Madras High Court
S.Daisy Rani vs High Court Of Delhi on 23 September, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2013
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.Nos.19588, 19598 to 19601, 19986, 20177, 20271 to 20277,
20278 to 20283, 20284 to 20295, 20522, 20544, 20659, 20768,
20800 to 20804, 20835, 20853, 20874, 20923, 21050, 21051, 21052,
21103, 21104, 21155, 21185, 21335, 21343, 21364 to 21366,
21428 to 21431, 21509, 21510, 21513, 21547, 21548, 21562, 21579,
21676, 21736, 21764, 21856, 21866, 21867, 21881, 21917, 21982,
22006 to 22008, 22012, 22084, 22134, 22306, 22448 to 22451, 22468,
22496, 22551, 22649 to 22655, 22716, 22757 to 22759, 22781, 22807,
22843 to 22846, 22908, 22964, 23111, 23356, 23380, 23381, 23424,
23551, 23614, 23658, 23674, 23700, 23701, 23775 to 23780, 23803,
23812, 23827, 23850, 23955, 23956, 24000, 24128 to 24130, 24296,
24433, 24526 AND 24527 of 2013
AND CONNECTED MISCELLANEOUS PETITONS
W.P.No.19588 of 2013
S.Daisy Rani .. Petitioner
1. The Chairman
Teachers Recruitment Board,
4th Floor, V.K.Sampath Building,
DPI Campus, College Road,
Chennai 600 006.
2. The Director of School Education,
DIP Campus, College Road,
Chennai 600 006. .. Respondents
* * *
Prayer in W.P.No.19588 of 2013 : Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of writ of Mandamus directing the respondents to select and appoint the petitioner to the post of BT Assistant in Tamil based on the Certificate Verification held on 12.5.2010 conducted by Teacher Recruitment Board in respect of Selection to the post of Graduate Assistant 2009-10 without insisting passing of Teacher Eligibility Test (TET) in compliance to the orders passed in R.A.No.139 of 2012 in W.A.No.2121 of 2012 dated 9.7.2013 which consequential and attendant benefits within a time frame to be fixed by this Honourable court.
* * *
For Petitioner in W.P. : Mr.G.Sankaran
No.19588 of 20123
For Respondents : Mr.A.L.Somayaji, Advocate General
in all these writ petitions assisted by Mr.P.Sanjay Gandhi,
Additional Government Pleader for
Teachers Recruitment Board for R1
and Mr.V.Subbiah,
Special Government Pleader
COMMON ORDER
Since the issues involved in all these writ petitions are common, all these writ petitions are disposed of by this common order.
2. The petitioners in all these writ petitions have either claimed appointment to the post of Secondary Grade Teachers or Graduate Assistants (B.T. Teachers), based on the certificate verification done during 2010-2011 without insisting Teacher Eligibility Test (for short 'TET') that is prescribed under the notification issued by the National Council for Teacher Education under Section 23 (1) of the Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) (for short "RTE Act").
I. Background history :
4. Before delving into the facts of these writ petitions, let me trace the history of recruitment of Secondary Grade Teachers and Graduate Assistants (B.T. Teachers) and various litigations pertaining to the same in the State.
5. The elementary schools for Standards I to V and the middle schools for Standards I to VIII were under the control of the local bodies, namely, Panchayat Unions, Municipalities and Corporations. The High Schools for Standards VI onwards were under the control of Municipalities, Corporations and Government Education Department.
6. The Secondary Grade Teachers were appointed to handle Classes upto VIII Standard and Graduate Assistant to handle classes after VIII Standard in high schools.
7. While the post of Graduate Assistant in high schools came under the purview of the TNPSC, the Secondary Grade Teachers post in Elementary Schools and Middle Schools in local bodies and the Graduate Assistants in the Municipalities and Corporations were filled by the Appointment Committee of the concerned local bodies. Those appointments were made by following selection procedure on merits and the appointments were not based on employment exchange registration seniority.
8. In 1981, the Government issued G.O.Ms.No.857, dated 23.05.1981 absorbing all the teachers in the Panchayat Union Schools as government servants as on 01.06.1981.
9. The Government also issued G.O.Ms.No.702, Education Department, dated 23.05.1986 absorbing all the teachers in Municipal and Corporation Schools as government servants with effect from 01.06.1986.
10. Thereafter, the Government issued G.O.Ms.No.1319, Education Department, dated 17.08.1987 brining all the teaching posts in the schools under the Teachers Recruitment Board (for short 'TRB') and the selection is based on merit and not on the basis of employment exchange registration seniority.
11. A deviation was made, for the first time, by issuing G.O.Ms.No.1367, Education Department, dated 03.10.1990 dispensing with the selection procedure and contemplating selection strictly on the basis of seniority of registration in the District Employment Exchanges.
12. In view of the aforesaid climatic condition, in the early 1990s, hundreds of Teachers Training Institutes have cropped up in Tamil Nadu due to the rapid commercialization of education. These Institutes have no infrastructure facilities and there were single room institutes and pavement or verandah institutions.
13. A Division Bench of this Court in P.M.Joseph V. State of Tamil Nadu, reported in 1993 Writ L.R. 604 directed to close down large number of such institutes. But the trend of mushrooming growth of such Teacher Training Institutes producing thousands of trained teachers continued as getting appointment to the post of Secondary Grade Teachers in the Government / local body schools was certain, since the recruitment to the post of Secondary Grade Teacher was solely based on district-wise employment exchange registration seniority, that is, those who have undergone teacher training in these institutions simply registered in the respective district employment exchanges and got appointment.
14. It is unfortunate that the persons trained from such institutes were recruited based on mere employment exchange registration seniority without subjecting to any selection process, such as, written test or interview, thereby seriously causing prejudice to the quality of education.
15. The said G.O.Ms.No.1367, was issued in the case of Secondary Grade Teachers. But in the case of appointment of Graduate Assistants also, the selection based on employment seniority alone, as contemplated in G.O.Ms.No.1367 for Secondary Grade Teachers, was followed, without any orders.
16. Later, within a short time, the Government felt that quality of education declined due to the appointment of Secondary Grade Teachers by employment exchange seniority pursuant to G.O.Ms.No.1367 and the said Government Order was cancelled and G.O.Ms.No.1251, Education Department, dated 14.12.1992, was issued prescribing screening test for recruitment to the post of Secondary Grade Teachers.
17. However, it is unfortunate that the selection of the Secondary Grade Teachers based on seniority was reintroduced in G.O.Ms.No.447, Education Department, dated 16.07.1996. Here again, without any written orders, the selection and appointment of Graduate Assistant was also made based on the employment exchange seniority as was done in the case of Secondary Grade Teachers pursuant to G.O.Ms.No.447.
18. The recruitment to the post of Secondary Grade Teachers was purely made based on the employment seniority at District level alone. The unemployed trained teachers, who registered in a district based on their residence, cannot seek for employment in other districts. In some districts, the literacy rate was low and there were no sufficient number of trained teachers and graduate teachers. Therefore, the chance of getting employment as Secondary Grade Teachers / Graduate Assistant (B.T. Teacher) was much brighter in those districts. This led to artificial migration of persons to such districts by producing bogus certificates of residence so as to gain entry as teachers in government / local body schools.
19. While so, the Government reintroduced the screening examination through TRB again for the selection and appointment to the post of Graduate Assistant in G.O.Ms.No.100, School Education Department, dated 27.06.2003. However, in G.O.Ms.No.100, it is stated that the recruitment to the post of Secondary Grade Teacher could be continued based only on employment exchange seniority.
20. Again, the competitive examination, as contemplated in G.O.Ms.No.100 for recruitment to the post of Graduate Assistant, was given a go-by from 2006 onwards and the appointments of Graduate Assistant were also made based on district-wise employment exchange registration seniority from 2006 onwards.
