Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.02.2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.2108 of 2012andM.P.Nos.1 and 2 of 2012Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam,rep by its Secretary NA.MurugadassNo.668A, Muthiya Nagar,Chennai SalaiL.N.Puram,Panruti-607 106.... Petitioner Vs.1.The State of Tamil Nadu, rep by its Secretary to Government (School Education) Department, Fort St George, Chennai-600 009.2.The Director, School Education, DPI Campus, College Road, Chennai-600 006.3.The Chairman, Teachers Recruitment Board, 4th Floor, EVK Sampath Buildings, College Road, Chennai-600 006... Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to G.O.(Ms)No.181, School Education (C2) Department, dated 15.11.2011passed by the first respondent and quash the same insofar as itprescribes Teacher eligibility test for persons who have alreadycompleted certificate verification conducted by the TeachersRecruitment Board for appointment as BT Assistants is concerned andconsequently to direct the respondents 1 and 2 to appoint themembers of the petitioners Association as BT Assistant on the basisof the statewide employment seniority as has been done in the caseof secondary grade teachers. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Gandhi, SC for Mr.V.S.SivasundaramFor Respondents : Mr.M.Dig Vijayapandian, AGPORDERThis writ petition is filed by an Association known as TamilNadu Pattathari Asiriyargal Velaivaippu Sangam (Tamil Nadu GraduateTeachers Employment Opportunity Association) represented by itsSecretary. In this writ petition, the Association has challenged onbehalf of some of its members the order passed by the StateGovernment in G.O.Ms.No.181, School Education Department, dated15.11.2011 so far as it has prescribed Teacher Eligibility Testeven for persons who have completed certificate verificationconducted by the Teachers Recruitment Board for appointment to thepost of Graduate Assistants and for consequential direction torespondents 1 and 2 to appoint the members of the petitionerassociation as Graduate Assistants on the basis of the seniority inthe Statewide list kept by the employment exchange as was done inthe case of Secondary Grade Teachers.2.It is the case of the petitioner that by G.O.Ms.No.181, theState Government has prescribed Teacher Eligibility Test for allrecruitments to the post of teachers in accordance with thedirections contained under Section 23(1) of the Right of Childrento Free and Compulsory Education Act, 2009 (for short RTE Act).Under the said Act, the National Council for Teacher Education(NCTE) has been appointed as the Academic Authority by theGovernment of India. The Academic Authority has indicated that allthe States in which teachers are recruited in future for theelementary segment should have passed the Teacher Eligibility Testto be conducted by the appropriate Government in accordance withthe guidelines framed by the NCTE for this purpose. Therefore, theState Government on the basis of the said direction had specifiedthat teachers who do not have minimum qualification, were givenfive years time to acquire the minimum qualification. For allrecruitments in respect of even teachers working in unaided privateschools are also required to pass the said test within five years.So far this State was concerned, persons for whom minimumqualification prescribed was Diploma in Teacher Education as wellas Graduate Assistants and who are teaching classes 6 to 8 and haveacquired B.Ed. qualification, should pass Teacher Eligibility Test.In the case of the secondary grade teachers, the earlierrecruitment was done on the basis of the District level employmentregistration and seniority.3.When the same was challenged before this Court in a writpetition in Unemployed Secondary Grade Teachers Welfare AssociationVs. State of Tamil Nadu reported in 2008 (4) LLN 560, this Courtheld that the names sponsored by the District Level employmentexchange was violative of Article 16(1) of the Constitution. https://hcservices.ecourts.gov.in/hcservices/ Therefore, a direction was given to adopt the Statewide employmentexchange seniority list for the purpose of recruitment. This orderpassed by the Division Bench came to be challenged by the aggrievedpersons before the Supreme Court in SLP(Civil) Nos.18227 and 18227of 2008. While granting leave, the Supreme Court refused to grantstay, but, on the other hand, had directed the State Government tofollow the Statewide seniority in the employment registration whileappointing Secondary Grade Teachers from the list of eligiblepersons from all the District employment exchanges and by newspaperpublic advertisements throughout the State. The Supreme Court hadalso stated that the said arrangement will apply even forrecruitment to the matters which are pending disposal of appealbefore the Supreme Court.4.In the light of the said direction, the State Government hadchanged the recruitment policy framed for the year 2006-07 forrecruiting graduate assistants from written examination to that ofthe Statewide registration seniority in employment exchange. But,in the light of the directions issued by the Supreme Court as wellas the subsequent directions issued by the NCTE, which