P. Mohanasundaram v. The Union of IndiaUnion Territory of Pondicherry

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 09..01..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. Nos. 17305 of 1999 & 9677, 9678 and 12368 of 2000andW.M.P. No. 25127 of 1999 in W.P. No. 17305 of 1999, 14082to 14085 of 2000 in W.P. Nos. 9677 and 9678 of 2000respectively and W.M.P. Nos. 17763 and 17764 of 2000 inW.P. No.12368 of 2000W. P. No. 17305 of 1999:1.P. Mohanasundaram2.T. Sundaramurthy3.G. Tamijeselvane4.S. Venkatakrishnan5.R. Kumaragurubaran... Petitionersvs.1.The Union of IndiaUnion Territory of PondicherryRep. by Secretary to GovernmentEducation DepartmentGovt. of Pondicherry, Pondicherry2.The DirectorEducation DepartmentGovt. of PondicherryPondicherry3.The Deputy Director (Admn.)Education DepartmentGovt. of Pondicherry4.RegistrarCentral Administrative TribunalChennai – 104 ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the recordsrelating to the order dated 25.3.1999 in O.A. Nos. 760 to 762 of 1996on the file of the Tribunal and quash the same and direct therespondents to interview the petitioners and to select them asSecondary Grade Teachers.W. P. No. 9677 of 2000:L. Thiagarajan.. Petitionervs.1.The Union of IndiaUnion Territory of PondicherryRep. by Secretary to GovernmentEducation DepartmentGovt. of PondicherryPondicherry2.The DirectorEducation DepartmentGovt. of PondicherryPondicherry3.The Employment OfficerEmployment ExchangePondicherry4.Attili Mukaratnam5.Radsha Sarada6.Bnodapati Venkatesuresh Babu7.M. Joycee8.Apsarunnisa Begum 9.Cheekatla Umakumari10.Cheekatla Vanaja11.Kodi Mangaratham12.K. Savithri Andal13.Syed Mahabood Iqbal14.N.V.V. Satyanarayanamurthy15.Sheik Nadar Sahed16.Karry Rambabu17.Sri Venkata Krishnan Raju Kollu18.Menda Janardhan19.M.V.V. Murali Phalgunarao20.Chiccam Mattayya21.Vedula Krishnamurthy https://hcservices.ecourts.gov.in/hcservices/

22.Chekkala Veerabhadra Rao23.Pampana Valibaba24.K. Jawaharlal Nehru25.R. Rajasekar26.Vimalan... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the recordsrelating to the order dated 25.4.2000 in O.A. No. 1131 of 1999 on thefile of the Tribunal and quash the same and direct the authorities tomake recruitment of SGT posts strictly in accordance with theRecruitment Rules from among the persons who possess the SGT TrainingCertificate or Diploma in Teacher Education Training Certificate. W. P. No. 9678 of 2000:N. Saravanan.. Petitionervs.1.The Union of IndiaUnion Territory of PondicherryRep. by Secretary to GovernmentEducation DepartmentGovt. of PondicherryPondicherry2.The DirectorEducation DepartmentGovt. of PondicherryPondicherry3.The Deputy Director of Education (Admn.)Directorate of Education Govt. of PondicherryPondicherry4.R. Mohandass5.P. Subburayalu6.S. Pazhani7.R. Semmanary @ Valavan8.K. Jawaharlal Nehru9.R. Rajasekar10.L. Thiagarajan11.G. Vimalan12.V. Ophilian13.N. Balakumar https://hcservices.ecourts.gov.in/hcservices/

14.J. John Antony Prabu... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the recordsrelating to the order dated 25.4.2000 in O.A. No. 1125 of 1999 on thefile of the Tribunal and quash the same and direct the authorities tomake recruitment of SGT posts strictly in accordance with theRecruitment Rules from among the persons who possess the SGT TrainingCertificate or Diploma in Teacher Education Training Certificate.W. P. No. 12368 of 2000:Vimalan.. Petitionervs.1.The Union of IndiaUnion Territory of PondicherryRep. by Secretary to GovernmentEducation DepartmentGovt. of PondicherryPondicherry2.The DirectorEducation DepartmentGovt. of PondicherryPondicherry3.The Deputy Director of Education (Admn.)Directorate of Education Govt. of PondicherryPondicherry4.R. Mohandass5.P. Subburayalu6.S. Pazhani7.R. Semmanary @ Valavan8.The RegistrarCentral Administrative TribunalChennai... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the recordsrelating to the order dated 25.4.2000 in O.A. No. 1125 of 1999 on thefile of the Tribunal and quash the same and direct the authorities tomake recruitment of SGT posts strictly in accordance with theRecruitment Rules. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. Karunakaran for M/s G.M. Mani Associates M/s. P. Punniyakoti and V. AjayakumarFor contesting : M/s. M. Ravi andRespondents T.P. ManoharanFor Govt. of Puducherry: M. Syed Mustafa, Spl.GPCOMMON ORDER(Order of the Court was made by K. CHANDRU, J.)Heard the arguments of Mr. Karunakaran for M/s G.M. ManiAssociates and M/s. P. Punniyakoti and V. Ajayakumar, learned counselappearing for the petitioners, M/s. M. Ravi and T.P.Manoharan,learned counsel appearing for the contesting respondents and Mr. SyedMustafa, learned Special Government Pleader (Puducherry) representingthe official respondent and have perused the records.2.In W.P. No. 17305 of 1999, the challenge is to the commonorder dated 25.3.1999 made in O.A. Nos. 760 to 762 of 1996. TheCentral Administrative Tribunal [for short, 'CAT'] dismissed theOriginal Applications.3.By a Notification dated 09.11.1992, 185 vacancies for thepost of Secondary Grade Teachers were notified by the Government. Theselection process to fill up the posts included a written examinationwith viva-voce carrying 25% marks. The minimum educationalqualification was fixed as Degree in relevant subject, Degree inEducation and S.S.L.C. The Original Applications were filed on theground that the examination should be conducted both in English andTamil as many of the candidates had studied in Tamil Medium lest thestudents coming from the English Medium may have a cutting age overthem. It was also contended that awarding 25% marks in the interviewwas not proper as the balance can be tilted in favour of candidateswho score less mark in the written examination. 