WP/13017/2008 of R.RAJANARAYANAN Vs JOINT DIRECTOR OF SCHOOL on 23 December 2008

1. Joint Director of School Education,(Secondary Education),College Road,Chennai – 600 006.

2. District Educational Officer,Pattamangala Street,Mayiladuthurai.

3. The Secretary and Correspondent,K.S.O.High School,Manganallur,Mayiladuthurai Taluk,Nagapattinam District.

4. V. Shyamala... Respondents

Prayer: This writ petition is filed under Article 226 of theConstitution of India, praying this Court to issue a writ ofCertiorari calling for the records of the first respondent in hisproceedings in Mu.Mu.No.5644/G2/E1/08, dated 8.5.2008 and quash thesame.

For Petitioner:Mr.A.MuthukumarFor Respondents 1 & 2:Mr.K.H.Ravikumar,Government Advocate (Edu)

For 3rd Respondent:No appearanceFor 4[th] Respondent:Mr.C.Selvaraj, Senior Counsel,for Mr.S.Mani

By consent of both sides the writ petition is taken up for finaldisposal.

2. The prayer in this writ petition is to quash the orderpassed by the first respondent dated 8.5.2008 allowing the appealfiled by the 4[th] respondent by setting aside the promotion given tothe petitioner as Headmaster of the third respondent School.

3. The case of the petitioner culled out from the affidavit insupport of the writ petition are as follows:

(a) The third respondent School is a private Aided School. TheHeadmaster of the School by name N.Vaideeswaran retired from serviceon 31.5.2007. The third respondent management requested the 4[th]respondent to act as in-charge Headmistress and the School Committeedecided to call for applications from the eligible persons forpromotion to the post of Headmaster working in the School.

(b) The petitioner, 4[th] respondent and two other teachers in theSchool applied for the post of Headmaster. By proceedings dated15.12.2007, the third respondent requested all the candidates toappear for written test and interview on 21.12.2007 for selection tothe post of Headmaster. All the candidates participated in theselection. The petitioner was selected on assessment of merit andability and the 4[th] respondent came in the 4[th] position.

(c) Consequently the petitioner was promoted to the post ofHeadmaster on 26.12.2007 and he is discharging his duties from thesaid date as Headmaster of the third respondent School. In the thirdrespondent School, 35 teachers and five non-teaching staff areworking and the students strength for the year 2007-2008 is 1272.

(d) It is the case of the petitioner that while serving asHeadmaster of the third respondent school, the petitioner was servedwith the order passed by the first respondent dated 8.5.2008, whereinthe first respondent set aside the promotion of the petitioner asHeadmaster and also directed the third respondent management toappoint the 4[th] respondent as Headmistress on the basis of seniorityand also on the ground that the 4[th] respondent served as AssistantHeadmistress of the School from 2.6.2005.

(e) The said order is challenged in this writ petition on theground that while allowing the appeal filed by the 4[th] respondent, thefirst respondent has not given any notice or opportunity of hearing;

on earlier occasion the 4[th] respondent filed W.P.No.525 of 2008 beforethis Court and challenged the order of promotion given to thepetitioner dated 26.12.2007 wherein the 4[th] respondent sought toimplead the petitioner as 4[th] respondent and the said writ petitionwas dismissed in limini granting liberty to the 4[th] respondent toapproach the appellate authority; even though the 4[th] respondentsought to implead the petitioner as 4[th] respondent in the above writpetition, he was not impleaded as party respondent in the said writpetition; and that without issuing notice, the firstrespondent/appellate authority set aside the grant of promotion tothe petitioner.

(f) It is also the case of the petitioner that on merits thepetitioner is entitled to succeed in view of the statutory rule viz.,Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation)Rules, 1974, wherein it is stated that promotion to the post ofHeadmaster in Private Aided Schools shall be made on the basis ofmerit and ability and seniority can be considered only when merit andability are approximately equal.