became theacademic authority under Section 23(1), the State Government hadissued guidelines that so far as the Secondary Grade Teachers areconcerned, the direction of the Supreme Court in adopting Statewideseniority list will be taken as the criteria for appointment untilthe appeals before the Supreme Court are disposed of. The generalpolicy directing teachers who are to be appointed as SecondaryGrade teachers to teach classes of middle schools, high schools andhigher secondary schools will have to take written examination,i.e., Teacher Eligibility Test in accordance with the guidelinesframed by the NCTE and certificate verification will have to befollowed. The TRB was designated as the Nodal Agency for conductingof Teacher Eligibility Test and for recruitment of teachers. 5.The contention raised by the petitioner was that some oftheir members whose names were set out in page 50 of the typed set(27 members) have already gone through the selection process in theearlier recruitment process and some of them have already beenappointed. Therefore, the persons who went through earlierselection process cannot be subjected to the present order of theState Government. Therefore, to that extent, the State Governmentshould be prohibited from insisting for those 27 persons fromwriting any examination for future recruitment. Since the onlyquestion of certificate verification alone was the earlier criteriaand they were having gone through the same, they should be givenappointment orders. In essence, they wanted to contend that at thetime of issuance of appointment orders prescribing newqualification was illegal. They cannot introduce a new testingprocess. Secondly, in respect of secondary grade teachers, there isno such insistence and that the past practice of recruitmentthrough employment exchange sponsorship based upon seniority cannotbe dislodged. 6.It is not clear as to how the association can take thecause of such persons and no aggrieved person is before this court.The Association is only the registered society. Unless and until an https://hcservices.ecourts.gov.in/hcservices/ actually aggrieved person is before this court, the contentionsraised herein cannot be taken up by this court. In any event, whenonce the Parliament Act prescribed a particular recruitment mode,there is no choice of the State Government deviating from thatprocess, lest the educational qualification given by suchinstitutions will be de-recognised by the NCTE. 7.In this context, it is necessary to refer to theimplications of the RTE Act . Sections 23 and 38 of the RTE Actreads as follows:23.Qualifications for appointment and terms andconditions of service of teachers.—(1) Any personpossessing such minimum qualifications, as laiddown by an academic authority, authorised by theCentral Government, by notification, shall beeligible for appointment as a teacher.38.Power of appropriate Government to make rules.—(1) The appropriate Government may, bynotification, make rules, for carrying out theprovisions of this Act.(2) In particular, and without prejudice to thegenerality of the foregoing powers, such rules mayprovide for all or any of the following matters,namely:—(a) to (k) omitted (l) the salary and allowances payable to, andthe terms and conditions of service of, teacher,under sub-section (3) of Section 23;8.Even when the UGC prescribed eligibility test in the formof State level Entrance Test or National Entrance Test as thecriteria for appoint of college and University teachers, theSupreme Court has upheld the prescription of such criteria by thehighest academic decision body vide its decision in University ofDelhi v. Raj Singh reported in 1994 Supp (3) SCC 516 and inparagraphs 20 and 24, it was observed as follows:"20.The ambit of Entry 66 has already been thesubject of the decisions of this Court in the casesof the Gujarat University1 and the OsmaniaUniversity2. The UGC Act is enacted under theprovisions of Entry 66 to carry out the objectivethereof. Its short title, in fact, reproduces thewords of Entry 66. The principal function of theUGC is set out in the opening words of Section 12,thus:“It shall be the general duty of the Commissionto take ... all such steps as it may think fitfor the promotion and coordination of Universityeducation and for the determination andmaintenance of standards of teaching, examinationand research in Universities ....” https://hcservices.ecourts.gov.in/hcservices/ It is very important to note that a duty is castupon the Commission to take “all such steps as itmay think fit ... for the determination andmaintenance of standards of teaching”. These arevery wide-ranging powers. Such powers, in our view,would comprehend the power to require those whopossess the educational qualifications required forholding the post of lecturer in Universities andcolleges to appear for a written test, the passingof which would establish that they possess theminimal proficiency for holding such post. The needfor such test is demonstrated by the reports of thecommissions and committees of educationistsreferred to above which take note of thedisparities in the standards of education in thevarious Universities in the country. It is patentthat the holder of a