Tamil Nadu Computer Science B.Ed v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.01.2010CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.1185 of 2010& M.P.Nos.1 and 2 of 2010Tamil Nadu Computer Science B.Ed.,Graduate Teachers Welfare Societyrep.by its General SecretaryMr.G.MuthuramanNo.8/21, Bujanga Rao StreetSaidapet, Chennai 600 015.. PetitionerVs.1.The Government of Tamil Nadu Rep.by its Secretary to GovernmentSchool Education Department Fort St.George, Chennai 600 0092.The Director of School Education(Higher Secondary)DPI Campus, College RoadChennai 600 0063.The Teachers Recruitment BoardRep.by its SecretaryE.V.K.Sampth Maaligai, 4th floorDPI Campus, College RoadChennai 600 006 .. Respondents Prayer :Petition filed under Article 226 of the Constitution ofIndia praying for a Writ of Mandamus Directing the respondents toconduct the recruitment test for the appointment of ComputerInstructors at Government Higher Secondary Schools for all theexisting vacancies by inviting applications from all eligiblecandidates who are having the eligible qualifications of ComputerDegree with B.Ed. Degree and registered with Employment Exchangeas per the direction of the Honble Supreme Court of India in itsJudgment dated 09.07.2009 made in Civil Appeal No.4187 of 2009and consequently direct the respondents to complete the selectionin accordance with the issued by the Hon'ble Apex Court in theJudgment referred to above.For Petitioner :: Mr.R.Suresh Kumar For Respondents :: Mr.G.Sankaran, Spl.G.P assisted by Ms.Dhakshiyini Reddy, G.A. https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard both sides.2. This is a Writ Petition filed by an Associationcomprising of Computer Science and B.Ed.Graduate Teachers.Claiming to be a welfare society of such candidates (who are yetto enter into the Government service) have filed series of WritPetitions. Some of them have also reached the Supreme Court.Locus standi of such an association in filing the writ Petitioncomprising of persons, who are yet to enter into Governmentservice through by a registered body itself is doubtful. 3. Though Mr.R.Suresh Kumar, learned counsel for thepetitioner states that on an earlier occasion, they have beenallowed to file such a writ petition. A perusal of the earlierorders does not show that issue of locus standi were gone into. 4. Be that as it may. In the present Writ Petition, thepetitioner seeks for a direction to the respondent Government toconduct recruitment test for appointment to the post of ComputerInstructors in the Government Higher Secondary Schools for theexisting vacancies by inviting applications from all candidates,who are having the eligible qualifications of a Computer Degreewith B.E and who have got themselves registered with employmentexchange in terms of the directions of the Supreme Court videits Judgment in Civil Appeal No.4187 of 2009 dated 09.07.2009 andto consequently direct the respondents to complete the selectionprocess in accordance with the said directions of the SupremeCourt.5. It is brought to the notice of this Court thatsubsequent to the final order passed by the Supreme Court,applications were filed before the Supreme Court in I.A.Nos.2 to7 of 2009 in Civil Appeal No.4187 of 2009 by the petitionersociety. The State had also filed similar application forclarification. Pursuant to these applications, the Supreme Courtby its order order dated 19.11.2009 clarified its earlier order.Some typographical errors crept in the order stood corrected. 6. The clarification found in the order in I.As dated19.11.2009 as found in paras 11 and 12 reads as follows:"We clarify the judgment in the following terms:a) permit the Government to i) Conduct examination to the candidates whohave secured 35% to 49% marks in the examinationand declare the results of the candidates whosecured more than 50% marks as eligible candidatesfor appointment. https://hcservices.ecourts.gov.in/hcservices/ ii) recruit Vocational Computer Instructorsfor the existing 175 vacancies and futurevacancies for the post of Computer Instructorsthrough the Employment Exchange based on theseniority with the Employment Exchange as per thepolicy decision of the State Government as well asGovernment Orders applicable to appointment to thepost of Computer Instructors;b) the figures appearing in paras 10, 12 and 14 ofthe judgment dated 9.7.2009 in Civil AppealNo.4187 of 2009 etc., may be read as 894 insteadof 857 and 792 instead of 829;12. Except the the above clarification, the judgmentdated 9.7.2009 remains undisputed in all otherrespects. All the applications are disposed ofaccordingly." 7. Pursuant to this clarification, the State Government isnow conducting examinations in respect of these candidates, whohave secured 35% to 49% marks in the earlier examination as asecond chance to have their cases considered in respect of thevacancies available. The petitioner aggrieved by the conduct ofthe tests by the State Government in respect of thosecandidates, who had written the earlier special examination andsecured 35% to 49% alone.8. According to the petitioner society, their members arealso eligible to write such examination. Exclusion of themembers of the petitioner society would amount to contraveningthe earlier final order passed by the Supreme Court dated9.7.2009. According to Mr.Suresh Kumar, the learned counsel forthe petitioner by the clarification, the earlier direction of theSupreme Court as found in para 17 cannot be either whittled downor taken away. In essence, a clarification cannot take away theright acquired in the original order by the petitioner.Therefore, the present steps taken by the State Government toimplement the order of the Supreme Court should be stalled andthe members of the petitioner society must also be allowed toparticipate in the test and selection process.9. In order to appreciate the contentions of the petitioner,it is necessary to refer to the earlier direction given in thefinal order in the Civil Appeal by the Supreme Court, as foundin para 17, should be reproduced:"17. Consequently, we give the following directions tothe State Government that:a) Only those candidates who had secured more than50% qualifying marks in the Special Recruitment Testshall be treated as qualified and recruited as https://hcservices.ecourts.gov.in/hcservices/ Computer Instructors and they shall be so absorbedand their service shall be so regularised inaccordance with law'b) The remaining candidates who had secured less than50% qualifying marks but about 35% marks should bedeclared and held to be unsuccessful and failed inthe said Special Recruitment drive but they would beallowed to appear in the next Recruitment Test to beheld for filling up the remaining vacant posts ofComputer Instructors without insistingupon them tohave B.Ed. Degree as one time exception andconcession;c) The State Government shall also hold the said testby inviting applications through issuing anadvertisement and also allow candidates to take thetest sponsored by the Employment Exchange. In thesaid Test all other rules of appointment for suchpost and the rules of reservation would also apply.The only exception would be the candidates who hadreceived more than 35% marks in the earlier SpecialRecruitment drive but less than 50% marks which wasqualifying marks may not have B.Ed. Degree, whichwould be treated as one time exception for them asthey were working as Computer Instructor."10. The learned counsel for the petitioner states that themembers of the petitioner union have got qualifications inComputer Science with B.Ed. Degree and have got their namesregistered in the Employment Exchange. Whereas the persons, whoare writing the examination at present are not qualified toteach in the Higher Secondary Schools as per the relevant ServiceRules.11. However a a Division Bench of this Court in the WritAppeal filed by the petitioner association viz., Higher SecondarySchool Computer Teachers Association, rep.by its President No.40,MGR Nagar, Railway Mettu Street, Tenkasi vs. Tamil Nadu ComputerScience B.Ed. Graduate Teachers Welfare Society rep.by itsTreasurer, Chennai 15 subsequently reported in 2009 WLR 127 hadupheld the policy decision of the Supreme Court. 12. In paragraphs 36 and 37 of the Division Bench's ordarit was observed as follows:"36. However, the matter cannot be allowed torest here. Admittedly, the opponents are B.Ed.or M.Ed. Qualified candidates and are waitingfor an opportunity to secure Government jobs,based on their qualification. They genuinely https://hcservices.ecourts.gov.in/hcservices/ apprehend that if such a massive number ofposts are filled up by way of specialrecruitment test, then, there may not besufficient posts left for them to occupy. But,since it is not a process of absorption orregularisation, in its true sense and since acompetitive examination has been proposed byway of this special recruitment drive, we aretold that there will still be left withsubstantial number of posts, since it cannot beexpected that all the applicants would besuccessful. The fact that the B.Ed. Or M.Ed.Candidates are fully qualified and are eagerlywaiting for the opportunity can never beforgotten. In our eagerness to render justicebetween the parties, when we enquired with thelearned Additional Advocate General, aftergetting instructions, he produced a copy of theLetter No.35991/HS2/2006-14, dated 4.2.2008,addressed by the Secretary to Government,School Education (HS2) Department, SchoolEducation (HS2) Department, Chennai to theAdditional Advocate General, wherein it hasbeen stated that:"The present recruitment is a special recruitmentfor absorption of existing Computer Instructorswho were lawfully engaged by a due sanction of theGovernment. For employment of future vacanciesfor the posts of Computer Instructors, therecruitment will be made open to all eligibleapplicants (with B.Ed.) without any preference tothe already employed Computer Instructors inGovernment Higher Secondary School. Suchrecruitment will be made on employment senioritybasis."37. The above said proposal of the Government appears tobe genuine and reasonable in the facts and circumstancesof the case. Therefore, we direct the Governmentalauthorities that the entire process of selection on thebasis of special drive examination shall be conductedstrictly, as a one time measure, and complete the samewithin six months from the date of receipt of a copy ofthis judgment and left over vacancies and othervacancies if any arose in the meantime shall be filledup within three months thereafter, as has been assuredbefore us, making open the recruitment to all eligibleB.Ed., and M.Ed. Candidates on employment senioritybasis, without any preference to the already employedComputer Instructors in Government Higher SecondarySchools." (emphasis added). https://hcservices.ecourts.gov.in/hcservices/