(g) The merit and ability of the petitioner, 4[th] respondent andtwo other staff members were considered, assessed and determined bythe School Committee of the third respondent School by conductingwritten test and interview and the petitioner was found first in themerit list, whereas the 4[th] respondent was found 4[th] in the merit list.Therefore, on the basis of assessment of merit and ability, thepetitioner was given promotion, which cannot be set aside by thefirst respondent on the ground that the 4[th] respondent was senior thanthe petitioner or she served as Assistant Headmistress. On the abovesaid ground the impugned order in the writ petition is sought to bequashed.

4. The 4[th] respondent filed counter affidavit stating that shewas appointed as Assistant Headmistress from 2.6.2005 and was put incharge of the post and she is the senior-most Teacher in theB.T.Assistant cadre in the third respondent School and as per theseniority, she is entitled to be promoted as Headmistress since the4[th] respondent joined in the School in the year 1987 and thepetitioner joined in the school only on 4.4.2001. According to the4[th] respondent, based on the 20 years of teaching experience and thehigher qualification secured by the 4[th] respondent, the firstrespondent allowed the appeal and there is no illegality in the saidorder.

5. The second respondent filed counter affidavit by statingthat there is no provision to conduct separate examination to assessthe merit and ability for promotion to the post of Headmaster underthe rules and therefore the appeal filed by the 4[th] respondent wasallowed by the first respondent considering the long number of yearsof service and the 4[th] respondent is functioning as Assistant

Headmistress from 2.6.2005 and there is no illegality in the orderpassed by the first respondent in cancelling the order of promotiongiven to the petitioner.

6. The learned counsel for the petitioner argued that thepetitioner satisfies the eligibility prescribed under the rules forpromotion to the post of Headmaster and as per Rule 15(4) of theTamil Nadu Private Schools (Regulation) Rules, 1974, promotions areto be made on the ground of merit and ability and the SchoolCommittee conducted written test as well as interview to assess themerit and ability. The petitioner, 4[th] respondent and other eligiblepersons applied, appeared for the written test as well as oral testand the 4[th] respondent having taken a chance by participating in theselection, who was found less meritorious than the petitioner, cannotchallenge the mode of selection, without any demur and there is noillegality in selecting the petitioner as Headmaster. The learnedcounsel contended that the order of the first respondent is not onlycontrary to the said statutory rule, but also in violation of theprinciples of natural justice as well as violation of the judgmentsof this Court reported in 2001 WLR 222 (M.Siluvai Rajan v. Directorof School Education & Others), 2002 WLR 81 (S.P.Jalaja v. KarapettaiNadar Girls Higher Secondary School & Others), (2007) 3 MLJ 171(G.Annamalai v. Secretary & Commissioner, Education Department) andthe decision of the Honourable supreme Court reported in (2007) 6 SCC382 : 2008 (1) LW 763 (S.Sethuraman v. R.Venkataraman). The learnedcounsel also submitted that the 4[th] respondent passed the higherqualification through correspondence course and therefore noweightage can be given to the said higher qualifications.

7. The learned Senior Counsel appearing for the 4[th] respondenton the other hand submitted that the 4[th] respondent is far senior tothe petitioner and the assessment of merit and ability by conductingwritten-cum-oral test by the third respondent School Committee isillegal. The learned Senior Counsel also submitted that in theappeal filed by the 4[th] respondent, the first respondent consideredall the aspects and set aside the order of promotion given to thepetitioner and there is no illegality in the said order.

8. The learned Government Advocate appearing for therespondents 1 to 3 adopted the arguments of the learned Seniorcounsel for the 4[th] respondent.