21. In the said background, district-wise seniority in the employment exchange as the criteria for recruitment to the post of Secondary Grade Teacher was questioned before this Court.
22. Ultimately, a Division Bench of this Court in Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, reported in 2008 (4) LLN 560 held that the recruitment shall not be confined to candidates sponsored by the Employment Exchange of a particular district without considering others, who have registered their names in other districts, as it violates Articles 14, 16(2) and 19(1) of the Constitution of India. The Division Bench further directed that the intimation shall be given to all the district employment exchanges and also that public advertisement shall be made throughout the State regarding the recruitment. The Division Bench also held that the recruitment to the post of Secondary Grade Teachers, which is employment in public office, shall not be confined to candidates registered in employment exchanges alone and the State was directed to issue public advertisement calling for application to those posts.
23. The matter was taken to the Apex Court in S.L.P.Nos.18227 and 18228 of 2008 questioning the aforesaid judgment of the Division Bench. The Apex Court passed an interim order dated 20.10.2008 that the appointment to the post of Secondary Grade Teachers may be made by the State Government, by calling for list of eligible persons from all the District Employment Exchanges and by newspaper Public Advertisements throughout the State. However, here again, the selection is based on the state-wide Employment Exchange seniority.
24. In view of the interim order of the Apex Court dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008, the Government issued G.O.Ms.No.220, School Education (S2) Department, dated 10.11.2008, calling for list of eligible candidates from the Employment Exchange and also by issuing public paper advertisement throughout the state for filling up the Secondary Grade Teacher post.
25. Pursuant to the same, the list of eligible candidates were obtained from the Employment Exchange and certificate verification was conducted. Further, the public paper advertisement dated 09.11.2011 was issued as directed by the Apex Court in this regard.
26. It is relevant to note that not only the private teachers' training institutes cropped up, as stated above, but private B.Ed., colleges also had a mushroom growth simultaneously producing thousands of B.Ed., graduate teachers to teach classes for Standard IX and X in high schools. When B.Ed., graduates swelled in large numbers, private aided schools sought to appoint those B.Ed., teachers in the Secondary Grade post. But such appointment were not approved by the education department of the Tamil Nadu Government and grants were not sanctioned.
27. Those private schools came to this Court pleading the appointment of B.Ed., qualified teachers in Secondary Grade post is legal and that they possess higher qualification. But a learned Single Judge held that B.Ed., qualification is not higher qualification, but it is a different qualification without having child psychology and that they are not competent to teach lower classes.
28. A Division Bench of this Court also confirmed the said judgment in Secretary & Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School V. The State of Tamil Nadu, reported in 2002 Writ L.R. 173. However, the appointments made prior disposal of the writ petitions by the learned Single were regularized by the Division Bench with the condition that those B.Ed. teachers should undergo child psychology training.
29. Thereafter, the Government issued G.O.Ms.No.100, Education Department, dated 27.06.2003 providing appointment to B.Ed., teachers to handle Classes VI onwards, that is, for classes VI to X, B.Ed., teachers are to be appointed and Secondary Grade Teachers are confined to teach Classes I to V.
30. It was a constitutional dream to provide free and compulsory education for all children upto the age of fourteen years as per Article 45 of the Constitution. The Constitution makers thought of providing such free education within a period of ten years from the commencement of the constitution. But that dream did not come true for so many years.
31. A Constitution Bench of the Apex Court in the judgment in Unni Krishnan V. State of A.P., reported in AIR 1993 SC 2178 has held that every child has a right to free education until he completes the age of 14 years.
32. Later, the Apex Court reiterated in M.C.Mehta V. State of Tamil Nadu, reported in AIR 1997 SC 699 that right to education upto the age of 14 years is part of the fundamental right to life.
33. While so, the 86th Constitution Amendment Act 2002 brought Article 21-A of the Constitution declaring that right to education of children from the age of six to fourteen is a fundamental right.
34. In the ninety-third Constitution Amendment Act, Clause (5) of Article 15 was inserted to the effect that "nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."
35. After 86th Amendment Act, it took another seven years for giving life to the constitutional provision by enacting the RTE Act in 2009, which came into force with effect from 01.04.2010. As per Section 23(1) of the RTE Act, National Council for Teachers Education (for short 'NCTE') was authorized as academic authority by the Government of India in the notification dated 31.03.2010.
36. Section 23 of the RTE Act makes it compulsory for a person, who seek appointment in the schools covered under the RTE Act, to possess minimum qualification as laid down by the academic authority. The academic authority, namely, NCTE issued notification dated 23.08.2010 in terms of Section 23(1) of the RTE Act prescribing Teacher Eligibility Test as one of the minimum qualifications for appointment of teachers.
37. As stated above, hitherto, the recruitment of teachers were solely based upon the employment exchange registration seniority. As far as the recruitment of Secondary Grade Teachers are concerned, an interim direction was issued by the Apex Court in S.L.P., as stated above, to the State to issue public advertisement besides calling the names from the employment exchanges and the recruitment shall be confined to employment exchange seniority at State level.
38. Taking into account, the said interim order of the Apex Court and also the RTE Act, the Government of Tamil Nadu issued G.O.Ms.No.181, School Education Department, dated 15.11.2011 for recruitment of Secondary Grade Teachers and B.T. Assistants for Government and local body schools.
39. As per G.O.Ms.No.181, the recruitment of Secondary Grade Teachers are to be made based on the State-wide employment exchange seniority as per the interim order of the Apex Court dated 20.10.2008 and the graduate teachers for classes VI to X are to be recruited based on TET in accordance with the guidelines framed by NCTE.
40. Pursuant to the directions issued by the Apex Court in the interim order dated 20.10.2008, the TRB issued advertisement dated 09.11.2011 for recruitment of Secondary Grade Teachers. In the advertisement, it is made clear that the selection would be strictly based on the statewide registration seniority in the employment exchange.
41. While so, one E.Jasmine Shanthi and three others filed W.P.No.28342 of 2011 seeking to quash the aforesaid advertisement dated 09.11.2011 and also seeking a consequential direction to the respondents therein (the Government and the TRB) to appoint Secondary Grade Teachers with the TET qualification as prescribed by the NCTE in its notification dated 23.08.2010 as amended by another notification dated 29.07.2011.
42. The same petitioners also filed another writ petition in W.P.No.28343 of 2011 seeking to quash paras 5, 6 and 7(1) of G.O.Ms.No.181 insofar as it deals with the process of selection of Secondary Grade Teachers recruitment is concerned with a consequential direction to the respondents to recruit Secondary Grade Teachers only in accordance with the qualifications as prescribed by the NCTE in the notification dated 23.08.2010 as amended by the subsequent notification dated 29.07.2011.
43. One private respondent, who opposed TET, got impleaded in W.P.No.28342 of 2011 and nine private respondents, who opposed TET, got impleaded in W.P.No.28343 of 2011 and they sought to reject the writ petitions.
44. A learned Single Judge disposed of both W.P.Nos.28342 and 28343 of 2011 on 10.07.2012 recording the statement made by the Chairman of the TRB in the counter-affidavit and the learned Special Government Pleader for the Government that even the Secondary Grade Teachers would be appointed only based on TET that was to be conducted on 12.07.2012, for which, more than 7 lakhs candidates applied. In fact, the learned Judge traced the entire history of appointment of Secondary Grade Teachers and considered various issues in detail.
45. The State did not file any appeal against the said order. However, the private respondent, who got impleaded in W.P.No.28342 of 2011, filed W.A.No.1736 of 2012.
