Madras High Court
K.Gnana Sambandan vs The Government Of Tamil Nadu on 8 April, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.04.2015 CORAM THE HON'BLE MR.JUSTICE S.VAIDYANATHAN WRIT PETITION (MD) No.605 of 2015 and M.P.(MD)Nos.1 & 2 of 2015 K.Gnana Sambandan ... PETITIONER -vs- 1. The Government of Tamil Nadu, Rep. by its Secretary to Government, Law Department, Fort St.George, Chennai-9. 2. The Chairman, Teachers Recruitment Board, 4th Floor, EVK Sampath Maaligai DPI Compound, College Road, Chennai-600 006. 3. R.Raja ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India for issuance of a Writ in the nature of Certiorarified Mandamus, calling for the records on the file of 2nd respondent with regard to release of Provisional Mark LIst of candidates after oral interview No.Nil dated 12.01.2015 published in the website, pursuant to the advertisement No. 04/2014 dated 22.07.2014, quash the same with regard to 3rd respondent and consequenty direct the 2nd Respondent to consider the petitioner for appointment to the post of Lecturer (Senior Scale). !For Petitioner : Mr.K.Vairaveeran ^For R1 & R2 : Mr.R.Anandharaj Govt. Advocate For R3 : Mr.L.Madhusudhanan :ORDER
This writ petition has been filed by the petitioner for quashing the Provisional Mark List of candidates after oral interview No.Nil dated 12.01.2015 published in the website, pursuant to the advertisement No. 04/2014 dated 22.07.2014 in respect of the 3rd respondent, with a consequential prayer to direct the 2nd Respondent to consider the petitioner for appointment to the post of Lecturer (Senior Scale).
2. The case of the petitioner in nutshell is as follows:
i) The petitioner is a practicing Advocate and that he has completed Master of Law in Constitutional Law and International Law from the University of Madras through regular stream in the year 2000 by duly clearing UGC Net Exam in the same year.
ii) It is submitted by the pettioner that pursuant to the advertisement of the 2nd respondent dated 22.07.2014, he applied for the post of Lecturers (Senior Scale) / Lecturers Senior Scale (Pre-Law) for Government Law Colleges 2013-2014 and that he secured 93 marks, the 3rd respondent secured 119 marks and yet another candidate secured 90 marks. All the three candidates were called for interview by the 2nd respondent on 02.01.2015 under Scheduled Caste category, in which the petitioner and the 3rd respondent alone attended.
iii) It is further submitted that during certificate verification, the petitioner came to know that the 3rd respondent has completed his Master's Degree in Law in Constitutional Law and Human Rights from the Tamil Nadu Dr.Ambedkar Law University, Chennai and therefore, the 3rd respondent was made to wait and the petitioner was called for the interview. Thereafter, the provisional mark list of candidates after oral interview was released in the internet on 12.01.2015, wherein it was found that the 3rd respondent was also granted oral interview marks, which necessitated the petitioner to write to the Right to Information Officer, TRB, Chennai for some information. Through website, the petitioner came to know that the 3rd respondent has taken M.L. (Constitutional Law and Human Rights) from the Tamil Nadu Dr.Ambedkar Law University during the academic period 2007-2010.
iv) It is also submitted that there are five law related subjects with specific subject code and five pre-law subjects with specific subject code available from the 2nd respondent's notification and there is a specific G.O.Ms.No.133, Law (LS) dated 21.05.2009 regarding the syllabus for the subject International Law and Constitutional Law. Hence, the subject taken by the 3rd respondent is entirely different from the subject called for, but however he applied for the said post. Since the subject is totally different from the subject called for and notified in the prospectus and is in violation of G.O.Ms.No.133, Law Dept., dated 21.05.2009. both subjects cannot be equal or equivalent at any point of time. Moreover, it violates the UGC norms, which prescribes minimum of 70% nomenclature of the original course to consider a degree to be equivalent that too when specific subject code and syllabus is prescribed by the Government of Tamil Nadu regarding the selection of Lecturers (Senior Scale) for the Government Law Colleges for the concerned main subjects. The representation sent by the petitioner to the 1st and 2nd respondents also received no response. Aggrieved by the order of the Provisional Mark List, released by the 2nd respondent, the petitioner has approached this Court, challenging the same.