13. It is this decision of the Division Bench, which waschallenged before the Supreme Court. The Supreme Court upheldthe policy of the State Government and also permitted absorptionof such candidates in the Government service as a one timemeasure but with a slight modification. The Supreme Court inorder to maintain efficiency in service imposed the conditionof 50% as the minimum mark in the test for entry into Governmentservice. Whereas, the State Government had earlier permittedcandidates even with 35% marks to get absorbed. 14. Therefore, in essence, the entire controversy revolvesupon a) the recruitment of existing Computer Instructorsteaching in Government schools into regular Government service,b) if so, whether they are eligible to be absorbed directly or bya special examination and c) in case any special examination ispermitted, what should be the minimum marks for the entry intoGovernment service. The petitioner association themselves haveattacked the recruitment of such candidates into Governmentservice on the ground that neither the Special Rules permit suchrecruitment nor the candidates have obtained any TeachersEducation Degree to teach in schools15. The contentions raised by the petitioner association inthis regard were repelled both by the Division Bench and by theSupreme Court. However, the Supreme Court in order to maintainexcellence in education had restricted the entry to candidates,who will secure 50% marks in the examination. The mattershould have been given a quietus. But, however, both in the mainorder as well as in the order in the clarification application,the Supreme Court wanted to give a second opportunity to suchof those candidates, who have secured marks from 35% to 49%, butonly after going through another examination. It is for thesecandidates, the second examination is being conducted by theState Government.16. This attempt made by the State Government is inaccordance with the direction issued by the Supreme Court. Thereis no violation of its order in the steps taken by the StateGovernment. On the contrary, the petitioner association nowfeels that not only that class of candidates must be allowed towrite the examination but also those candidates, who are havingComputer Degree, Teacher Training Degree and who have gotregistered in the Employment Exchange also to be permitted in thepresent examination. Therefore, they have come up with thepresent plea that they should also be permitted to participate inthe selection process.17. Mr.R.Suresh Kumar, learned counsel for the petitionersociety heavily relied upon para 17(c) of the final order passedby the Supreme Court dated 9.7.2009 and contended that theSupreme Court had permitted the other candidates also to write https://hcservices.ecourts.gov.in/hcservices/ the examination. This Court is unable to agree with the saidsubmission.18. The primary contention of the petitioner society made inthe earlier round of litigation was that recruitments shouldbe made only in accordance with the Special Rules framed underArticle 309 of the Constitution of India and it cannot take intoaccount claims of other unqualified candidates. The SupremeCourt upheld the stand of the Government and also specificallyheld that the future recruitments should be only in accordancewith the service Rules. As can be seen from the Rules, it doesnot contemplate any examination but only recruitment directlythrough employment exchange provided the candidates have minimumqualification. Therefore, the members of the petitioner societyhave nothing to lose. The Supreme Court had specificallyforbidden the State in future from resorting to any other modeof recruitment other than what has been prescribed under theRules. But, as an exception and in the light of the largenumber of candidates serving in the School over a period and alsothe State have taken a policy specifically in this regard, theSupreme Court has permitted such an examination. In the earlierexamination conducted, the Supreme Court has modified theorder and restricted the entry to candidates who have secured 50%marks. The other candidates, who had a legitimate expectation ofgetting into service were left out. Therefore, the SupremeCourt had given them a second chance to enter the service bywriting another examination. It has been specifically statedin para 17(b) in the order dated 9.7.2009 as well as in theclarification order dated 19.11.2009. Conscious of the totalnumber of vacancies available, the Supreme Court also permittedthat only in the present vacancies, those candidates can beaccommodated.19. A perusal of the history of the litigation and thespecific contentions raised by the petitioner association evenbefore this Court as well as before the Supreme Court clearlyshows that no where there is any intention that the candidates,who are qualified to hold the post of Computer Instructorshould also be allowed to write another test. Such a contentionwill not only be contrary to the Special Rules but also theconsistent with the stand taken by the petitioner society. Buton the basis of a strong observation found in paragraph 17(c)of the order dated 9.7.2009, the petitioner society is trying tomisinterpret the judgment of the Supreme Court. 