46. The First Bench of this Court dismissed the W.A.No.1736 of 2012 on 22.08.2012. Apart from independently confirming the order of the learned Single Judge dated 10.07.2012 in W.P.No.28342 of 2011 by giving various reasons, the First Bench also held that in a similar issue the same First Bench dismissed the writ appeal in W.A.No.1201 of 2012 preferred by Mr.T.S.Anbarasu and 69 others on 13.07.2012.
47. Meanwhile, the Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam represented by its Secretary filed W.P.No.2108 of 2012 seeking to quash the portion of G.O.Ms.No.181 insofar as it prescribes TET qualification for persons who have already completed certificate verification conducted by the TRB for appointment as Graduate Assistants and also seeking to direct the Government and the Director of School Education to appoint the members of their association as B.T. Assistants on the basis of Statewide employment seniority as in the case of Secondary Grade Teachers.
48. As stated above, the employment exchange sponsored the names of candidates for the recruitment to the post of B.T. Assistants in the ratio of 1:5, as stipulated in G.O.Ms.No.18, Labour and Employment (N2) Department, dated 25.02.2008, and all those persons, who have been sponsored, were called for certificate verification and the senior-most persons were given appointment. The association sought selection and appointment to the left-out persons, who were called for certificate verification, but not selected.
49. A learned single Judge of this Court dismissed W.P.No.2108 of 2012 by the order dated 10.02.2012 after considering the issue in detail and relying on various judgments of the Apex Court in this regard.
50. The order dated 10.02.2012 in W.P.No.2108 of 2012 was not taken on appeal and the same attained finality.
51. While so, T.S.Anbarasu and 69 others, who were called for certificate verification for the post of Graduate Assistants (B.T. Teachers) by the TRB but not selected, filed W.P.No.4827 of 2012 seeking to forbear the respondents (Tamil Nadu Government, Director of School Education and the TRB) therein from applying G.O.Ms.No.181, School Education Department, dated 15.11.2011 and insisting on a pass in TET as a minimum qualification for appointment to the post of Graduate Assistants (B.T. Teachers) to teach classes VI to X in the schools coming under the Directorate of School Education and Elementary Education to the petitioners, who have completed the certificate verification process for the said post based on employment exchange seniority. They were also seeking a consequential direction to the respondents therein to select them only on the basis of certificate verification which was done based on employment registration seniority.
52. This writ petition in W.P.No.4827 of 2012 was also dismissed on 01.03.2012 by the same learned Judge, who disposed W.P.No.2108 of 2012, after considering the issue in detail and also considering various judgments of the Apex Court. The order dated 01.03.2012 in W.P.No.4827 of 2012 was challenged in W.A.No.1201 of 2012. The First Bench of this Court dismissed the writ appeal by a detailed judgment dated 13.07.2012.
53. Thereafter, another W.P.No.18793 of 2012 was filed by N.Paranthaman and 23 others seeking for the issuance of writ of Mandamus directing the respondents therein (the Government, Director of School Education, Director of Elementary Education and TRB) to appoint them to the post of Graduate Assistant (B.T. Teacher) on the basis of certificate verification done in May 2010 and also on the basis of State-wide seniority maintained in the employment exchange, without insisting upon the petitioners therein to write the TET as a pre-condition for appointment.
54. Following the order of the First Bench of this Court dated 13.07.2012 in W.A.No.1201 of 2012, referred to above, a learned Single Judge dismissed W.P.No.18793 of 2012 on 20.07.2012.
55. Another W.P.(MD)No.4478 of 2012 was filed by one Murugan, claiming to be the Secretary of Teachers Training Diploma and B.Ed., Graduates Association, in the Madurai Bench of this Court seeking to quash G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 and to direct the Government to recruit the teachers on the basis of employment exchange seniority.
56. This writ petition came before the same learned Judge, who decided W.P.Nos.28342 and 28343 of 2011 at the Principal Bench. The learned Judge traced the entire history leading to the passing of the RTE Act and dismissed the writ petition on 14.12.2012 and upheld G.O.Ms.No.181, dated 15.11.2011. This order attained finality, as no appeal was preferred.
57. While so, review application was filed in Review Application No.139 of 2012 in W.A.No.1201 of 2012 and Writ Appeal was filed in W.A.No.2121 of 2012 against the order dated 20.07.2012 in W.P.No.18793 of 2012 and the same were disposed of by a common judgment dated 09.07.2013 by a different Division Bench.
58. In the said order dated 09.07.2013, the different Division Bench disposed of the review application in Review Application No.139 of 2012 directing the Government to accommodate the review petitioners in future vacancies without insisting them to appear for TET. W.A.No.2121 of 2012 was also disposed of in terms of the aforesaid direction in the review application, in the common order dated 09.07.2013.
II. Prayer in these writ petitions :
59. In these circumstances, this batch of writ petitions are filed seeking a direction to the respondents to appoint these writ petitioners as Secondary Grade Teachers/Graduate Assistants (B.T. Teachers) in Government Schools and local body schools based on the certificate verification done during 2010-2011, but not selected, without insisting them to appear for TET, in terms of the order dated 09.07.2013 in Review Application No.139 of 2012.
III. Submissions of the learned Senior Counsels, Counsels and the Advocate General :
60. The learned Senior Counsels for some of the petitioners and also the other learned counsels for the petitioners have heavily relied on the judgment of the Division Bench dated 09.07.2013 in Review Application No.139 of 2012.
61. The learned Senior Counsel for the petitioners in W.P.Nos.19986, 20177, 20853, 21509, 21510, 24526 & 24527 of 2013, and some of the learned counsels submitted that since the process of appointment of teachers was initiated much prior to 23.08.2010, the date of notification of NCTE prescribing TET as one of the minimum qualifications for teachers to teach Standards I to VIII, the petitioners are exempted from passing TET as per Clause 5 of the 23.08.2010 notification and Clause 5(a) of the amended notification dated 29.07.2011, and the petitioners shall be appointed in the future vacancies, as directed by the Division Bench in the order dated 09.07.2013 in Review Application No.139 of 2012.
62. The learned Senior Counsel for the petitioners in W.P.Nos.20659 of 2013, 21917 and 22807 of 2013 and some of the learned counsels submitted that in view of the proviso to Section 23 (2) of the RTE Act, the petitioners shall be appointed based on the certificate verification that took place prior to 29.07.2011, the date of the amended notification of NCTE, subject to the condition that the petitioners shall qualify TET within a period of five years from the date of appointment.
63. On the other hand, learned Advocate General has submitted that the order of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012 reiterating its earlier order dated 13.07.2012 in W.A.No.1201 of 2012 was not brought to the notice of the different Division Bench of this Court that heard Review Application No.139 of 2012. Had it been brought to the notice of the Division Bench, which heard Review Application No.139 of 2012 about the decision rendered by the First Bench dated 22.08.2012 in W.A.No.1736 of 2012, the Division Bench would not have proceeded that the First Bench did not take into the account the factual aspect of initiation of process of appointment of teachers took place prior to the NCTE Notification dated 23.08.2010.
64. The learned Advocate General relied on paragraph 6 of the order of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012, wherein, the First Bench categorically held that initiation of process means the advertisement shall be issued prior to the date of notification and in this case the advertisement for Secondary Grade Teachers was issued only on 09.11.2011. He also relied on the categorical findings of the First Bench in the order dated 22.08.2012 in paragraph 7 of its order in W.A.No.1736 of 2012 that no one can claim a right to be appointed without passing the TET on the ground of process of recruitment commenced much earlier.
