N ISAKKI Vs. DIRECTOR OF ELEMENTARY EDUCATION

JUDGEMENT

(1.) W.P.(MD)Nos.4295 and 4296 of 2009 are filed by the petitioners who are the headmistress of the Panchayat Union Primary School, Kovilchellaiyapuram, Vembakottai Union and TNC Alangulam, Vembakottai Union respectively challenging the seniority list of primary school headmistress as on 01.03.2009 and the consequential proceedings of the second respondent District Elementary Educational Officer, Virudhunagar District, dated 06.04.2009, insofar as it relates to the respondents 3 and 4 and also for a direction against the second respondent to revise the seniority list taking into account the rank assigned by the Teachers Recruitment Board for the appointment of secondary grade teachers in conformity with Rule 35(aa) of the Tamil Nadu State Subordinate Service Rules, 1955. Pending the above said writ petitions Mrs.K.Umadevi, Headmistress, Panchayat Union Middle School, Nathikudi Post was impleaded as 5th respondent in the writ petitions by an order dated 06.01.2010 and 04.12.2009 respectively.

(2.) The third respondent in the above said writ petitions N.Esakki has filed W.P.(MD)No.10376 of 2009 challenging the list of Middle School Headmaster as on 01.01.2009 and the consequential proceedings of the second respondent District Elementary Educational Officer, Virudhunagar District, dated 26.08.2009 insofar it relates to the fourth respondent in the said writ petition T.Arul Lilly Padma and also for a direction against the second respondent to revise the seniority list taking into account the rank assigned by the Teachers Recruitment Board for the appointment of secondary grade teachers in conformity with Rule 35(aa) of the Tamil Nadu State Subordinate Service Rules, 1955.

(3.) The petitioners in W.P.(MD)Nos.4295 and 4296 of 2009 who are working as Headmistress of the above said schools were initially appointed as secondary grade teachers on 02.08.1995 and 01.08.1995 respectively, the appointment having been made through the Teachers Recruitment Board. The said appointment is to be made only through employment offices of the Districts and their services are governed by the Tamil Nadu Elementary Education Rules which are the special rules framed by the Government. As per the Rules, especially, Rule 9 each panchayat union should be treated as a unit for the purpose of appointment of teachers. Therefore, the seniority is maintained as unit wise namely for each of the panchayat union school. In cases of option exercised by a teacher of one unit to another unit, on such transfer, such teacher would be placed junior to the junior most teacher in the said union. It is stated between 1990 and 1995, Government has not appointed teachers in the cadre of secondary grade teachers in the panchayat union schools. It was in 1995, the Government took a policy decision to appoint secondary grade teachers in panchayat union school on state wide seniority through the Teachers Recruitment Board. It was thereafter, the Teachers Recruitment Board issued notification for recruitment of secondary grade teachers to various panchayat union and the process consisted of written examination and interview and marks obtained in both the process were taken together and selection were made. The petitioners are one among the teachers appointed by the Board in the year 1995. Taking note of the fact that by such appointment through Teachers Recruitment Board, candidates were unable to be recruited in the native panchayat union, the Government has issued a Government Order in G.O.Ms.No.388, Education Science and Technical Education Department, dated 19.06.1996, directing the maintenance of seniority list of the secondary grade teachers based on the ranking given by the Teachers Recruitment Board at the time of recruitment. It was based on the said rank, the seniority list was prepared every year. It is stated that the petitioners along with the third and fourth respondents were promoted as Headmistress on 23.12.2003, on the same day. Therefore, the seniority list among the Headmistress of Elementary School fit for promotion to the post of Headmistress of Middle School Headmistress was maintained based on the rank assigned by the Board. It is stated that in the list of seniority was prepared in 2004, 2005, 2006, 2007, and 2008, the petitioners in these writ petitions were placed ahead of respondents 3 and 4. However, in the impugned seniority list prepared by the first and second respondents as on 01.03.2009, the third and fourth respondents were placed ahead of the petitioners. In those circumstances, the petitioners have made representations on 06.04.2009 to the second respondent the District Elementary Educational Officer, Virudhunagar District who by the impugned order has rejected the claim on the ground that in cases where the Primary School Headmistress given promotion on the same day, the seniority should be reckoned only from the date of initial appointment as secondary grade teachers by relying upon a circular issued by the first respondent, dated 18.11.2008. It is stated that such circular cannot be valid since it is in contravention of Rule 35(aa) of the Tamil Nadu State Subordinate and Service Rules and that in the list of seniority of secondary grade teachers, the petitioners have always been kept ahead of third and fourth respondents and even after their promotion as headmistress of primary school on 23.12.2003, they were shown ahead of third and fourth respondents till 2008 and therefore, there is no justification for the second respondent to revise the seniority list based on the circular dated 18.11.2008. It is stated that the counselling for the next promotion to the post of Middle School Headmistress is scheduled to be held on 25.05.2009 and therefore, the writ petitions filed challenging the said orders on the ground that the seniority has to be maintained as per Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules in consonance of G.O.Ms.No.388, Education Science and Technical Education Department, dated 19.06.1996 which was made as one time measure based on the rank assigned by the Teachers Recruitment Board, that the circular of the first respondent dated 18.11.2009 stated to have been relied upon by the second respondent for preparation of the impugned seniority list is not in conformity with Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules and it should be treated as nonest in law and that the first respondent having kept the petitioners ahead of the third and fourth respondent through out which has never been challenged by the third and fourth respondents are estopped from revising the seniority list; that the impugned seniority list is in violation of the Article 14 of the Constitution of India; that the impugned seniority list attempting to unsettle the settled position and the respondents 3 and 4 have never objected for being placed ahead of them within three years from the date of publication of the seniority list ever since 1995 and therefore, they are not entitled to seek revision in view of the specific bar under Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules.