Holding

The appellate authority must decide promotion strictly according to Rule 15(4), giving weight to the Managing Committee’s assessment, and the doctrine of estoppel does not bar the appellant from challenging the order; consequently the appellate authority’s order was set aside.

Summary

The case concerned the promotion of a teacher to Headmaster in a Tamil Nadu private school governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the 1974 Rules. The Managing Committee had evaluated merit and ability and appointed the appellant, Sethuraman, but the senior respondent, Venkataraman, challenged the appointment before the Joint Director of School Education, who later held that the two candidates were equally meritorious and seniority should decide, appointing Venkataraman. The appellant obtained relief from a Single Judge of the Madras High Court, which was overturned by a Division Bench on the ground of estoppel. The Supreme Court held that the appellate authority must decide strictly under Rule 15(4), giving due weight to the Managing Committee’s assessment, and that estoppel does not apply. It found that the appellate authority had considered many irrelevant factors and set aside its order, remitting the matter for fresh consideration. The appeal was allowed.

Issues considered

The appellate authority’s power to decide promotion under Rule 15(4) and the relevance of factors considered.
Whether the principle of estoppel bars the appellant from challenging the appellate authority’s order.
Whether the High Court correctly applied judicial review standards, including error apparent on the face of the record.
Whether the Managing Committee’s view should prevail when there is a conflict of opinion.
Whether seniority can be considered when merit and ability are equal.

Legislation cited

Constitution of Indias. Article 226

Subjects

PromotionHeadmasterMerit and abilitySeniorityEstoppelAppellate authorityTamil Nadu Private Schools RulesJudicial reviewIrrelevant factorsManaging Committee

Judgment

A S. SETHURAMAN ~
v.
R. VENKA TARAMAN AND ORS.

MAY 15, 2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Service Law-Promotion-To the post of Headmaster-Promotion of
appellant on the basis of merit-Confirmed by Appellate Authority-Re- }
I

examination of the matter by Appellate Authority at the direction of High
c Court and on being consented by the parties-By final order Appellate
Authority directing promotion of the respondent-Final Order challenged by
.appellant-Single Judge of High Court setting aside the order of Appellate
Authority holding that Authorities should be slow in interfering with the
selection made by Managing Committee-Division Bench of High Court
D upholding the order of Appellate Authority on the ground that appellant
having consented to re-examination was estoppedfrom contesting the order-
On appeal, held: Most of the considerations for judging merit of the respondent
by the Appellate Authority were irrelevant-Appel/ate Authority though has
plenary power, but it should exercise its jurisdiction keeping in view, the "
view ofManaging Committee-When two views are possible, view ofManaging
E Committee would prevail-Principle of estoppel is not applicable to the
present case-Matter remitted to Appellate Authority-Tamil Nadu Private
Schools (Regulation) Rules, 1974-r./5(4)-Tami/ Nadu Private Schools
(Regulation) Act, 1973-Estoppel.

Managing Committee of the school made comparative evaluation of merit
F
and ability of the appellant vis-a-vis respondent No. 1 for promotion to the
y
post of Headmaster. Finding the merit and ability of the appellant better, he
y
was appointed to the post. Appeal against the appointment was dism.issed by
Appellate Authority. In Writ Petition thereagainst, matter was remitted back
to the Appellate Authority on consent from both the parties. On
G reconsideration, Appellate Authority opined tha~ merit and ability of both,
app~llant and respondent No. 1, were equal and since respondent No. 1 was
senior, he should be selected for the post. Appellant filed Writ Petition against
the decision. Single Judge of High Court allowed the petition holding that
except under extra-ordinary circumstances, Authorities should be slow in

H 922
S. SETHURAMAN v. R. VENKATARAMAN 923
:- {)
_"' interfering with the selection made by the school management to the post of A
Headmaster. In Writ appeal, Division Bench of High Court set aside the order
of Single Judge inter alia holding that parties having submitted to the
jurisdiction of Appellate Authority, appellant was estopped from contending
the decision thereof. Hence the present appeal.