65. The learned Advocate General also submitted that even if the process of appointment to the post of teachers was initiated prior to the date of NCTE notification and candidates were called for certificate verification based on their employment exchange seniority in the ratio of 1:5, as it existed then, mere participation in the certificate verification would not give a right to those candidates to claim selection and appointment based on such participation. In this regard, he relied on the judgments of the Apex Court in State of M.P. V. Sanjay Kumar Pathak reported in 2008 (1) SCC 456 as well as the judgment of the Apex Court in East Coast Railway V. Appa Rao reported in (2010) 7 SCC 678 and the judgments of the Apex Court referred to in the order of the learned Single Judge in the order dated 10.02.2012 in W.P.No.2108 of 2012
66. He further submitted that pursuant to such process and the certificate verification, the vacancies were filled up and the non-selected candidates in the certificate verification cannot claim any right for appointment based on such certificate verification in the future vacancies and they shall qualify in TET for future appointments, for which, process of appointment takes place after the notification dated 29.07.2011 of the NCTE.
67. The learned Advocate General also relied on various judgment of the Apex Court that are cited by the learned Single Judge in the order dated 10.02.2012 in W.P.No.2108 of 2012 for the proposition that even the selected candidates has no vested right for appointment and the selection could be cancelled by the State and the only bar is that the State shall not cancel the selection in an arbitrary manner.
68. According to him, in these cases, the petitioners were 'not selected' candidates and therefore, they cannot claim any right. He submitted that the order of the learned Single Judge dated 10.02.2012 in W.P.No.2108 of 2012 attained finality as the same was not questioned and this was also not brought to the notice of the Division Bench that heard the Review Application No.139 of 2012.
69. In this connection, learned Advocate General also submitted that the First Bench of this Court in paragraph 11 of the order dated 22.08.2012 in W.A.No.1736 of 2012 also held, relying on a judgment of the Apex Court in C.Rekhi Ray Vs. High Court of Delhi, (2010) 2 SCC 637, that the appellants therein (who are similarly situated like the petitioners herein) did not have an indefeasible right to claim appointment against the advertised posts. The First Bench of this Court also held that mere empanelment of the candidates in the select list would not create a vested right to appointment and the vacancies have to be filled up as per the statutory rules in conformity with the constitutional mandate. The learned Advocate General further submitted that the First Bench did not rest its conclusions in the order dated 13.07.2012 in W.A.No.1201 of 2012 only on the principle of legitimate expectation as portrayed by the different Division Bench in the order dated 09.07.2013 in Review Application No.139 of 2013.
70. The learned Advocate General also brought to my notice the judgment of the Apex Court in Unaided Private Schools of Rajasthan V. Union of India reported in (2012) 6 SCC 1 upholding the RTE Act and it is the constitutional mandate not only to provide free and compulsory education, but also quality education as held by the Apex Court in the said judgment which was quoted by the learned Single Judge in the order dated 14.12.2012 in W.P.(MD)No.4478 of 2012.
71. The learned Advocate General also submitted that the appointment of hundreds-and-thousands of persons to vacancies solely and strictly on the basis of employment registration seniority is contrary to the dictum laid down by the Division Bench of this Court in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in (2008) 5 MLJ 1252 following the decision of the Apex Court in Excise Superintendent V. K.B.N.Visweshwara Rao, reported in 1997-I-LLJ 567. The learned Advocate General also relied on the judgment of Division Bench of this Court in Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, reported in 2008 (4) LLN 560. In public employment, appointment shall be based on selection by conducting written test / interview and the same is now made compulsory under the RTE Act. Therefore, any appointment shall be made as per the provisions of the RTE Act.
72. The learned Advocate General submitted that when TET examination took place on 12.07.2012, though more than seven lakhs candidates appeared, only 2448 qualified representing less than 1%. Hence, the appointment of teachers made to schools based on employment exchange seniority alone would have devastating effect on the education of children below 14 years. The statistics given by the learned Single Judge in paragraph 13 of the order dated 14.12.2012 in W.P.(MD)No.4478 of 2012 is brought to my notice by the learned Advocate General.
73. I have considered the submissions of both sides.
IV. Issue for consideration :
74. The issue that arises for consideration is as to whether the petitioners are entitled to claim appointment to the post of Secondary Grade Teachers / Graduate Assistants (B.T. Teachers) based on the certificate verification done during 2010-2011 without insisting a pass in TET that is prescribed under the notification issued by the NCTE.
V. Analysis :
75. The entire history leading to the enactment of the RTE Act was traced above.
76. The constitutional validity of the RTE Act was questioned before the Apex Court. The Apex Court in paragraph 64 of the judgment in Unaided Private Schools of Rajasthan V. Union of India, reported in (2012) 6 SCC 1, held that the RTE Act shall apply to the following schools :
"64. Accordingly, we hold that the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority."
77. The RTE Act applies to the School as defined under Section 2(n) of the RTE Act and the same is as follows :
"2. Definitions - (n) "School" means any recognised school imparting elementary education and includes -
(i) a school established, owned or controlled by the appropriate Government or a local authority ;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority ;
(iii) a school belonging to specified category ; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
78. Section 23(1) and (2) of the RTE Act are relevant for the purpose of these cases and the same are extracted hereunder :
"23. Qualifications for appointment and terms and conditions of service of teachers (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years."
79. The Right of Children to Free and Compulsory Education Rules, 2010 (hereinafter referred to as "the RTE Rules") were framed by the Central Government in exercise of powers conferred under Section 38 of the RTE Act. The Rules came into force with effect from 09.04.2010. Rule 17 of the RTE Rules speaks about minimum qualifications.
80. Rule 17 of the RTE Rules is extracted as hereunder :
"17. Minimum qualifications (1) The Central Government shall, within one month of the appointed date, notify an academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher.
(2) The academic authority notified under sub-rule (1), shall, within three months of such notification, lay down the minimum qualifications for persons to be eligible for appointment as a teacher in an elementary school.
(3) The minimum qualifications laid down by the academic authority referred to in sub-rule (1) shall be applicable for every school referred to in clause (n) of Section 2."
81. The Government of India authorized the NCTE as the academic authority by way of its notification dated 31.03.2010 issued under Section 23(1) of RTE Act to lay down the minimum qualification for a person to be eligible for appointment as a teacher.
82. Pursuant to the aforesaid notification of the Government of India dated 31.03.2010 authorizing NCTE as the academic authority to law down the minimum qualification for person to be eligible for appointment as a teacher, the NCTE laid down the minimum qualification for a person to be eligible for appointment as a teacher to teach classes I to VIII in "school" referred to in clause 2(n) of the RTE Act by the notification dated 23.08.2010, and one of the minimum qualifications laid down therein is that a pass in TET to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purpose. The notification came into effect from the date of the notification.
83. However, clause (5) of the aforesaid notification dated 23.08.2010 of NCTE granted exemption for appointment of teachers in the schools covered by the RTE Act from possessing the minimum qualification as prescribed in the notification, if the process for such appointment was initiated prior to the date of notification by issuing advertisement.
84. Clause 5 of the said notification dated 23.08.2010 is extracted hereunder:
5. Teacher appointed after the date of this Notification in certain cases Where an appropriate Government, or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).
85. The said notification dated 23.08.2010 was amended and the amended notification dated 29.07.2011 was issued by the NCTE. A pass in TET as one of the minimum qualifications was not changed in the amended notification.
86. Clause 5 of the amended notification dated 27.09.2011 of NCTE is extracted herein :
5.(a) Teacher appointed after the date of this Notification in certain cases Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time)
(b) The minimum qualification norms referred to in this Notification apply to teachers of Languages, Social Studies, Mathematics, Science, etc. In respect of teachers for Physical Education, the minimum qualification norms for Physical Education teachers referred to in NCTE Regulation dated 3rd November, 2001 (as amended from time to time) shall be applicable. For teachers of Art Education, Craft Education, Home Science, Word Education, etc. the existing eligibility norms prescribed by the State Government and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers. As far as we are concerned, Clause 5(a) is relevant for these cases.
