K. GUNAVATHI v. V. SANGEETH KUMAR & Ors.

between 35% and 50% marks. Based on the said A selection the government proceeded to appoint a total of 1683 candidates. Out of the remaining 197 posts that remained vacant (1880-1683 = 197) 22 posts were covered by various interim orders of the High Court leaving the actual number of vacancies at 175. By order dated 09.07.2009, the Civil Appeal was disposed of holding that the special recruitment test held on 12.10.2008 pursuant to the High Court's order dated 22.08.2008, being a one time exception and dictated by sympathetic grounds insofar as the adhoc Computer Instructors working for c long years were concerned, was justified. But, the decision/action of the government to reduce the minimum marks and the selection of candidates securing less than 50% marks was held to be arbitrary and was consequently not approved. However, the Supreme Court permitted the holding of another recruitment test (without insisting on a B.Ed. degree) for those failed candidates who had secured more than 35% but less than 50% marks. It was also made clear that the aforesaid recruitment test would again be a one time exception and E same would be held also by issuing an advertisement besides permitting candidates sponsored by the employment exchange to take part therein. Several applications for clarification of the order dated 09.07.2009 came to be filed before the Supreme Court. The Court by order dated 19.11.2009 clarified the said order by permitting the State Government to recruit Vocational Computer Instructors for the existing 175 vacancies and future vacancies for the post of Computer Instructors through the Employment Exchange based on the seniority with the Employment Exchange as per the G policy decision of the State Government as well as Government Orders applicable to appointment to the post of Computer Instructors. F 0 Pursuant to the order dated 9.7.2009 read with the H 398 SUPREME COURT REPORTS [2014) 4 S.C.R. 0 A clarificatory order dated 19.11.2009, a second recruitment test was held on 24.01.2010. The said test was, however, confined only to those Computer Instructors who had secured between 35-50% marks in the first recruitment test i.e. the "failed candidates" though in terms of the B order dated 9. 7 .2009 there were three categories of candidates who were entitled to participate in the said recruitment test i.e. 'failed candidates', 'open market candidates' and 'employment exchange candidates'. The conduct of the recruitment test in a limited manner also c did not come under challenge before any forum. Out of the 792 candidates (failed candidates) who had appeared in the second recruitment test only 125 secured 50% marks and above and 667 candidates once again failed. A writ petition was filed before the High Court to declare the second recruitment test as null and void due to certain anomalies in the answer key. The said writ petition was dismissed. On appeal, the appellate Bench of the High Court while rejecting the prayer for a fresh examination directed the Teachers Recruitment Board to E reassess the merit of the candidates by eliminating 20 defective questions. Pursuant to the said exercise undertaken, only 15 out of the 667 failed candidates passed, thereby, reducing the number of failed candidates to 652. As the services of the said failed candidates were being allowed to continue instead of F being terminated and as the selection for the resultant vacancies consequential to such termination was not being undertaken, the B.Ed. qualified candidates filed a contempt petition before the High Court alleging disobedience and contending that the vacancies (652) G were required to be filled up on the basis of the employment exchange seniority. During the pendency of the said proceeding, the services of the 652 candidates (twice failed) were terminated'. Against the said terminations, several writ petitions were filed wherein a H common interim order dated 30.04.2013 was passed by K. GUNAVATHI v. V. SANGEETH KUMAR 399 holding that the petitioners have •. no right either to A question their termination or to seek regularization. But till a regular process of selection is conducted by the Government, the schools cannot be left without Teachers and hence till a regular recruitment takes place, the writ petitioners shall continue; that as directed by the B Division Bench by order dated 20.12.2012, the Government shall expedite the process of regular recruitment; and the method of recruitment was left to the Government to decide. Aggrieved by the said directions, both the B.Ed. C degree holders and the terminated teachers filed writ appeals. The writ petitions that were filed by the terminated Computer Instructors were heard alongwith the writ appeals. All such cases were disposed of by the impugned common order dated 18.09.2003. The instant D appeals were filed challenging the validity of the said common order, particularly directions (vi) and (vii) of Para 53 which stated that the Government shall follow the present policy of recruitment of teachers, while appointing computer instructors viz. recruitment through Teachers Recruitment Board; and the writ petitioners appellants were eligible to apply along with others pursuant to the notification issued by the Teacher Recruitment Board and the writ petitioners are not entitled for any kind of preference. However, they are at liberty to apply for age relaxation to apply for the recruitment and the request for age relaxation, if any, would be considered on merits. E F Allowing the appeal, the Court G HELD: The order dated 19.11.2009 directing filling up of 175 existing vacancies and future vacancies of Computer Instructors on the basis of the employment exchange seniority was a conscious decision taken in departure from the virtually settled position in law that H 400 SUPREME COURT REPORTS [2014] 4 S.C.R. A recruitment to public service, normally, ought to be by open advertisement and requisitions through the employment exchange can at best be supplemental. Such departure was felt necessary due to the compulsive needs dictated by the peculiar facts of the case. At that 8 point of time, out of the 1880 available posts 1683 posts had already been filled up by the adhoc and underqualified Computer Instructors already working leaving only 175 vacancies and an unknown number of further vacancies which was contingent on the result of C the second recruitment test ordered by this Court as a one time measure. Both the recruitment tests, ordered by the High Court as well as this Court, were exclusive to the adhoc and unqualified persons leaving a large number of qualified candidates like the appellants out of the arena of consideration. What would be the extent of D the 'adverse' effect on the failed teachers if the remaining appointments are to be made on the basis of employment exchange seniority cannot be determined with any degree of accuracy at this stage inasmuch as a large number of such persons had qualified in the meantime and by virtue E of clause (v) of Para 53 of the impugned order, the names of the failed computer instructors who were earlier registered in the employment exchanges have been directed to be re-entered and their earlier seniority restored. While it is also correct that by ordering F recruitment on the basis of employment exchange seniority other eligible candidates who could have taken part in the competitive examination would loose out, no such person has come before this court to persuade the Court to take the view that for the purpose of recruitment G to the 652 posts of Computer Instructors the earlier order of this Court dated 19.11.2009 should not prevail. The directions (vi) and (vii) of the impugned order dated 18.09.2013 of the High Court are set aside and recruitment to the 652 vacant posts shall be made on the H basis of employment exchange seniority. The above K. GUNAVATHI v. V SANGEETH KUMAR 401 direction shall also govern the 175 existing vacancies A covered by the order of this Court dated 19.11.2009 if the same continue to remain vacant as on date. To all other vacancies, existing or future, as may be, the State will be at liberty to follow such policy as may be in force or considered appropriate. [paras 25, 26, 27] [415-D-G; 416- B B-F]