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 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." 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. An appeal was preferred thereagainst before the Joint Director of School Education by the said respondent. The said appeal was, however, dismissed.
(3.) 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. 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." ;