87. At this juncture, it is relevant to state that Rule 18 of the RTE Rules prescribes the circumstances, in which, the State Government or the Union Territory can request the Central Government, within one year of the commencement of the RTE Act, to relax minimum qualifications. Rule 18 of the RTE Rules is extracted hereunder :
"18. Relaxation of minimum qualifications (1) The State Government and the Union territory shall, within six months from the commencement of the Act, estimate the teacher requirement as per the norms in the Scheduled for all schools referred to in clause (n) of section 2.
(2) Where a State Government or a Union territory does not have adequate institutions offering courses or training in teacher education, or persons possessing minimum qualifications as notified in sub-rule (2) of rule 17 are not available in sufficient numbers in relation to the requirement of teachers estimated under sub-rule (1), the State Government or the Union territory shall request, within one year of the commencement of the Act, the Central Government for relaxation of the prescribed minimum qualification.
(3) On receipt of the request referred to in sub-rule (2), the Central Government shall examine the request of the State Government or the Union territory and may, by notification, relax the minimum qualifications.
(4) The notification referred to in sub-rule (3) shall specify the nature of relaxation and the time period, not exceeding three years, but not beyond five years from the commencement of the Act, within the teachers appointed under the relaxed conditions acquire the minimum qualifications specified by the academic authority notified under sub-section (1) of Section 23.
(5) After six months from the commencement of the Act, no appointment of teacher for any school can be made in respect of any person not possessing the minimum qualifications notified in sub-rule (2) of rule 17, without the notification of relaxation referred to in sub-rule (3)."
In the absences of relaxation as contemplated in Rule 18, as per Rule 18(5) of the RTE Rules, no appointment of teacher shall be made without TET qualification.
88. Rule 19 of the RTE Rules is also relevant for these cases and the same is extracted hereunder :
"19. Acquiring minimum qualifications (1) The State Government and the Union territory shall provide adequate teacher education facilities to ensure that all teachers in schools referred to in sub-clauses (i), and schools owned and managed by the Central Government or the State government or Union territory or local authority under sub-clause (iii), of clause (n) of section 2, who do not possess the minimum qualifications laid down under sub-rule (2) of rule 17 at the time of commencement of the Act, to acquire such minimum qualifications within a period of five years from the commencement of the Act.
(2) For a teacher, of a school referred to in sub-clauses (ii) and (iv) of clause (n) of section 2, and of a school referred to in sub-clause (iii) of clause (n) of section 2 not owned and managed by the Central Government, State Government or Union territory or local, who does not possess the minimum qualifications laid down under sub-rule (2) of rule 17 at the time of commencement of the Act, the management of such school shall enable such teacher to acquire such minimum qualifications within a period of five years from the commencement of the Act."
89. The crux of the submissions of the learned Senior Counsels for the petitioners and the learned counsels for the petitioners is that the petitioners participated in certificate verification before the cut off date, i.e., 23.08.2010 / 29.07.2011 prescribed in the NCTE notifications and therefore, they are entitled to be appointed as Secondary Grade Teachers / Graduate Assistants (B.T. Teachers) without insisting a pass in TET.
90. In support of their submissions, they relied on paragraphs 9 to 11 of the judgment dated 09.07.2013 in Review Application No.139 of 2012. Paragraphs 9 to 11 of the judgment dated 09.07.2013 in Review Application No.139 of 2012 are extracted hereunder :
9. To find out whether the review petitioners would be covered by Clause (5) of the Notification dated 23.08.2010 issued by the National Council for Teachers Education, it is necessary to extract the said clause, which reads as under :
"5. ......
A plain reading of Clause (5) of the Notification dated 23.08.2010 indicates that if the process of appointment of teachers had been intiated prior to the date of the Notification, such appointments shall be made in accordance with the NCTE Regulations, 2001. In other words, the persons, in respect of whom the certificate verification had been done prior to the date of Notification viz., 23.08.2010, need not write the Teachers' Eligibility Test. In this case, as already stated, the review petitioners were sponsored by the Commissioner of Employment & Training for certificate verification for selection to the post of Graduate Assistant during May 2010, based on their employment exchange seniority and communal reservation, the review petitioners, along with other 32,000 candidates, were called for certificate verification, which was conducted in all the Districts between 12.02.2010 and 18.02.2011 and the review petitioners appeared for certificate verification between 12.05.2010 and 15.05.2010. The respondents have not disputed the above facts. When that being the case, the respondents cannot direct the review petitioners to undergo the Teachers' Eligibility Test for selection to the post of Graduate Assistant.
10. Admittedly, in the present case, the process of appointment of teachers had been initiated prior to the date of the Notification viz., 23.08.2010 and therefore, such appointments shall be made in accordance with the NCTE Regulations, 2001. Therefore, it is clear that the review petitioners fall within the category of Clause (5) of the Notification dated 23.08.2010, which clearly exempts them from appearing for the Teachers' Eligibility Test and they are entitled for appointment as Graduate Assistants without insisting for the Teachers' Eligibility Test. The learned Single Judge as well as the Division Bench, while passing the order, had not gone into the above factual aspects of the case and the writ appeal had been dismissed by the Division Bench, by considering the said Government Order as the policy decision and the right claimed by the review petitioners as the legitimate expectation. As the factual aspects of the case had not been gone into in the writ appeal, this review petition has to be necessarily allowed. The facts involved in the decision of the Hon'ble Supreme Court of India and relied upon by the Division Bench related to the policy decision of the Government. In the present case, the review petitions make their claim solely on the basis of the exemption granted under Clause (5) of the Notification dated 23.08.2010 issued by the Government of Tamil Nadu. Learned Advocate General appearing for the respondents, under instructions, submitted that no vacancies are available as on today in respect of the posts claimed by the review petitioners. In view of the said submission made by the learned Advocate General, we consider it appropriate to direct the respondents to accommodate the review petitioners in future vacancies, without insisting them to appear for the Teachers' Eligibility Test.
11. With the above direction, the review application is disposed of. Since the appellants in W.A.No.2121 of 2012 are also similarly placed like that of the review petitioners, the order passed in the review application is equally applicable to them also. The writ appeal is also disposed of accordingly. No costs. ..."
91. The Division Bench which rendered the judgment dated 09.07.2013 in the Review Application No.139 of 2012 proceeded on the basis that the learned Single Judge as well as the First Bench that rendered the judgment in W.A.No.1201 of 2012 did not go into the factual aspect, i.e., the factual aspect of the petitioners therein having participated in the certificate verification before 23.08.2010, the date of NCTE notification. In fact, the judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012, which approved its earlier order dated 13.07.2012 in W.A.No.1201 of 2012, was not brought to the notice of the different Division Bench that decided the Review Application No.139 of 2012. In paragraph 10 of the order dated 22.08.2012 in W.A.No.1736 of 2012, the First Bench referred its earlier decision dated 13.07.2012 in W.A.No.1201 of 2012. Thereafter, in paragraph 11, it is made clear that the participation in certificate verification will not be a guarantee for the job and that merely because the candidates were called for certificate verification by the TRB cannot clothe them with any indefeasible right to secure appointment.