3. According to the petitioner, the Provisional Mark List published by the 2nd respondent on 12.01.2015 by allotting marks to the 3rd respondent in the oral interview, who is not having the main subject as per the notification, prospectus and G.O.Ms.No.133 is illegal and arbitrar and the Provisional Mark List has to be struck down, as there is a stipulation of specific subject for selection of Lecturers (Senior Scale), namely, Constitution and International law and the 2nd respondent, without verifying the basic fact that the 3rd respondent could not take International Law, which is a major subject along with Constitution and also main subject, for which the post is intended for, has passed the impugned order.
4. The second and third respondents have filed a detailed counter. The 3rd respondent in his counter has stated that Constitutional Law and International Law subjects had become independent separate subjects in the Master Degree of Law at a particular point of time and most of the Universities offered Master Degree in Law in respect of Constitutional Law and International Law separately with specialization subjects as Constitutional Law and Human Rights, Constitutional Law and Legal Order and International Law and Organization. He contended that according to the eligibility fixed by the respondents 1 and 2, any Master Degree in Law is enough to participate the post of Lecturers (Senior Scale) in Law Colleges. Accordingly, the writ petitioner and the 3rd respondent were eligible to participate in the examination. According to him, it is highly irrelevant to state that subject taken by him is entirely different from the subject called for by the respondents 1 and 2 and the syllabus for the written examination for the subject Constitutional Law and International Law covers both Constitutional Law and International Law so as to make the individual Master Degree holders either Constitutional Law or International Law to become eligible for the said post. Accordingly, the 3rd respondent sat for the examination covering both the subjects and gained more marks than the writ petitioner, though his main subject is Constitutional Law. He also contended that he is fully qualified and more eligible than the writ petitioner. Since the petitioner has failed to secure more marks in the written examination, he is raising such technical objections with regard to the similarity in the subjects.
5. According to the 3rd respondent, the question of equivalence does not arise at all. It is the contention of the 3rd respondent that he has completed his Bachelor of Law in the year 2007 and subsequently, finished the Master Degree in Law in the year 2010. Thereafter, he was awarded Doctorate in Law by the University of Madras in the year 2014, pursuant to which, he joined as Assistant Professor in a Private Law College and he has also cleared NET examination. Since the writ petition lacks merits, he prays for dismissal of the same.
6. The 2nd respondent has filed a counter, in which it is stated as follows:
"9. It is respectfully submitted that the Board would call all the candidates who secure eligible cut off marks for Certificate Verification / Interview. Only at the time of Certificate Verification, the certificates would be veried and if any defects are noticed such candidates would not be considered for further process of selection. It is also submitted that the Teachers Recruitment Board, vide Lr.Rc.No.73/A9/2015 dated 28.01.2015 requested the Director of Legal Studies, to clarify with respect to the equivalence of teh subjects, 'Constitutional Law and Human Rights' and 'Constitutional Law and Legal Order' with 'International Law and Constitutional Law'. The Director, vide Lr.Rc.No.2335/A4/2012 dated 30.01.2015 has clarified that 'Constitutional Law and Human Rights' and 'Constitutional Law and Legal Order' are not equivalent to 'International Law and Constitutional Law' as per the syllabus published by the Government in G.O.Ms.No.133, Law (LS) Department, dated 21.05.2009."
7. From the aforesaid paragraph, it is clear that 'Constitutional Law and Human Rights' and 'Constitutional Law and Legal Order' cannot be equivated to 'International Law and Constitutional Law' in the light of G.O.Ms.No.133, Law (LS) Department dated 21.05.2009. Further, the 2nd respondent has contended that the equivalence order, if any is issued by the Government, the same would be considered before finalising the selection as done in the case of other recruitments conducted by the Teachers Recruitment Board.