4.The CAT, by its judgment dated 25.3.1999 dismissed theOriginal Applications. The CAT held that the petitioners havingparticipated in the examination and interview, cannot turn back andchallenge the process of selection. Relying upon Om Prakash Shuklav. Akhilesh Kumar Shukla [1986 Supp SCC 285], the CAT held that it isnot open to the petitioners to challenge the modality of selectionprocess after participating in the same. https://hcservices.ecourts.gov.in/hcservices/

5.Even on merits, the CAT held that the questions were ofobjective type and selected from the S.S.L.C. Syllabus. Therefore,it held that there was no prejudice caused to the Tamil Mediumstudents in answering such questions. It also held that even TamilMedium students would have had English as a compulsory languagesubject. Further, it accepted the stand of the Puducherry Governmentthat some of the Schools in the union Territory were having EnglishMedium sections and the selected teachers must have the capacityto take classes in English Medium sections also depending on theschools in which they may be posted.6.On the question of interview marks being fixed at 25%, theCAT held that it need not be a universal practice to have 15% marksfor viva-voce. In the present case, oral interview played an importantrole since the teachers' capacity to teach and their expression willhave to be observed. It also correctly distinguished the judgmentof the Supreme Court in Ajay Hasia's case and Lila Dhar's case andheld that there was no infringement of any Constitutional provision infixing the interview mark at 25%. So saying, the OriginalApplications were dismissed. It is against the said dismissal, thepresent writ petitions have been filed.7.In W.P. No. 9677 of 2000 and 9678 of 2000, the challenge isto the order made in O.A. No. 1131 of 1999 dated 25.4.2000 made by theCAT. In W.P. No. 12368 of 2000, the challenge is to the order made inO.A. No. 1125 of 1999 dated 25.4.2000.8.In these three writ petitions, the petitioners have notserved all the contesting respondents even though eight years haveelapsed. On this sole ground, the three writ petitions are liableto be dismissed. 9.In this context, it is relevant to refer to the recentdecision of the Supreme Court in Dhananjay Malik and others v.State of Uttaranchal and others [JT 2008 (3) SC 611] wherein theprinciple that a person who participates in the selection processwithout demur, will be disentitled from challenging the outcome of thesaid process. The following passages found in paragraphs 7 to 10of the said judgment may be usefully extracted below:Para 7:"It is not disputed that the writ petitioners-respondents herein participated in the process ofselection knowing fully well that the educationalqualification was clearly indicated in the https://hcservices.ecourts.gov.in/hcservices/ advertisement itself as B.P.E. or graduate with diplomain physical education. Having unsuccessfullyparticipated in the process of selection without anydemur they are estopped from challenging the selectioncriterion inter alia that the advertisement andselection with regard to requisite educationalqualifications were contrary to the Rules.Para 8:In Madan Lal vs. State of J & K, (1995) 3 SCC 486, thisCourt pointed out that when the petitioners appeared atthe oral interview conducted by the Members concernedof the Commission who interviewed the petitioners aswell as the contesting respondents concerned, thepetitioners took a chance to get themselves selected atthe said oral interview. Therefore, only because theydid not find themselves to have emerged successful as aresult of their combined performance both at writtentest and oral interview, they have filed writpetitions. This Court further pointed out that if acandidate takes a calculated chance and appears at theinterview, then, only because the result of theinterview is not palatable to him, he cannot turn roundand subsequently contend that the process of interviewwas unfair or the Selection Committee was not properlyconstituted. In the present case, as already pointedout, the writ petitioners- respondents hereinparticipated in the selection process without anydemur; they are estopped from complaining that theselection process was not in accordance with the Rules.If they think that the advertisement and selectionprocess were not in accordance with the Rules theycould have challenged the advertisement and selectionprocess without participating in the selection process.This has not been done. Para 9:In a recent judgment in the case of Marripati Nagarajavs. The Government of Andhra Pradesh, [JT 2007 (12) SC407 : (2007) 11 SCR 506 at p.516 SCR] this Court hassuccinctly held that the appellants had appeared at theexamination without any demur. They did not questionthe validity of fixing the said date before theappropriate authority. They are, therefore, estoppedand precluded from questioning the selection process. Para 10:We are of the view that the Division Bench of the HighCourt could have dismissed the appeal on this score https://hcservices.ecourts.gov.in/hcservices/ alone as has been done by the learned Single Judge." 