postgraduate degree from oneUniversity is not necessarily of the same standardas the holder of the same postgraduate degree fromanother University. That is the rationale of thetest prescribed by the said Regulations. It fallssquarely within the scope of Entry 66 and the UGCAct inasmuch as it is intended to co-ordinatestandards and the UGC is armed with the power totake all such steps as it may think fit in thisbehalf. For performing its general duty and itsother functions under the UGC Act, the UGC isinvested with the powers specified in the variousclauses of Section 12. These include the power torecommend to a University the measures necessaryfor the improvement of University education and toadvise in respect of the action to be taken for thepurpose of implementing such recommendation [clause(d)]. The UGC is also invested with the power toperform such other functions as may be prescribedor as may be deemed necessary by it for advancingthe cause of higher education in India or as may beincidental or conducive to the discharge of suchfunctions [clause (j)]. These two clauses are alsowide enough to empower the UGC to frame the saidRegulations. By reason of Section 14, the UGC isauthorised to withhold from a University its grantif the University fails within a reasonable time tocomply with its recommendation, but it is requiredto do so only after taking into consideration thecause, if any, shown by the University for suchfailure. Section 26 authorises the UGC to makeregulations consistent with the UGC Act and therules made thereunder, inter alia, defining thequalifications that should ordinarily be requiredfor any person to be appointed to the teachingstaff of a University, having regard to the branchof education in which he is expected to giveinstruction [clause (e) of sub-section (1)]; and https://hcservices.ecourts.gov.in/hcservices/ regulating the maintenance of standards and thecoordination of work or facilities in Universities[clause (g)]. We have no doubt that the word‘defining’ means setting out precisely orspecifically. The word ‘qualifications’, as used inclause (e), is of wide amplitude and would includethe requirement of passing a basic eligibility testprescribed by the UGC. The word ‘qualifications’ inclause (e) is certainly wider than the word‘qualification’ defined in Section 12-A(1)(d),which in expressly stated terms is a definitionthat applies only to the provisions of Section 12-A. Were this definition of qualification, asmeaning a degree or any other qualification awardedby a University, to have been intended to applythroughout the Act, it would have found place inthe definition section, namely, Section 2.24.It is now appropriate to clarify the directionthat the Delhi High Court issued in allowing thewrit petition. It held that the notification dated19-9-1991, by which the said Regulations werepublished, was valid and mandatory and the DelhiUniversity was obliged under law to complytherewith. The Delhi University was directed toselect lecturers for itself and its affiliated andsubordinate colleges strictly in accordance withthe notification. Put shortly, the Delhi Universityis mandated to comply with the said Regulations. Asanalysed above, therefore, the Delhi University mayappoint as a lecturer in itself and its affiliatedcolleges one who has cleared the test prescribed bythe said Regulations; or it may seek prior approvalfor the relaxation of this requirement in aspecific case; or it may appoint as lecturer onewho does not meet this requirement without havingfirst obtained the UGC's approval, in which eventit would, if it failed to show cause for itsfailure to abide by the said Regulations to thesatisfaction of the UGC, forfeit its grant from theUGC. If, however, it did show cause to thesatisfaction of the UGC, it not only would notforfeit its grant but the appointment made withoutobtaining the UGC's prior approval would standregularised."9.Subsequently, in Andhra Pradesh Public Service CommissionVs. Baloji Badhavath reported in (2009) 5 SCC 1, the Supreme Courtupheld the right to conduct preliminary examination and inparagraph 29, it was observed as follows:"29.Indisputably, the preliminary examination isnot a part of the main examination. The merit ofthe candidate is not judged thereby. Only aneligibility criterion is fixed. The papers for https://hcservices.ecourts.gov.in/hcservices/ holding the examination comprise of general studiesand mental ability. Such a test must be held to benecessary for the purpose of judging the basiceligibility of the candidates to hold the tests.How and in what manner the State as also theCommission would comply with the constitutionalrequirements of Article 335 of the Constitution ofIndia should ordinarily not be allowed to bequestioned."10.Therefore, there was no illegality in prescribing suchtest as the minimum requirement for entry. It is in exercise ofpower under the Central enactment, the directions have been issued.The State Government is bound to obey the same. Hence thepetitioner cannot be heard to challenge the prescription ofcriteria for entry into the Government service as illegal.11.As to whether their selection should be considered on thebasis of the earlier process based upon