92. The First Bench further held that mere empanelment of the candidates in the select list would not create a vested right to be appointed and the vacancies have to be filled up as per the statutory rules in conformity with the constitutional mandate as held by the Apex Court in C.Rakhi Ray V. High Court of Delhi, (2010) 2 SCC 637. Paragraph 11 of the judgment dated 22.08.2012 in W.A.No.1736 of 2012 is extracted hereunder:
"11. In that case too, the appellants did not challenge G.O. Ms. NO.181 dated 15.11.2001 by which call letters were issued to the appellants by the Teachers Recruitment Board to attend the certificate verification process, wherein it was made clear that calling the candidates for the verification of the certificates and participation in the same will not be a guarantee for the job and the decision of the TRB with regard to the eligibility of the candidates will be final. Therefore, merely because the appellants were called for verification of their certificates by the TRB cannot clothe them with any indefeasible right to secure appointment. In that case, the appellants rested their case on the ground of legitimate expectation and it was argued before the learned single Judge that the appellants having undergone the certificate verification process should be appointed and they should be granted time to acquire the TET Qualification. The learned single Judge dismissed the writ petition holding that the appellants did not have an indefeasible right to claim appointment against the advertised posts, and mere empanelment of the candidates in the select list would not create a vested right to be appointed and the vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate, as held in C. Rakhi Ray vs. High Court of Delhi, (2010) 2 S.C.C. 637."
93. Therefore, paragraph 11 of the judgment dated 22.08.2012 in W.A.No.1736 of 2012 of the First Bench makes it clear that the First Bench that rendered the judgment dated 13.07.2012 in W.A.No.1201 of 2012 took note of the factual aspect that the writ petitioners therein participated in the certificate verification before 23.08.2010, the date of NCTE notification, but the same could not give them any right to seek appointment. In fact, the First Bench agreed with the findings of the learned Single Judge that even if the candidates were selected and empaneled, the same would not give a right to those candidates to seek appointment based on such selection, by referring to the judgment of the Apex Court in C. Rakhi Ray vs. High Court of Delhi, (2010) 2 SCC 637. This judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012 was unfortunately not brought to the notice of the different Division Bench that decided the Review Application No.139 of 2012 on 09.07.2013.
94. Therefore, I am of the view that had the judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012 been brought to the notice of the Division Bench that decided Review Application No.139 of 2012, the Division Bench would not have come to the conclusion that the order of the learned Single Judge dated 01.03.2012 in W.P.No.4827 of 2012 that was confirmed by the First Bench in the judgment dated 13.07.2012 in W.A.No.1201 of 2012 did not take into account the factual aspect of the participation of the writ petitioners therein in the certificate verification before the NCTE notification dated 23.08.2010.
95. In all those cases including W.A.No.1376 of 2012, the petitioners/ appellants and also the petitioners in these cases participated in certificate verification, since their names were sponsored by the employment exchange at the ratio of 1:5 for appointment, to the posts of Secondary Grade Teacher / Graduate Assistant. But all of them were not selected as they were not sufficiently senior. Mere participation in the certificate verification could not clothe them with the right to seek appointment, as categorically held by the Division Bench in the judgment dated 22.08.2012 in W.A.No.1736 of 2012.
96. Paragraph 5 of the notification dated 23.08.2010 and 5(a) of the amended notification dated 29.07.2011 of the NCTE have granted exemption only to SUCH APPOINTMENT that could be made after the publication of the notification, if the process of appointment was initiated by issuing the advertisement in this regard prior to the date of notification.
97. In this case, senior candidates, who participated along with the petitioners herein, were selected for the notified vacancies and they were appointed without insisting a pass in TET, but these petitioners were not selected. Those selected / appointed candidates come under the exempted category of Clause 5 and 5(a) of NCTE notification dated 23.08.2010 and 29.07.2011. Those appointments are to be termed as "SUCH APPOINTMENT" as used in the NCTE notification. The non-selected Secondary Grate Teachers / Graduate Assistants cannot seek appointment in the future vacancies, for which, the process of appointment has to take place after the date of NCTE notifications.
98. In fact, the different Division Bench, which passed the order dated 09.07.2013 in Review Application No.139 of 2012, accepted the contentions of the learned Advocate General that all vacancies were filled up and there were no vacancies. But, still, the Division Bench in the order dated 09.07.2013 in Review Application No.139 of 2012 directed the respondents to appoint the revision petitioners, who are similarly situated like the petitioners herein, in the future vacancies that are to be filled up. In my view, the direction issued in the review petition to fill up the vacancies in future without following the statutory regulations under the RTE Act that makes it mandatory that no teacher shall be appointed without TET qualification, is opposed to the law laid down by the Apex Court in C.Rakhi Ray V. High Court of Delhi, (2010) 2 SCC 637 that has been referred to by the First Bench in the order dated 22.08.2012 in W.A.No.1736 of 2012. Further, the order dated 09.07.2013 in Review Application No.139 of 2012 is also opposed to the judgments of the Apex Court in Ashok Kumar Sharma and others V. Chander Shekhar and another reported in (1997) 4 SCC 18, State of M.P. v. Sanjay Kumar Pathak reported in (2008) 1 SCC 456 and East Coast Railway v. Mahadev Appa Rao reported in (2010) 7 SCC 678 and the judgments of the Division Benches of this Court in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in 2008 (5) MLJ 1252 and Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, reported in 2008 (4) LLN 560.
VI. Secondary Grade Teachers :
99. The decision of the Division Bench of the Madurai Bench of this Court in Unemployed Secondary Grade Teachers Welfare Association V. State of Tamil Nadu, reported in (2008) 4 L.L.N. 560, held that confining selection of Secondary Grade Teachers only from the candidates sponsored by the Employment Exchange of a particular District, without considering the willingness, availability and suitability of similar candidates, who have registered in the other district employment exchanges, is violative of fundamental rights. The matter was taken to the Apex Court on appeal in S.L.P.Nos.18227 and 18228 of 2008.
100. The Apex Court passed the interim order dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008 and the same is extracted hereunder:
Leave granted.
In so far as the applications for impleadment, they shall be brought up along with the main matters.
Having regard to the fact that a large number of vacancies in the State have remained unfilled, the State Government sought leave to fill the posts. On the submissions made, we make the following interim order accepting the State's proposal:
"Appointment to the post of Secondary Grade Teachers may be made by the State Government, by calling the list of eligible persons from all the District Employment Exchanges and by newspaper Public Advertisements throughout the State so that any willing candidate even though registered in different Districts can participate in the selection. It shall be made clear in the Public Advertisement that the selection would be based on the Employment Exchange seniority. It shall also be made clear that any person selected and appointed in a particular School within a District cannot aspire for or seek transfer to another School outside the District."
This aforesaid arrangement will apply for any recruitment to be made pending disposal of these appeals.
101. When the Apex Court passed the interim order dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008, the RTE Act was not enacted and NCTE regulation was not notified.
102. Since large number of vacancies of Secondary Grade Teachers were not filled up due to prolonged litigation and taking note of the interim order of the Apex Court dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008, the Government issued G.O.Ms.No.220, School Education (S2) Department, dated 10.11.2008, calling for list of eligible candidates from the Employment Exchange and also by issuing public paper advertisement throughout the state for filling up the Secondary Grade Teacher post.
103. Pursuant to the same, the list of eligible candidates were obtained from the Employment Exchanges and certificate verification was conducted. Further, the public paper advertisement dated 09.11.2011 was issued as directed by the Apex Court in this regard.
104. In the circumstances, when the Government issued G.O.Ms.No.181, School Education Department, dated 15.11.2011 for appointment to the post of Secondary Grade Teachers and Graduate Assistants, RTE Act was enacted and the notification dated 23.08.2010 as well as the amended notification dated 29.07.2011 of NCTE were issued. However, in view of the interim order of the Apex Court, referred to above, the Tamil Nadu Government has stated in G.O.Ms.No.181, dated 15.11.2011 that the appointment of Secondary Grade Teachers could be made only based on statewide seniority in Employment Exchange Registration. It is stated in G.O.Ms.No.181, that as far as appointment of Graduate Assistants are concerned, the appointment shall be made based on TET in accordance with the guidelines framed by the NCTE.