9. Admittedly the petitioner and the 4[th] respondent arequalified for being considered for promotion to the post ofHeadmaster of the third respondent Aided School. The statutoryprovision as to how the promotion shall be made by the SchoolCommittee in Aided Schools is clearly spelt out in Rule 15(4) of theTamil Nadu Recognised Private Schools (Regulation) Rules, 1974, whichreads thus:

"15(4) (i) Promotion shall be made on groundsof merit and ability seniority being consideredonly when merit and ability are approximatelyequal.(ii) Appointments to the various categoriesof teachers shall be made by the followingmethods:(i) Promotion among the qualified teachers in thatschool.(ii) If no qualified and suitable candidate isavailable by method (i) above,-(a)Appointment of other persons employed in thatschool, provided they are fully qualified to holdthe post of teachers.(b)Appointment of teachers from any otherschool.(c)Direct recruitment.In the case of appointment from any otherschool or by direct recruitment, the SchoolCommittee shall obtain the prior permission of theDistrict Educational Officer in respect of Pre-Primary, Primary and Middle School and that of theChief Educational Officer in respect of HighSchools and Higher Secondary Schools, TeachersTraining Institutions setting out the reasons forsuch appointment. In respect of corporate bodyrunning more than one school, the schools underthat body shall be treated as one unit for purposeof this rule.

(d) Appointment to the post of Headmaster ofHigher Secondary School shall be made by themethod specified in clause (ii) either from thecategory of Headmasters of High Schools orTeachers Training Institutes or from the categoryof Post Graduate Assistants in academic subjectsor Post Graduate Assistants in Languages providedthey possess the prescribed qualifications."

10. From the report submitted by the third respondent to thefirst respondent dated 14.3.2008 it is evident that the petitionerhas secured 83.5 marks, whereas the 4th respondent scored only 38marks out of 100 during the selection conducted by the thirdrespondent and following are the details of the marks awarded by theSchool Committee:

Marks obtained in theR.RajanarayananV. ShyamalaInterview(Petitioner)(4th Respondent)Interview(Petitioner)(4th Respondent)1. Written Test28 1/2022. Letter Writing09013. Interview15062. Letter Writing09013. Interview1506

Thus, the School Committee, on assessment of merit and ability foundthat the petitioner is the fit person to hold the post of Headmaster,as he was found more meritorious.

11. The assessment of merit and ability of the eligiblecandidates by the School Committee, by conducting written test, isvalid or not was considered by the Division Bench of this Court inthe decision reported in 2002 WLR 81 (S.P.Jalaja v. Karapettai NadarGirls Higher Secondary School & Others). In the said decision, theDivision Bench held that when the rule does not provide for any modeof considering the assessment of merit and ability, conducting ofwritten test to assess the merit and ability cannot be found faultwith.

12. Whether a person who qualified himself throughCorrespondence course, can be preferred based on the basis ofqualification, was also considered by the Division Bench of thisCourt in the decision reported in 2001 WLR 222 (M.Siluvai Rajan v.Director of School Education & Others), wherein the Division Benchheld that the persons undergone regular degree course, than thepersons undergone degrees through correspondence course, certainlycan be preferred.

13. In the decision reported in (2007) 3 MLJ 171 (G.Annamalai v.Secretary and Commissioner, Education department), in which I wasalso a party, whether a person can claim primacy in the selectionpost and how the same can be filled up in terms of Rule 15(4) areconsidered and decided. In paragraphs 12 to 15 the Division Benchheld thus:

"12. Admittedly the appellant was notselected and promoted as Headmaster of the Schooland he was only Assistant Headmaster (PG grade),for which he was paid salary also. To claim thesalary of the post of Headmaster, the appellantshould have been appointed and worked in thatpost. Though the appellant was given in-charge ofthe post of Headmaster for certain period, that isduring the period of leave taken by theHeadmaster, he cannot claim that he should begiven the scale of pay of the post of Headmaster,particularly when he received the salary of PGAssistant along with the special pay for havingheld the post of Assistant Headmaster and furtherhaving retired from service as PG Assistant on31.8.1995 with the designation of AssistantHeadmaster.