certificate verificationdone by the TRB, it must be noted that mere inclusion of names inthe select list will not give right to get employment as held bythe Supreme Court in Rakhi Ray v. High Court of Delhi reported in(2010) 2 SCC 637 and in paragraph 24, it was observed as follows:"24.A person whose name appears in the select listdoes not acquire any indefeasible right ofappointment. Empanelment at the best is a conditionof eligibility for the purpose of appointment andby itself does not amount to selection or create avested right to be appointed. The vacancies have tobe filled up as per the statutory rules and inconformity with the constitutional mandate. In theinstant case, once 13 notified vacancies werefilled up, the selection process came to an end,thus there could be no scope of any furtherappointment."12.Further, it cannot be said that they have got vestedright and that appointment should be given. In this context, it isnecessary to refer to a judgment of the Supreme Court in State ofM.P. v. Sanjay Kumar Pathak reported in (2008) 1 SCC 456 and inparagraphs 15,18,21,22 and 24, it was observed as follows:"15.The respondents do not dispute before us thatthe tabulation of the marks obtained by them wasnot finalised. For the purpose of selection, themarks allotted to each of the candidates should beknown to the members of the Selection Committee.Members of the Selection Committee before preparingthe select list were entitled to undergo aconsultative process so as to enable them to arriveat a consensus in regard to the candidates whoshould be appointed. As the tabulation processitself was not completed, the question of preparingany select list also did not arise. https://hcservices.ecourts.gov.in/hcservices/

18........ As the selection process itself was notcomplete, there was nothing before the Tribunal asalso the High Court to indicate that they hadacquired legal right of any kind whatsoever.Even where, it is trite, the names of the personsappeared in the select list, the same by itselfwould not give rise to a legal right unless theaction on the part of the State is found to beunfair, unreasonable or mala fide. The State, thus,subject to acting bona fide as also complying withthe principles laid down in Articles 14 and 16 ofthe Constitution of India, is entitled to take adecision not to employ any selected (sic candidate)even from amongst the select list......21.In K. Jayamohan v. State of Kerala4 this Courtheld: (SCC p. 171, para 5)“5. It is settled legal position that merelybecause a candidate is selected and kept in thewaiting list, he does not acquire any absoluteright to appointment. It is open to theGovernment to make the appointment or not. Evenif there is any vacancy, it is not incumbent uponthe Government to fill up the same. But theappointing authority must give reasonableexplanation for non-appointment. Equally, thePublic Service Commission/recruitment agencyshall prepare a waiting list only to the extentof anticipated vacancies. In view of the abovesettled legal position, no error is found in thejudgment of the High Court warrantinginterference.”(See also Munna Roy v. Union of India5.)22.In All India SC&ST Employees' Assn. v. A. ArthurJeen6 it was opined: (SCC p. 387, para 10)“10. Merely because the names of the candidateswere included in the panel indicating theirprovisional selection, they did not acquire anyindefeasible right for appointment even againstthe existing vacancies and the State is under nolegal duty to fill up all or any of the vacanciesas laid down by the Constitution Bench of thisCourt, after referring to earlier cases inShankarsan Dash v. Union of India2. Para 7 of thesaid judgment reads thus: (SCC pp. 50-51)‘7. It is not correct to say that if a numberof vacancies are notified for appointment andadequate number of candidates are found fit, thesuccessful candidates acquire an indefeasibleright to be appointed which cannot belegitimately denied. Ordinarily the notificationmerely amounts to an invitation to qualified https://hcservices.ecourts.gov.in/hcservices/ candidates to apply for recruitment and on theirselection they do not acquire any right to thepost. Unless the relevant recruitment rules soindicate, the State is under no legal duty tofill up all or any of the vacancies. However, itdoes not mean that the State has the licence ofacting in an arbitrary manner. The decision notto fill up the vacancies has to be taken bonafide for appropriate reasons. And if thevacancies or any of them are filled up, the Stateis bound to respect the comparative merit of thecandidates, as reflected at the recruitment test,and no discrimination can be permitted. Thiscorrect position has been consistently followedby this Court, and we do not find any discordantnote in the decisions in State of Haryana v.Subash Chander Marwaha7, Neelima Shangla v. Stateof Haryana8 or Jatinder Kumar v. State ofPunjab9.’ ”24.In Pitta Naveen Kumar v. Raja NarasaiahZangiti11 this Court observed: (SCC p. 273, para32)“32. The legal position obtaining in this behalfis not in dispute. A candidate does not have anylegal right to be appointed. He in terms ofArticle 16 of the Constitution of India has onlya right to be considered therefor. Considerationof the case of an individual candidate althoughordinarily is required to be made in terms of theextant rules but strict adherence thereto wouldbe necessary in a case where the rules operateonly to the disadvantage of the candidatesconcerned and not otherwise.”In a situation of this nature, no appointmentcould be made by the State in absence of the selectlist. The State could not substitute itself for theSelection Committee."13.Further the Supreme Court has held that even whenselection was made and subsequently it was cancelled, there is noright to question the same, vide its judgment in East Coast Railwayv. Mahadev Appa Rao reported in (2010) 7 SCC 678 and in paragraphs14 to 17, it has been held as follows:"14.It is evident from the above that while nocandidate acquires an indefeasible right to a postmerely because he has appeared in the examinationor even found a place in the select list, yet theState does not enjoy an unqualified prerogative torefuse an appointment in an arbitrary fashion or todisregard the merit of the candidates as reflectedby the merit list prepared at the end of theselection process. The validity of the State's https://hcservices.ecourts.gov.in/hcservices/ decision not to make an appointment is thus amatter which is not beyond judicial review before acompetent writ court. If any such decision isindeed found to be arbitrary, appropriatedirections can be issued in the matter.15.To the same effect is the decision of thisCourt in UT of Chandigarh v. Dilbagh Singh10 whereagain this Court reiterated that while a candidatewho finds a place in the select list may have novested right to be appointed to any post, in theabsence of any specific rules entitling him to thesame, he may still be aggrieved of his non-appointment if the authority concerned actsarbitrarily or in a mala fide manner. That was alsoa case where the selection process had beencancelled by the Chandigarh Administration uponreceipt of complaints about the unfair andinjudicious manner in which the select list ofcandidates for appointment as conductors in CTU wasprepared by the Selection Board. An inquiry gotconducted into the said complaint proved theallegations made in the complaint to be true. Itwas in that backdrop that action taken by theChandigarh Administration was held to be neitherdiscriminatory nor unjustified as the same was dulysupported by valid reasons for cancelling what wasdescribed by this Court to be as a “dubiousselection”.16.Applying these principles to the case athand there is no gainsaying that while thecandidates who appeared in the typewriting test hadno indefeasible or absolute right to seek anappointment, yet the same did not give a licence tothe competent authority to cancel the examinationand the result thereof in an arbitrary manner. Theleast which the candidates who were otherwiseeligible for appointment and who had appeared inthe examination that constituted a step-in-aid of apossible appointment in their favour, were entitledto is to ensure that the selection process was notallowed to be scuttled for mala fide reasons or inan arbitrary manner.17.It is trite that Article 14 of theConstitution strikes at arbitrariness which is anantithesis of the guarantee contained in Articles14 and 16 of the Constitution. Whether or not thecancellation of the typing test was arbitrary is aquestion which the Court shall have to examine oncea challenge is mounted to any such action, nomatter the candidates do not have an indefeasibleright to claim an appointment against theadvertised posts." https://hcservices.ecourts.gov.in/hcservices/

14.As held by the Supreme Court, the candidates do not haveindefeasible right to claim appointment against the advertisedposts. If the State explains the reason for prescribing theparticular mode of selection and cancellation of the earlierprocess, such a decision cannot be frowned upon as violative ofArticles 14 and 16 of the Constitution. On the other hand, in thiscase, the impugned G.O clearly explains the mandatory directionsissued under the RTE Act which has to be obeyed by the StateGovernment. 15.Secondly, the State Government has taken a policydecision to screen the candidates before their entry to the post.In these days because of mushrooming the Teachers TrainingInstitutes and colleges all over State, such standardizationprocess is inevitable. The petitioner cannot be heard to say thattheir case should be treated differently only because of theirselection in the earlier selection process and on the basis of theold policy. 16.In view of the above factual matrix and legal precedents,the petitioner Association has not made out any case. Hence thewrit petition will stand dismissed. No costs. Consequentlyconnected miscellaneous petitions stand closed.Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.vvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government State of Tamil Nadu, (School Education) Department, Fort St George, Chennai-600 009.2.The Director, School Education, DPI Campus, College Road, Chennai-600 006.3.The Chairman, Teachers Recruitment Board, 4th Floor, EVK Sampath Buildings, College Road, Chennai-600 006.1 cc To Mr. V.S.Sivasundaram, Advocate Sr 9023W.P.NO.2108 of 2012kj[co]gp/17.2