore, was not correct  in taking the aforementioned view.   

23.     We may notice that the appellate authority while judging the merit  and ability of the first respondent, took into consideration the following:- "1.     Though a Tamil Teacher, had undergone computer  training. 2.      Obtained certificate in Health and Hygiene from  Poona. 3.      Obtained many certificates in the subject of Tamil in  which he teaches. 4.      Served as Editor for the monthly magazine  "Thondu" by the Gandhi Peace Foundation,  Chidambaram. 5.      Participated as a spectator in the fifth World Tamil  Conference held in 1981. 6.      Conducted Literary Association meetings. 7.      Won prizes in essay and recitation competitions. 8.      Involved himself in religious service, musical  service, sarvodaya service and human relation  service. 9.      Served in Home-guards. 10.     Acted in dramas. 11.     Has special ability in his field. 12.     Has speaking and writing skills. 13.     Undergone computer training. 14.     Conducted Literary Association meetings and  literary improvement meetings. 15.     Possesses titles and appreciations in the field of  Tamil literature. 16.     Acted in dramas and won appreciation. 17.     Excelled in social service, literary service, musical  service and religious service. 18.     Served as Secretary/Correspondent in some other  school after obtaining concurrence from the  Secretary in 1992, which did not divert his attention  as a Postgraduate Teacher, which is understood from  the results in Tamil (100%).

19.     Passing of Accounts Test is not applicable to aided  school teachers. 20.     Passing percentage in his subject of Tamil for 5  years (i.e. 1987-88 \026 1991-92 ) is 100%."

24.     Most of the considerations which weighed with it were irrelevant.

25.     In Narinder Mohan Arya v United India Insurance Co. Ltd. and  Others [(2006) 4 SCC 713], this Court held:- "44. The judgment and order of the learned Single  Judge suffers from several infirmities. He had observed  that "the disadvantages of an employer as such acts are  committed in secrecy and in conspiracy with the person  affected by the accident". No such finding has been  arrived at even in the disciplinary proceedings nor was  any charge made out as against the appellant in that  behalf. He had no occasion to have his say thereupon.  Indisputably, the writ court will bear in mind the  distinction between some evidence or no evidence but  the question which was required to be posed and  necessary should have been as to whether some  evidence adduced would lead to the conclusion as  regards the guilt of the delinquent officer or not. The

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evidence adduced on behalf of the management must  have nexus with the charges. The enquiry officer cannot  base his findings on mere hypothesis. Mere ipse dixit on  his part cannot be a substitute of evidence.    45. The findings of the learned Single Judge to the  effect that "it is established with the conscience (sic) of  the Court reasonably formulated by an enquiry officer  then in the eventuality" may not be fully correct  inasmuch as the Court while exercising its power of  judicial review should also apply its mind as to whether  sufficient material had been brought on record to  sustain the findings. The conscience of the court may  not have much role to play. It is unfortunate that the  learned Single Judge did no t at all deliberate on the  contentions raised by the appellant. Discussion on the  materials available on record for the purpose of  applying the legal principles was imperative. The  Division Bench of the High Court also committed the  same error."          26.     In Indian Airlines Ltd. v Prabha D. Kanan [2006 (12) SCALE 58],  this Court held:- "46.   A judicial review of such an order would be  maintainable.  In a case of judicial review, where no  appeal is provided for, the High Court in exercise of its  jurisdiction under Article 226 of the Constitution of India  would not confine its jurisdiction only to the known tests  laid down therefor, viz., illegality, irrationality,  procedural impropriety.   It has to delve deeper into the  matter.   It would require a deeper scrutiny.

47.     We may notice that keeping in view the situational  changes and, particularly, outsourcing of the sovereign  activities by the State, this Court has been expanding the  scope of judicial review.       It includes the misdirection  in law, posing a wrong question or irrelevant question  and failure to consider relevant question.  On certain  grounds judicial review on facts is also maintainable.   Doctrine of unreasonableness has now given a way to  doctrine of proportionality.

48.     In S.N. Chandrashekar v State of Karnataka [(2006) 3  SCC 208], this Court observed:

"33.    It is now well known that the concept of error  of law includes the giving of reasons that are bad in  law or (where there is a duty to give reason)  inconsistent, unintelligible or substantially  inadequate.  ( See de Smith’s Judicial Review of  Administrative Action, 5th Edn., p. 286.)