Allowing the appeal and remitting the matter to the Appellate Authority, B
the Court

HELD: 1.1. Appellate Authority was exercising a quasi judicial function.
4, 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. c
Most of the considerations, which weighed with the appellate authority while
judging the merit and ability of the first respondent, were irrelevant.
[Paras 21, 23, 24 and 28] [932-C; 933-B-H; 934-A-B[

1.2. While exercising the appellate jurisdiction, the Appellate Authority D
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 mind
the views of the Managing Committee. If two views are possible, ordinarily,
the view of the Managing Committee should be allowed to prevail. E
[Para 17) (931-F)

1.3. 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 Tamil Nadu Private Schools (Regula'.ion) Rules, F
1974. The High Court did not and could not enlarge the scope of th~ :ippcal.
If the Appellate Authority thought otherwise its order would not be ;ustainable.
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 tested the
orders of the Appellate Authority, and consequently that of the Single Judge G
of the High Co11rt on their own merits and not de'hors the same.
[Paras 19 and 20) (931-H; 932-A-B)

1.4. The decision of the Appellate Authority, 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 H
924 SUPREME COURT REPORTS [2007] 6 S.C.R.

A the ground that the order impugned before it contained errors apparent on
the face of the records. Whereas the Single Judge of the High Court in
passing its Order took the said principle into consideration, the Division
Bench failed to do so. [Para 22) [932-D-E)

Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors.,
B [20061 4 SCC 713 and Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 12
SCALE 58, relied on

S.N. Chandrashekar v. State ofKarnataka, (200613 SCC 208 and State
of U.P. v. Shea Shanker Lal Srivastava, (2006) 3 SCC 276, referred to }
'
C 2. 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
D the Division Bench 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 hy itself could
not have been found to 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
E the face of the records. (Para 22) [932-F-H; 933-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2533 of2007.

From the Final Order dated 15.9.2006 of the High Court of Judicature at
Madras in W.A. No. 1638/2003.
F
K. Parasaran, Sr. Adv. and V. Balachandran for the Appellant.

T.L.V. Iyer, L.N. Rao, Sr. Advs., T. Raja, Ragenth Basant and Senthil
Jagadeesan for the Respondents.

G The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Recruitment/Promotion to the pqst of Headmaster in an aided or
unaided school in the State of Tamil Nadu is governed by Tamil Nadu
H Recognised Private Schools (Regulation) Act, i973 and Tamil Nadu Private
S. SETHURAMAN v. R. VENKA TARAMAN (S.B. SINHA, J.] 925
"'1' Schools (Regulation) ~ules, 1974 (Rules), Rule 15(4) whereof reads as under:- A
"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 B
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, -
c
(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. D
In the case of appointment from any other school or by direct
recruitment, the School Committee shall obtain the prior permission of
rI 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 E
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 F
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 G
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-
a-vis respondent no. I and opined that the merit and ability of the former is
better than the latter. Some other factors including the one that the first H
~

926 SUPREME COURT REPORTS (2007] 6 S.C.R.

A respondent was holding the post of Secretary and correspondent in another ,,
.
'

k
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,
B 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.
t
I

c 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 ·-
D 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 1
E 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
petit!oner or the fourth respondent who could be appointed as a
Headmaster on the basis of inter se merits etc."
F
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.

G 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 ;if headmaster the
same being very vital for the day-to-day management of the school.
H
S. SETHURAMAN v. R. VENKATARAMAN [S.B. SINHA,J.] 927
!>-()
9. The learned Judge was of the view that the second respondent had A
_, omitted to deal with the overwhelming materials which were considered by the
school committee while selecting the appellant for the post of headmaster.

10. The Court further held that the opinion of the Managing Committee
should not ordinarily be set aside by the authority stating:-
B
"l 0. 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
i 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 c
.' 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 D
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
E
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 F
~
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
G
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 H
928 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 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.

B 12. The Order of the learned Single Judge, however, was set aside by
a Division Bench of the said High Court inter alia opining:-

(0 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 r
c 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.
D (fu) 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 case. ""(
I
(iv) Parties hereto having submitted themselves to the jurisdiction of
E 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
F 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
G · 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
H respondent naturally applied the principle of seniority, since Rule
S. SETHURAMAN v. R. VENKATARAMAN [S.B. SINHA,}. ) 929
I
~ 15(4)(i) enables him to consider seniority where merit and ability A
are equal. Therefore, the order of the second respondent does
not suffer from any illegality.

(viii) Respondent No. I 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 B
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
app,ellant in assailing the said judgment submitted that the Division Bench of C
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 D
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 E
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 tht~ monthly
magazine "Thondu" by the Gandhi Peace Foundation, Chidambaram.
He participated as a spectator in the fifth World Tamil Conference held p
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 G
District level, State level and Southern India level Science and
Technology exhibitions and won many prizes. He participated in many
.{ researcher's 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
H
930 SUPREME COURT REPORTS (2007] 6 S.C.R.

A served as Assistant Commissioner of Bharath Scouts and Guides.
After registration as a Ph.D 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
B 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
c 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
D 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.