105. Paragraph 7 of G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, which is relevant for these cases, is extracted in this regard:
7. The Government carefully examined on the lines of the orders of Supreme Court of India in SLP (C) No.18227-18227 dated 20.08.2008 and National Council for Teacher Education guidelines and issue the following orders in respect of change of policy for recruitment of Secondary Grade and B.T. Teachers.
i.In respect of Secondary Grade Teachers, the statewide seniority in Employment Exchange Registration will continue to be followed till the disposal of the SLP filed in the Supreme Court of India.
ii.In respect of Graduate Assistants (B.T. Teachers recruited by TRB for the Classes VI to X) in all middle schools, High/Higher Secondary Schools, selection through written examinations ("Teacher Eligibility Test) in accordance with the guidelines framed by National Council for Teacher Education and certificate verification, will be followed.
iii.The Teachers Recruitment Board is designate as the Nodal Agency for conducting of Teacher Eligibility Test and recruitment of Teachers."
106. The aforesaid advertisement dated 09.11.2011 relating to recruitment of Secondary Grade Teachers was questioned in W.P.Nos.28342 and 28343 of 2011 by some of the unemployed trained teachers with a consequential direction to the respondents therein to appoint the Secondary Grade Teachers with TET qualification as prescribed by the NCTE only. When the said cases were heard by a learned Single Judge, the Chairman of the TRB as well as the learned Special Government Pleader stated before the learned Single Judge, who heard those writ petitions, that the appointment of Secondary Grade Teachers would also be made on the basis of a pass in TET as in the case of Graduate Assistant (B.T. Assistant) and TET was to be conducted on 12.07.2012 and more than seven lakhs candidates have applied for the test.
107. Recording the aforesaid statement, the writ petitions W.P.Nos.28342 and 28343 of 2011 were disposed of on 10.07.2012. In this regard, paragraphs 12 to 15 of the order dated 10.07.2012 in W.P.Nos.28342 and 28343 of 2011 are extracted hereunder :
12. Since paragraph 7.1. of the said Government Order (G.O.Ms.No.181, dated 15.11.2011) gave an impression that persons who participated in the present selection process may not be required to pass the Teacher Eligibility Test, the petitioners have come up with the above writ petitions, challenging the advertisement dated 09.11.2011 in the first writ petition and challenging paragraph 7.1. of the Government Order in the second writ petition.
13. The core and only contention of the petitioners in these writ petitions is that since the present recruitment of Secondary Grade Teachers is also in pursuance of an advertisement issued on 09.11.2011, the Government is entitled to appoint only those who pass Teacher Eligibility Test in accordance with the NCTE Regulations issued on 23.8.2010 and amended on 29.7.2011.
14. The Chairman of the Teachers Recruitment Board has filed a counter affidavit in both these writ petitions. In the counter affidavits, apart from narrating the history of the recruitment process, which has seen the tide of fortunes swinging between both sides, he has also stated in paragraph 13 that the prescription of NCTE Regulations would be applicable to all the appointments made. Particularly in paragraph 13 of the counter, the Chairman of the Teachers Recruitment Board has made it clear that only those who pass the Teacher Eligibility Test will be appointed in the present recruitment process.
15. As a matter of fact, Mr.E.Sampath Kumar, learned Special Government Pleader submitted that the Government has already announced the date for the conduct of the Teacher Eligibility Test as 12.7.2012 and that more than about seven lakhs candidates have already applied for the test. In other words, the apprehension of the writ petitioners that persons who have not passed the Teacher Eligibility Test are likely to be appointed, does not survive any longer, in view of the stand taken by the second respondent in their counter affidavit and also the information furnished across the Bar by the learned Special Government Pleader.
108. A person similarly situated like the writ petitioners, who has participated in the certificate verification for the post of Secondary Grade Teacher, got impleaded in W.P.No.28342 of 2011. He filed W.A.No.1736 of 2012 against the order dated 10.07.2012 in W.P.No.28342 of 2011. The State did not file appeal.
109. Before the First Bench of this Court, it was sought to be argued that the order of the learned Single Judge is opposed to the interim order of the Apex Court dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008. The said contention of the appellants in W.A.No.1736 of 2012 is incorporated in paragraph 9 of the judgment dated 22.08.2012 in W.A.No.1736 of 2012 and the same is extracted hereunder :
9. Learned counsel for the appellant assailed the impugned order on the ground that the matter relating to appointment of Secondary Grade Teachers is seized by the Supreme Court and in view of the interim direction issued therein, the writ petition ought not to have been entertained by the High Court, much less any direction issued. ....
110. But the said contention was rejected by the First Bench. The First Bench agreed with the findings of the learned Single Judge that the public paper advertisement dated 09.11.2011 was issued pursuant to the order of the Apex Court, referred to above, after NCTE notification dated 29.07.2011 and therefore, the exemption under Clause 5(a) of the amended notification cannot be claimed by the candidates/the petitioners therein.
111. In this regard, it is relevant to extract paragraphs 17 and 18 of the order of the learned Single Judge dated 10.07.2012 in W.P.Nos.28342 & 28343 of 2011 as hereunder :
"17. As luck would have it, the process of appointment of B.T. Assistants got completed even before the NCTE Regulations of 23.8.2010 were sought to be implemented. The process of recruitment of Secondary Grade Teachers got delayed on account of the Recruitment Board taking a long time in issuing the advertisement only on 09.11.2011, after a period of three years from the date of the order of the Supreme Court, namely 20.10.2008. According to the learned counsel for the contesting respondents, if the Government had acted swiftly, the advertisements would have been issued much before the NCTE Regulations prescribing an additional qualification, came into effect. Therefore, it is their contention that Clause 5(a) of the amendment introduced by the NCTE Regulations dated 29.7.2011 has to be understood to mean that in cases where the process of recruitment had already commenced, candidates have to be selected only on the basis of seniority of registration in the Employment Exchange, subject however to the condition that they pass the Teacher Eligibility Test within a period of five years from the date of their appointment.
18. But, I can hardly accept the above contention. The expression used in Clause 5(a) of the amended Regulations issued by the NCTE on 29.7.2011 makes it very clear that if the process of recruitment had started by the issue of an advertisement prior to the date of the said notification, then, it shall follow the old Regulations. Regulation 5(a) uses expression "has issued an advertisement to initiate the process of appointment". The expression "process of appointment" on which the learned counsel for the contesting respondents lay emphasis, cannot be disassociated from the expression "an advertisement", which precedes the said expression. Therefore, the process of recruitment cannot be taken to have been initiated even before the date of issue of the advertisement, namely, 09.11.2011."
112. The aforesaid findings of the learned Singe Judge was upheld in paragraph 6 of the order dated 22.08.2012 in W.A.No.1736 of 2012 as hereunder:
"6. The learned single Judge rejected the contention that Clause 5(a) of the Amendment introduced by the NCTE Regulations on 29.7.2011 has to be understood to mean that in cases where the process of recruitment had already commenced, candidates have to be selected only on the basis of seniority of registration in the Employment Exchange, subject to the condition that they pass the Teacher Eligibility Test within a period of five years from their appointment. The expression used in the aforesaid clause makes it very clear that if the process of recruitment had started by the issue of an advertisement prior to the date of the said notification, then, it shall follow the old Regulations and therefore, the process of recruitment cannot be taken to have been initiated even before the date of issue of the advertisement, i.e. 9.11.2011."