34.     The Authority, therefore, posed unto itself a  wrong question.   What, therefore, was necessary to  be considered by BDA was whether the ingredients  contained in Section 14-A of the Act were fulfilled  and whether the requirements of the proviso  appended thereto are satisfied.   If the same had not  been satisfied, the requirements of the law must be  held to have not been satisfied.  If there had been no  proper application of mind as regards the  requirements of law, the State and the Planning  Authority must be held to have misdirected  themselves in law which would vitiate the impugned  judgment.

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35.     In Hindustan Petroleum Corpn. Ltd. v Darius  Shapur Chenai this Court referring to Cholan  Roadways Ltd. v G. Thirugnanasambandam6 held :  (SCC p.637, para 14)

"14. Even a judicial review on facts in certain  situations may be available.  In Cholan  Roadways Ltd. v. G. Thirugnanasambandam this  Court observed: (SCC p. 253, paras 34-35)

’34.  .... It is now well settled that a quasi judicial  authority must pose unto itself a correct question  so as to arrive at a correct finding of fact.   A  wrong question posed leads to a wrong answer.   In this case, furthermore, the misdirection in law  committed by the Industrial Tribunal was  apparent insofar as it did not apply the principle  of res ipsa loquitur which was relevant for the  purpose of this case and thus, failed to take into  consideration a relevant factor and furthermore  took into consideration an irrelevant fact not  germane for determining the issue, namely, that  the passengers of the bus were mandatorily  required to be examined.   The Industrial  Tribunal further failed to apply the correct  standard of proof in relation to a domestic  enquiry which is "preponderance of probability"  and applied the standard of proof required for a  criminal trial.   A case for judicial review was,  thus, clearly made out.

35.   Errors of fact can also be a subject matter of  judicial review.  (See E. v. Secy. of State for the  Home Deptt.)  Reference in this connection may  also be made to an interesting article by Paul P.  Craig, Q.C. titled "Judicial Review, Appeal and  Factor Error" published in 2004 Public Law, p.  788."

49.  Yet again in State of U.P. v Sheo Shanker Lal  Srivastava [(2006) 3 SCC 276], this Court observed:

"24.   While saying so, we are no oblivious of the  fact that the doctrine of unreasonableness is giving  way to the doctrine of proportionality.

25.  It is interesting to note that the Wednesbury  principles may not now be held to be applicable in  view of the development in constitutional law in  this behalf.  See, for example, Huang v Secy. of  State for the Home Deptt. wherein referring to R. v  Secy. of State of the Home Deptt., ex p. Daly it  was held that in certain cases, the adjudicator may  require to conduct a judicial exercise which is not  merely more intrusive than Wednesbury, but  involves a full-blown merit judgment, which is yet  more than ex p. Daly requires on a judicial review  where the court has to decide a proportionality  issue."

        27.     For the purpose of judging the respective merit and ability of the  candidates, their extra-curricular activities may be taken into consideration,   but evidently the appellate authority took into consideration a large number

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of irrelevant factors, we may notice some of them, which are only  illustrative in nature. (i)     Participated as a spectator in the fifth World Tamil Conference  held in 1981. (ii)    Conducted Literary Association Meetings. (iii)   Involved himself in religious, musical service and human relation  service. (iv)    Served in Home-guards. (v)     Acted in dramas (vi)    Undergone computer training.

28.     It also failed to take into consideration the relevant fact which inter  alia weighed with the Managing Committee of the School as also the Order  of the appellate authority that as he had served as a Secretary and  Correspondent in some other schools and, thus, he had not been giving all  the attention to his teaching works.   

29.     The Appellate Authority failed to take into consideration the fact that  the appellant had passed the Accounts test.  Even if the same was not  relevant, although there existed a Government Order in this behalf, if other  activities can be treated to be acts of merit, we fail to understand as to why  acquisition of a higher qualification for the purpose of holding the post of  Headmaster which would be helpful to him in his functioning as a head of an  educational institute would not be relevant.  Similarly, the question as to  whether the ’passing percentage’ of the students in the subjects taught by   the appellant or the respondent No. 1 for five years was 98% or 100% may  not be of much significance.

30.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.   The matter is remitted to the Joint  Director of School Education for consideration of the matter afresh strictly  in accordance with law.   

31.     Although in terms of the High Court’s Order, the appellate authority  was required to consider the respective merit and ability of the appellant/first  respondent at the relevant point of time namely when the post fell vacant,   we are of the opinion that the same would not debar it from taking into  consideration the question as to whether he has disqualified himself by any   misconduct committed by him during his tenure as Headmaster of the  School.  The judgment of the High Court is set aside. 32.     This appeal is allowed.   In the facts and circumstances of the case,  however, there shall be no order as to costs.