E 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
F (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.

G Thiru S. Sethuraman Thiru R. Venkataraman

1987-88 1987-88

1988-89 Five years 1988-89 Five years

1989-9098% 1989-90 100%
H
S. SETHURAMANv. R. VENKATARAMAN [S.B. SINHA.J.] 931
1990-91 1990-91 A
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
B
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 c
of 'merit and ability'. Indisputably, the Committee while appointing a person
must take into consideration the merit and ability of the candidate alone and
only when the respective merit and ability of two candidates are equal,
seniority will have some role to play. Respondent No. I 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 D
Nadu Public Service Commission in the year I 989. 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. I having regard to
•
his past services should not have been considered suitable for appointment
to the said post. E
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 F
)' 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. G

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
H
932 SUPREME COURT REPORTS [2007) 6 S.C.R.

A 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 tested the orders of the Appellate Authority and consequently the
B 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
C 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.
D
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 -i
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
E 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
F 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
G appellate authority pursuant to the order of the Division Bench, which it will
be~ 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 be a ground for his becoming ineligible to
H challenge the final order passed by the appellate authority when a large
- ,
S. SETHURAMAN v. R. VENKATARAMAN [S.B. SINHA, J.] 933
>J number of jurisdictional errors were committed by it and were otherwise A
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:-
B
''I. Though a Tamil Teacher, had undergone computer training.
2. Obtained certificate in Health and Hygiene from Poona.
.f 3. Obtained many certificates in the subject of Tamil in which he
teaches.
4. Served as Editor for the monthly magazine "Thondu" by the
c
- 5.
Gandhi Peace Foundation, Chidambaram.
Participated as a spectator in the fifth World Tamil Conference
held in 1981.
6. Conducted Literary Association meetings. D
7. Won prizes in essay and recitation competitions.

r 8. Involved himself in religious service, musical service, sarvodaya
• service and human relation service.
9. Served in Home-guards. E
10. Acted in dramas.
11. Has special ability in his field.
12. Has speaking and writing skills.
13. Undergone computer training. F
k
-y
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. G
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
H
934 SUPREME COURT REPORTS [2007] 6 S.C.R.
-
A 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-
B 88-1991-92) is I00%."

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

25. In Narinder Mohan Ary'a v. United India Insurance Co. ltd and ).
•
Ors., (2006] 4 SCC 713, this Court held:-
c
"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
-
D 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 b11t the
question which was required to be posed and necessary should have
been as to whether some evidence adduced would lead to the
E conclusion as regards the guilt of the delinquent officer or not. The
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.

F 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
G court may not have much role to play. It is unfortunate that the
learned Single Judge did not 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."
H
S. SETHURAMAN v. R. VENKATARAMAN (S.B. SINHA, J.] 935
~
"'-1 26. In Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 12 SCALE 58, A
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 B
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 c
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, D
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.) E

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 F
~ 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.

35. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai this G
Court referring to Cho/an Roadways Ltd. v. G. Thirugnanasambandam'
held: sec p.637, para 14
...
"14. Even a judicial review on facts in certain situations may be

H
936 SUPREME COURT REPORTS [2007] 6 S.C.R.

'A available. In Cho/an Roadways Ltd v. G. Thirugnanasamhandam, k
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.
B 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 /oquitur 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
c 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,
D 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"
E published in 2004 Public Law, p. 788."
49. Yet again in State of UP. v. Shea 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
F 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
G 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."
H
S. SETHURAMAN v. R. VENKATARAMAN [S.B. SINHA, J.) 937
"./ 27. For the purpose of judging the respective merit and ability of the A
candidates, their extra-curricular activities may be taken into consideration,
but evidently the appellate authority took into consideration a large number
of irrelevant factors, we may notice some of them, which are only illustrative
in nature.

m Participated as a spectator in the fifth World Tamil Conference B
held in 1981.
(ii) Conducted Literary Association Meetings.
(iii} Involved himself in religious, musical service and human relation
service.
c
(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 D
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 E
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~ to
F
....... whether the 'passing percentage' of the students in the subjects taught by
~
the appellant or the respondent No. I for five years was 98% or 100% may
not be of much significance.

30. For the reasons aforementioned, the impugned judgment cannot be G
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 H
938 SUPREME COURT REPORTS [2007) 6 S.C.R.

A
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 bis tenure as Headmaster of the School.
The judgment of the High Court is set aside.
B
32. This appeal is allowed. In the facts and circumstances of the case,
however, there shall be no order as to costs. ·

K.K.T. • Appeal allowed.

c

f
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