10.In any event, the challenge made in these writ petitions isto the common order of CAT upholding the employment notificationcalling for candidates for the post of Secondary Grade Teacher whereineven Graduate Teachers having the Degree in Teacher Education werealso considered. This was sought to be challenged by the teachershaving Diploma in Education by contending that the candidates withDegree in Education are ineligible to be considered for the said post.The CAT rejected the stand of the petitioners and held that there wasnothing wrong in candidates with Graduation in Education beingconsidered. It also held that so long as the Recruitment Rulesprovide for such consideration, it is not open to the CAT to decidethe appropriate qualification for any post. In that view of thematter, the CAT rejected the objections to the Employment Notificationissued by the Puducherry Government. We do not find any illegality inthe orders passed by the CAT.11.More or less in a similar context, the Supreme Court inState of Maharashtra and others v. Tukaram Tryambak Chaudhari andothers [2007 AIR SCW 1321] upheld the decision of the MaharashtraGovernment in appointing the Graduate Teachers for teaching in MiddleSchool sections run by the local bodies. 12.Even in the Dhananjay Malik's case (cited supra), thesimilar question regarding prescription of Degree qualification by theAdvertisement issued by the authorities came up for consideration andthe Supreme Court dealt with the same in paragraphs 12 to 14, whichread as follows:Para 12:"The 1983 Rules prescribe the requisite educationalqualifications for the post of Assistant Teacher-physical education as under:- "Graduation degree in Physical Education or Diploma in the Physical Education from any recognisedInstitution." The aforesaid Rule has been clarified by the Governmentof India, Ministry of Education, on 26.11.1965 to theeffect that B.P.E degree holders should be treated atpar with those who hold B.A./B.Sc., B.Com degree plus adiploma in physical education and should not berequired to possess an additional B.A.,B.Sc/B.Com.degree for purposes of employment as Directors ofphysical education or on other similar posts. The https://hcservices.ecourts.gov.in/hcservices/ aforesaid position has been further clarified by theGovernment in paragraph 12 of its counter affidavitthat qualification of B.P.E. includes the graduation aswell as diploma of physical education. Para 13:A Constitution Bench of this Court in the case of SantRam Sharma vs. State of Rajasthan, [AIR 1967 SC 1910],has pointed out at p.1914 SC that the Government cannotamend or supersede statutory Rules by administrativeinstructions, but if the rules are silent on anyparticular point Government can fill up the gaps andsupplement the rules and issue instructions notinconsistent with the rules already framed.Para 14:The aforesaid ruling has been reiterated in paragraph 9of the judgment by a three Judge Bench of this Court inthe case of Union of India vs. K.P. Joseph, [(1973) 1SCC 194], as under: "Generally speaking, an administrative Orderconfers no justiciable right, but this rule, likeall other general rules, is subject to exceptions.This Court has held in Sant Ram Sharma v. State ofRajasthan and Another, [AIR 1967 SC 1910], thatalthough Government cannot supersede statutory rulesby administrative instructions, yet, if the rulesframed under Article 309 of the Constitution aresilent on any particular point, the Government can fillup gaps and supplement the rules and issueinstructions not inconsistent with the rules alreadyframed and these instructions will govern theconditions of service."13.In the light of the above, all the writ petitions aremisconceived and devoid of merits. Accordingly, they will standdismissed. However, there will be no order as to costs. ConnectedMiscellaneous Petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ griTo1.The Union of IndiaUnion Territory of PondicherryRep. by Secretary to GovernmentEducation DepartmentGovt. of PondicherryPondicherry2.The DirectorEducation DepartmentGovt. of PondicherryPondicherry3.The Deputy Director (Admn.)Education DepartmentGovt. of PondicherryPondicherry4.The Employment OfficerEmployment ExchangePondicherry5.RegistrarCentral Administrative TribunalChennai – 104+1cc to Spl. Govt. Pleader-cum-Senior Public Prosecutor, PondicherrySr 1800,1802,1356,1801+1cc to Mr.P.Punniakotti, Advocate Sr 1587+1cc to G.M.Mani Associates Sr 1292+1cc to Mr.M.Ravi, Advocate Sr 1053RL (CO)km/13.5. W. P. No. 17305 of 1999, etc. batch