13. (a) The Honourable Supreme Court, inthe decision reported in AIR 1966 SC 1547 (Stateof Orissa v. Durga Charan Das) considered similarrule with regard to promotion by way of selectionand in para 6 held as follows, "6.The Rule in question protects theconditions of service as respects pay,allowances, leave and pension of the membersfalling under its purview, and it guaranteesthat in no case shall the terms in relationto the said conditions of service be lessfavourable than they were immediately beforethe 1st of April, 1936. The question is: doany of the conditions specified in R.6include a claim for promotion to a higherselection post and confirmation in it ? Itis well known that promotion to a selectionpost is not a matter of right which can beclaimed merely by seniority. Normally, inconsidering the question of a publicservant's claim for promotion to a selectionpost, his seniority and his merits have to beconsidered; and so, it seems to us verydifficult to accept the view taken by theHigh Court that in R.6 of the Protection Rules, a guarantee can be inferred in regardto promotion to a selection post. What theRule guarantees is that the public servantswho were transferred to Orissa will notsuffer in regard to their pay, allowances,leave and pension; and these respectiveconditions do not seem to include a claim forpromotion to a higher selection post; andindeed, it seems very unlikely that anyprotection could ever have been reasonablyintended to be given in regard to promotionto a selection post."

(b) In AIR 1967 SC 1910 (Sant Ram v. Stateof Rajasthan), the Honourable Supreme Court inpara 6 held thus,

"6.......... we are of the opinionthat the three posts of Inspector General ofPolice, Additional Inspector General ofPolice and Deputy Inspector General of Policein Rajasthan State are selection posts andoutside the junior or senior time-scales ofpay. If these three posts are selectionposts it is manifest that the State ofRajasthan is not bound to promote thepetitioner merely because he stood first inthe Gradation List. The circumstances thatthese posts are classed as 'Selection GradePosts' itself suggests that promotion tothese posts is not automatic being made onlyon the basis of ranking in the Gradation Listbut the question of merit enters in promotionto selection posts. In our opinion, therespondents are fight in their contentionthat the ranking or position in the GradationList does not confer any right on thepetitioner to be promoted to selection postand that is a well-established rule thatpromotion to selection grades or selectionposts is to be based primarily on merit andnot on seniority alone. The principle isthat when the claims of officers to selectionposts is under consideration, seniorityshould not be regarded except where the meritof the officers is judged to be equal and noothercriterionis,therefore,available. ........."

(c) In the decision reported in (2001) 5 SCC60 (Central Council for Research in Ayurveda &Siddha v. Dr.K.Santhakumari) in para 12, theHonourable Supreme Court held as follows, "12. In the instant case, the selectionwas made by the Departmental PromotionCommittee. The Committee must haveconsidered all relevant facts including theinter se merit and ability of the candidatesand prepared the select list on that basis.The respondent, though senior in comparisonto other candidates, secured a lower place inthe select list, evidently because theprinciple of "merit-cum-seniority" had beenapplied by the Departmental PromotionCommittee. The respondent has no grievancethat there were any mala fides on the part ofthe Departmental Promotion Committee. Theonly contention urged by the respondent isthat the Departmental Promotion Committee didnot follow the principle of "seniority-cum-fitness". In the High Court, the appellantsherein failed to point out that the promotionis in respect of a "selection post" and theprinciple to be applied is "merit-cum-seniority". Had the appellants pointed outthe true position, the learned Single Judgewould not have granted relief in favour ofthe respondent. If the learned counsel hasmade an admission or concession inadvertentlyor under a mistaken impression of law, it isnot binding on his client and the same cannotensure to the benefit of any party."

(d) In the decision reported in (2003) 6 SCC535 (Dwaraka Prasad v. Union of India) in para 24the Honourable Supreme Court considered the scopeof Articles 14 and 16 in the matter of promotionand held thus, "24. Articles 14 and 16 of theConstitution of India cannot be pressed intoservice to describe the fixation of lowerquota for POs as discriminatory. It is wellestablished in law that the right to beconsidered for promotion on fair and equalbasis without discrimination may be claimedas a legal and a fundamental right underArticles 14 and 16 of the Constitution but

chances of promotion as such cannot beclaimed as of right. ....................."