8. I have heard the learned counsel on either side and perused the material documents available on record.
9. The 2nd respondent has called for applications by way of an advertisement No.4 of 2014 dated 22.07.2014 from the suitable candidates for filling up the post of Lecturers (Senior Scale) / Lecturers Senior Scale (Pre-Law) for Government Law Colleges, 2013-2014 through Direct Recruitment. Both the petitioner and the third respondent applied for the post of Lecturer (Senior Scale). It is also no doubt true that the petitioner, though possessing Master Degree in Law (Constitutional Law and International Law) as mandated as per the advertisement, has scored lesser marks than the third respondent, who possesses Master Degree in Law (Constitutional Law and Human Rights).
10. Even though the advertisement published by the 2nd respondent is silent about the exact qualification in respect of the relevant discipline for the post of Lecturers (Senior Scale), in the prospectus issued along with the application, the following instruction has been incorporated:
"16(f). Candidates are informed to ascertain their full eligibility for the post to which they have applied. The onus proof of providing equivalence vested with the candidates only. TRB cannot take any responsibility for the non selection and ineligibility if any mistake detected at any stage during or after the recruitment and declaration of results and their candidature will be liable for cancellation."
The respondents have also indicated the current vacancies proposed to be filled up and the qualification prescribed in respect of all the disciplines is generally mentioned as Master's Degree in Law of any recognized University with not less than 55% marks and a good academic record along with certain eligibility criteria. Apart from that, Since the burden has been shifted on the candidates to prove their equivalence, nowhere in the advertisement, it has been mentioned with regard to the specific specialization, namely Constitutional Law and International Law or otherwise. Having understood himself that mere possession of Master's Degree in Law is enough for the said post as per the advertisement, the third respondent applied for the same and a common test was conducted, wherein the third respondent has come out successful both in the written examination as also in the oral interview.
11. In support of the contention that the third respondent, who is in possession of Master's Degree (Constitutional Law and Human Rights), is not eligible to apply for the post of Lecturer (Senior Scale), learned counsel for the petitioner has heavily relied upon a judgment of the Hon'ble Supreme Court in the case of Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University, Rep. by its Registrar and others, reported in (2014) 3 SCC 767. On a perusal of the judgment of the Hon'ble Apex Court cited by the petitioner, it is seen that the applications were invited therein for filling up various posts in different subjects, including the post of Lecturer in MCA and the advertisement required Postgraduate degree in the relevant subject. But in the case on hand, there is no mention about the relevant subject against each discipline, thereby paving a way to candidates, who, irrespective of relevant subject, possess Master's Degree in Law. Moreover the decision relied upon by the petitioner may not be helpful to the petitioner in view of the proposition laid down by the Hon'ble Supreme Court, in the case of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, wherein it has been held as follows:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
12. On a conspectus of the facts obtaining in this case, it is clear that though the third respondent is in possession of Master's Degree in Law, in view of the instruction stipulated in the prospectus, the burden is shifted to the third resepondent to prove his equivalence so as to ensure his competency in conducting classes for the students in case of his selection to the post of Lecturer (Senior Scale) by way of Direct Recruitment.
13. Therefore, this Writ Petition is disposed of with a direction to the third respondent to establish his eligibility before the 2nd respondent as per the instruction given in the prospectus stated supra. The 2nd respondent in turn is directed to ascertain the equivalency and competency of the third respondent, since he has scored more marks than the petitioner and take a decision in one way or the other after affording an opportunity of hearing to both the third respondent and the petitioner before releasing the Final Selection List of Candidates for the said post. No costs. Consequently, connected miscellaneous petitions are closed.
08.04.2015 Index:Yes/No Internet:Yes/No. ar Note: Issue order copy on 10.04.2015.
To:
1. The Secretarty, Government of Tamil Nadu, Law Department, Fort St.George, Chennai-9.
2. The Chairman, Teachers Recruitment Board, 4th Floor, EVK Sampath Maaligai DPI Compound, College Road, Chennai-600 006.
S.VAIDYANATHAN,J., ar WRIT PETITION (MD) No.605 of 2015 08.04.2015