20. If the petitioner society feels that the order of theSupreme Court has been disobeyed by the State Government, theonly option open to them is to move the Supreme Court with anappropriate Contempt Application. If any such applications arefiled, the State Government can always justify its stand aboutthe implementation of the orders of the Supreme Court . But, https://hcservices.ecourts.gov.in/hcservices/ this exercise is undertaken since the petitioner society wantedto argue that the clarification order cannot be read in isolationfrom the main order passed by the Supreme Court and their vestedright cannot be taken away. This Court is of the opinion that theclaim made by the petitioner society is a new claim, which isbeing advanced only now and not pleaded earlier. They cannottake away the concession shown to the candidates, who havefailed earlier and are also permitted to write a secondexamination as a one time measure. 21. It will not be out of place to refer to the recentdecision of the Division Bench in W.A.No.1636/2009 and batchcases in the Member Secretary, Teachers Recruitment Board, andothers v. M.Somasundaram dated 22.01.2010 ( referred at the timeof writing this order and a copy was directed to be produced).In that case the Division Bench presided by Mr.H.L.Gokhale, ChiefJustice in paras 16 & 17 had observed as follows :"16. The observations of the Division Bench asoccurring in paragraphs 28 and 29 of its judgment, whichwere left undisturbed by the Apex Court, have beenquoted hereinabove. We are in agreement with the viewtaken by the Division Bench and also by the StateGovernment. In the instant cases, nearly some 1880 postshave been created and a very large number of candidatesare allowed to take this examination for regularization.It is only some 33 (and now 30) candidates, who arebeing objected for participation, basically on theground that they had not been employed through ELCOT orthey did not have the required qualifications or theywere not in service on the date of the Government Order.17. Over and above this, the Government isinsisting that by and large the candidates concernedmust be in continuous service during this period uptothe date of the notification. Those candidates who havenot been available for service for months together areexcluded from this opportunity to give this examination.As stated above, this opportunity itself is an exceptionto the general rule of employment through a uniformprocedure, which is in consonance with Articles 14 and16 of the Constitution of India. The State Government isgiving this opportunity to the candidates, who had putin just over six years or so, as against the yardstickof 10 years referred to in paragraph 53 of the judgmentin Uma Devi's case (supra). In the circumstances, if theState insists that the candidates ought to have workedby and large continuously throughout this entire period,the State cannot be faulted. The opportunity cannot begiven to candidates who were not available continuouslyfor the service. Basically, the representation of the https://hcservices.ecourts.gov.in/hcservices/ candidates to the Government had been that they had putin long years of service and, therefore, the Governmentcame out with this one time exercise. If that was therepresentation of the Computer Instructors, obviously,it was expected of them that they were available forservice during the entire period."22. A perusal of the order of the latest Division Benchitself will show that the present examination is only to aparticular class of candidates as ordered by the Supreme Court.Those who are not covered by the order cannot get into the fray.Even the policy decision of the state government earlier takenis to absorb those candidates, as they have already put in 6years of teaching in schools. But the members of the petitionersociety are yet to enter into the service. Hence they cannotcompare themselves with the candidates who are allowed to writethe examination and there is no violation of Article 14 in suchcircumstance. 23. Under the circumstances, the Writ Petition lacks anymerit, is misconceived and accordingly will have to be dismissed.There will be no order as to costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarajrTo1.The Secretary to GovernmentSchool Education Department Fort St.George, Chennai 600 0092.The Director of School Education(Higher Secondary)DPI Campus, College RoadChennai 600 0063.The SecretaryTeachers Recruitment BoardE.V.K.Sampth Maaligai, 4th floorDPI Campus, College RoadChennai 600 006+ 1 cc to Mr.R.Suresh Kumar,Advocate,SR.3992+ 1 cc to Government Pleader,SR.4245W.P.No.1185 of 2010SSN(CO)EM/2.2.10