14. It could be seen from the counteraffidavit that on 13.5.1985, the School Committeeassessed the merit and ability of all the sixcandidates including that of the appellant andalso the past conduct of the appellant includingthe punishment imposed. According to themanagement, the appellant is not fit to bepromoted as Headmaster of the School and it is thedecision taken by the School Committee, who is thecompetent authority under the Act. A similarissue arose before a Division Bench of this Courtin the decision reported in 2002 WLR 81(S.P.Jalaja v. Karapettai Nadar Girl HigherSecondary School & Ors.) wherein almost inidentical circumstances the appellant therein wasnot given promotion as Headmistress, which wasalso challenged by the appellant repeatedly andultimately the Division Bench in para 15 upheldthe contention of the School Committee that meritand ability of all the candidates were assessedand the appellant therein was found not suitable.The Division Bench in para 15 held as follows, "....... As rightly pointed out by thelearned counsel, the School Committee alsotook into account the entire service careerof the candidates who had applied for thehigher post. The Headmistress of the Schooloccupies an unique position and she is thelinchpin around and the school activitiesrevolve around her and she should have fullconfidence of the teachers, pupils, schoolauthorities and must have administrativecontrol, managerial skill, financial controlover the funds of the school and she mustsecure full and unstinted co-operation fromteachers and pupils for the past performanceof the school. Needless to mention, anydeficiency on the part of the Headmistresswould reflect not upon the individualmembers, but would reflect on the institutionitself."

15. In view of the settled legal positionand in the light of Rule 15(4) of the Tamil NaduRecognised Private Schools Regulation Rules, 1974,the claim of the appellant that he should be retrospectively given promotion with monitorybenefits is unsustainable and we hold that theorder of the learned single Judge in dismissingthe writ petition is in conformity with Rule 15 ofthe Rules."

14. Recently I have considered similar issue with regard topromotion to the B.T.Assistant Post in W.P.No.3455 and 4467 of 2004order dated 6.3.2008, following the decision of the Supreme Courtreported in (2007) 6 SCC 382 : 2008 (1) LW 763 (S.Sethuraman v.R.Venkataraman). In the said decision the Supreme Court inparagraphs 16 and 17 held thus:

Conclusion

"16. The terms and conditions of service ofthe teachers of an aided school are governed bythe Act and the rules framed thereunder. TheManaging Committee of the school in terms of Rule15 of the Rules are enjoined with a duty to fillup the post of Headmaster primarily on the basisof “merit and ability”. Indisputably, theCommittee while appointing a person must take intoconsideration the merit and ability of thecandidate alone and only when the respective meritand ability of two candidates are equal, senioritywill have some role to play. Respondent 1 issenior to the appellant only by 13 days. At therelevant point of time, the appellant had passedthe prescribed Accounts test for Headmastersconducted by the Tamil Nadu Public ServiceCommission in the year 1989. Before us variousother factors have been placed for the purpose ofshowing that apart from the fact that theappellant was more qualified, Respondent 1 havingregard to his past services should not have beenconsidered suitable for appointment to the saidpost.

17. Whileexercisingtheappellatejurisdiction, the appellate authority hasindisputably a plenary power. It may not onlyconsider the respective educational qualificationsand other activities of the respective candidatesfor the purpose of arriving at a decision as towhich of the two candidates had better merit andability, but it should exercise its jurisdictionkeeping in view the views of the ManagingCommittee. If two views are possible, ordinarily,the view of the Managing Committee should beallowed to prevail."

Following the said Supreme Court decision, I allowed the writpetition and directed the management to select a person by followingRule 15(4) since merit and ability was not assessed in the earlierselection. The said decision of mine was confirmed by the DivisionBench in W.A.No.517 and 518 of 2008 Judgment, dated 28.4.2008.

15. The 4th respondent, who has taken part in the selection forthe post of Headmaster by appearing in the written test as well as inoral test and having taken a chance without any demur, whether canchallenge the procedures adopted by the Selection Committee and themode of the selection on the ground of estoppel, came up forconsideration in the following decisions:

(i) In the decision reported in AIR 1978 SC 28 (I.L.Honnegoudav. State of Karnataka and others) the Honourable Supreme Court heldthus, "In view of our judgment in Appeals Nos.883and 898 to 905 of 1975 : (Reported in AIR 1977 SC876) which has just been delivered and the factthat the appellant acquiesced to the 1970 Rules byapplying for the post of the Village Accountant,appearing before the Recruitment Committee forinterview in 1972 and 1974 and taking a chance ofbeing selected, the present appeal which questionsthe constitutionality of Rules 4 and 5 of the 1970Rules cannot be allowed. It is accordinglydismissed but without any order as to costs."

(ii) In 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh KumarShukla) in paragraph 24, the Honourable Supreme Court held thus,

"24. Moreover, this is a case where thepetitioner in the writ petition should not havebeen granted any relief. He had appeared for theexamination without protest. He filed the petitiononly after he had perhaps realised that he wouldnot succeed in the examination. The High Courtitself has observed that the setting aside of theresults of examinations held in the otherdistricts would cause hardship to the candidateswho had appeared there. The same yardstick shouldhave been applied to the candidates in thedistrict of Kanpur also. They were not responsiblefor the conduct of the examination."

(iii) In AIR 1995 SC 1088 = (1995) 3 SCC 486 (Madan Lal v. Stateof Jammu & Kashmir), (SCC p.9) it is held thus, "9. ........ The petitioners also appeared atthe oral interview conducted by the Members concerned of the Commission who interviewed thepetitioners as well as the contesting respondentsconcerned. Thus the petitioners took a chance toget themselves selected at the said oralinterview. Only because they did not findthemselves to have emerged successful as a resultof their combined performance both at written testand oral interview, they have filed this petition.It is now well settled that if a candidate takes acalculated chance and appears at the interview,then, only because the result of the interview isnot palatable to him, he cannot turn round andsubsequently contend that the process of interviewwas unfair or the Selection Committee was notproperly constituted. In the case of Om PrakashShukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043)it has been clearly laid down by a Bench of threelearned Judges of this Court that when thepetitioner appeared at the examination withoutprotest and when he found that he would notsucceed in examination he filed a petitionchallenging the said examination, the High Courtshould not have granted any relief to such apetitioner." (iv) The above said decisions of the Supreme Court were followedby the Full Bench of this Court in the decision reported in AIR 2000MADRAS 174 (R.Murali v. R.Kamalakkannan)(FB) and in paragraph 55,question No.2 was answered thus, "Question No.2: We hold that writ petitionersare not entitled to challenge the selection afterhaving participated in the written examination onthe principle of estoppel."

16. The above referred judgments are followed in a recentdecision of a Division Bench of this Court in (2007) 5 MLJ 648(Indian Airlines Ltd. v.K.Narayanan), wherein the contention of themanagement therein that person participated in selection in terms ofthe notification are estopped from challenging the mode of selectionor the conditions contained in the instructions/rules was upheld.

17. I have also considered similar issue in W.P.(MD)Nos.9694 and9695 of 2007 and dismissed the writ petitions by order dated22.11.2007, holding that the rules of selection are binding on thecandidates, who participate in the selection without demur. The writappeals preferred against the said order in W.A.(MD)Nos.90 and 91 of2008 were also dismissed by Division Bench by judgment dated5.2.2008.

18. In the decision reported in (2008) 4 SCC 171 : 2008 (2)Supreme 328 (Dhananjay Malik & Others v. State of Uttaranchal &Others) in paragraphs 7 to 11 (in SCC), the Honourable Supreme Courtheld thus, "7. It is not disputed that the respondent-writ petitioners herein participated in theprocess of selection knowing fully well that theeducational qualification was clearly indicatedin the advertisement itself as BPE or graduatewith diploma in Physical Education. Havingunsuccessfully participated in the process ofselection without any demur they are estoppedfrom challenging the selection criterion interalia that the advertisement and selection withregard to requisite educational qualificationswere contrary to the Rules.

8. In Madan Lal v. State of J&K this Courtpointed out that when the petitioners appearedat the oral interview conducted by the membersconcerned of the Commission who interviewed thepetitioners as well as the contestingrespondents concerned, the petitioners took achance to get themselves selected at the saidoral interview. Therefore, only because they didnot find themselves to have emerged successfulas a result of their combined performance bothat written test and oral interview, they havefiled writ petitions. This Court further pointedout that if a candidate takes a calculatedchance and appears at the interview, then, onlybecause the result of the interview is notpalatable to him, he cannot turn round andsubsequently contend that the process ofinterview was unfair or the Selection Committeewas not properly constituted.

9. In the present case, as already pointedout, the respondent-writ petitioners hereinparticipated in the selection process withoutany demur; they are estopped from complainingthat the selection process was not in accordancewith the Rules. If they think that theadvertisement and selection process were not inaccordance with the Rules they could havechallenged the advertisement and selectionprocess without participating in the selectionprocess. This has not been done.

10. In a recent judgment in MarripatiNagaraja v. Govt. of A.P., SCR at p.516, thisCourt has succinctly held that the appellantshad appeared at the examination without anydemur. They did not question the validity offixing the said date before the appropriateauthority. They are, therefore, estopped andprecluded from questioning the selectionprocess.

11. We are of the view that the DivisionBench of the High Court could have dismissed theappeal on this score alone as has been done bythe learned Single Judge."

19. In the light of the above settled legal position, I holdthat the procedure adopted by the third respondent in selecting thepetitioner as Headmaster of the third respondent School is legal andvalid and the 4th respondent is not entitled to challenge the same inthe appeal filed before the first respondent.

20. Further, while setting aside the impugned order the firstrespondent has not issued any notice to the petitioner and set asidethe promotion given to the petitioner. The non-issuance of noticeand setting aside the promotion given to the petitioner is violativeof section 43 of the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973, and in section 43(2) it is stated as follows:"43(2).On receipt of any such appeal, theappellate authority shall, after-(i)giving the parties an opportunity ofmaking their representations,(ii) making, if necessary, such inquiry as itdeems fit, and

(iii) considering all the circumstances ofthe case, make such order as it deems just andequitable."

The said statutory provision is also not followed by the firstrespondent while disposing of the appeal. Hence on any ground theimpugned order passed by the first respondent cannot be sustained andthe writ petitioner is entitled to succeed.

21. In the result, the impugned order dated 8.5.2008 is setaside. The second respondent is directed to approve the appointmentof the petitioner as Headmaster of the third respondent school from

26.12.2007, within a period of four weeks from the date of receipt ofcopy of this order. No costs. Connected miscellaneous petitions areclosed.

Sd/Asst.Registrar

/true copy/

Sub Asst.Registrar

vrTo1.The Joint Director of School Education,(Secondary Education), College Road, Chennai – 600 006.2.The District Educational Officer,Pattamangala Street, Mayiladuthurai.3.The Secretary and Correspondent, K.S.O.High School,Manganallur, Mayiladuthurai Taluk,Nagapattinam District.1 CC to the Government Pleader, SR NO.724311 CC To Mr.S.Mani, Advocate, SR NO.721071 CC To Mr.A.Muthukumar, Advocate, SR NO.72291W.P.No.13017 of 2008 msm(co)pmk/5.1.2009.