113. At this juncture, it is relevant to take note of the fact that the Civil Appeals that arose out of S.L.P.Nos.18227 and 18228 of 2008 were disposed of by the Apex Court on 05.09.2013, by recording the statement of both the parties in the following terms:
"Heard Mr.R.Venkataramani, learned Senior Counsel appearing in support of the appellants and Mr.Sumit Kumar, learned counsel appearing for the respondent No.1. We record the statement of Mr.Venkataramani to the following effect namely :
'That the teachers who were appointed prior to the G.O. Dated 15.11.2011 will remain protected and as far as the transfers outside their Districts are concerned, it is for them to apply to the authority concerned and the authority concerned and the authority concerned will consider their applications in accordance with their rules.' The respondents are satisfied with the statement of Mr.Venkataramani, learned Senior Counsel for the appellants.
In view of the above, the Civil Appeal Nos.6186-6187/2008 stand disposed of."
Hence, reliance placed by the petitioners on the interim order dated 20.10.2008 in S.L.P.Nos.18227 and 18228 of 2008 has no substance.
114. Therefore, the candidates, who participated in the certificate verification for Secondary Grade Teachers, cannot seek for appointment based on their certificate verification, more particularly, in view of the judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012.
VII. Graduate Assistants (B.T. Assistants) :
115. As far as Graduate Assistants (B.T. Assistants) are concerned, when G.O.Ms.No.181, dated 15.11.2011 was issued insisting that selection would be made only based on TET qualification, the same was questioned in W.P.No.2108 of 2012 by the Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam representing the persons, who were similarly situated like the petitioners herein and who have participated certificate verification for the post of Graduate Assistant (B.T. Assistant), but were not selected. The learned Single Judge dismissed W.P.No.2108 of 2012 on 10.02.2012 holding that mere inclusion of names in the select list will not give right to get employment as held by the Supreme Court in Rakhi Ray V. High Court of Delhi reported in (2010) 2 SCC 637 and hence, the candidates cannot seek for appointment based on mere participation in certificate verification, which is based on mere employment exchange seniority.
116. Paragraph 11 of the order of the learned Single Judge dated 10.02.2012 in W.P.No.2108 of 2012 is extracted hereunder:
"11.As to whether their selection should be considered on the basis of the earlier process based upon certificate verification done by the TRB, it must be noted that mere inclusion of names in the select list will not give right to get employment as held by the 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 list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment."
117. Furthermore, the learned Single Judge has also referred to relevant portions of the judgment of the Apex Court in State of M.P. V. Sanjay Kumar Pathak reported in 2008 (1) SCC 456 as well as the judgment of the Apex Court in East Coast Railway V. Appa Rao reported in (2010) 7 SCC 678 in paragraphs 12 and 13 respectively for the proposition that the empanelment in the select list cannot give any vested right to those persons to seek appointment. In this regard paragraphs 12 and 13 of the order dated 10.02.2012 in W.P.No.2108 of 2012 are extracted hereunder:
"12.Further, it cannot be said that they have got vested right and that appointment should be given. In this context, it is necessary to refer to a judgment of the Supreme Court in State of M.P. v. Sanjay Kumar Pathak reported in (2008) 1 SCC 456 and in paragraphs 15, 18, 21, 22 and 24, it was observed as follows:
"15.The respondents do not dispute before us that the tabulation of the marks obtained by them was not finalised. For the purpose of selection, the marks allotted to each of the candidates should be known to the members of the Selection Committee. Members of the Selection Committee before preparing the select list were entitled to undergo a consultative process so as to enable them to arrive at a consensus in regard to the candidates who should be appointed. As the tabulation process itself was not completed, the question of preparing any select list also did not arise.
18........ As the selection process itself was not complete, there was nothing before the Tribunal as also the High Court to indicate that they had acquired legal right of any kind whatsoever. Even where, it is trite, the names of the persons appeared in the select list, the same by itself would not give rise to a legal right unless the action on the part of the State is found to be unfair, unreasonable or mala fide. The State, thus, subject to acting bona fide as also complying with the principles laid down in Articles 14 and 16 of the Constitution of India, is entitled to take a decision not to employ any selected (sic candidate) even from amongst the select list......
21.In K. Jayamohan v. State of Kerala, (1997) 5 SCC 170, this Court held:
"5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference."
(See also Munna Roy v. Union of India, (2000) 9 SCC 283)
22. In All India SC&ST Employees' Assn. v. A. Arthur Jeen, (2001) 6 SCC 380, it was opined:
"10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India, (1991) 3 SCC 47. Para 7 of the said judgment reads thus:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 or Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122." "
24.In Pitta Naveen Kumar v. Raja Narasaiah Zangiti, (2006) 10 SCC 261, this Court observed:
"32. The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise."
In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee."
13. Further the Supreme Court has held that even when selection was made and subsequently it was cancelled, there is no right to question the same, vide its judgment in East Coast Railway v. Mahadev Appa Rao reported in (2010) 7 SCC 678 and in paragraphs 14 to 17, it has been held as follows:
"14.It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.
15.To the same effect is the decision of this Court in UT of Chandigarh v. Dilbagh Singh10 where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a mala fide manner. That was also a case where the selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a #dubious selection".
16.Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step-in-aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner.
17.It is trite that Article 14 of the Constitution strikes at arbitrariness which is an antithesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts."
118. It is relevant to take note of the fact that the order dated 10.02.2012 in W.P.No.2108 of 2012 (Tamil Nadu Pattathari Asiriyargal Velaivaippup Sangam rep. by its Secretary NA.Murugadass V. The State of Tamil Nadu rep. by its Secretary to Government, School Education Department, and others) attained finality as no appeal was preferred against the said order.
119. Furthermore, no one can take exception to the law laid down by the Apex Court that has been incorporated by the learned Single Judge in paragraphs 11 to 13 that were extracted above.
120. Therefore, the petitioners, who have participated in the certificate verification for the post of Graduate Assistant (B.T. Assistant) cannot seek for appointment, particularly, when they were not selected and they can not even claim the status of the persons who got empanelled in the select list, but not issued with appointment orders.
121. Later, after filing of W.P.No.2108 of 2012 by Pattathari Asiriyargal Velaivaippup Sangam, some of the candidates, who participated in the certificate verification for the post of Graduate Assistant but not given appointment orders, filed W.P.No.4827 of 2012 (T.S.Anbarasu and 69 others) with a similar prayer as that of the prayer in W.P.No.2108 of 2012. Here again, the learned Single Judge rejected the claim of the petitioners therein relying on the judgments of the Apex Court in Rakhi Ray v. High Court of Delhi reported in (2010) 2 SCC 637, State of M.P. v. Sanjay Kumar Pathak reported in (2008) 1 SCC 456 and East Coast Railway v. Mahadev Appa Rao reported in (2010) 7 SCC 678. This judgment was confirmed by the First Bench of this Court on 13.07.2012 in W.A.No.1201 of 2012. But the Review Application No.139 of 2012 was allowed by a different Division Bench as if the First Bench did not take note of the factual aspect of the participation of the petitioners therein in the certificate verification before the date of notification of NCTE. But the said conclusion was arrived at by the different Division Bench in the order dated 09.07.2013 in Review Application No.139 of 2012, without considering the judgment dated 22.08.2012 in W.A.No.1736 of 2012. The same was dealt in detail above.
122. The well-settled principles reiterated in the judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012 and also the judgments of the Apex Court referred to above make it clear that the petitioners, who participated in certificate verification for the post of Graduate Assistant, are not entitled to seek appointment based on mere participation in the certificate verification.
VIII. TNTET 2012 and 2013 :
123. For the first time, pursuant to the notification of NCTE, the Tamil Nadu Government conducted TNTET on 12.07.2012 through TRB. 7,14,526 appeared in the TNTET 2012 examinations. Only 2,448 obtained the pass in TET and therefore, the Tamil Nadu Government again conducted a supplementary TET on 14.10.2012, in which 19,261, out of 6,43,095 participated, secured the pass. All of them were appointed as Secondary Grade Teachers / Graduate Assistants.
124. In fact, the TRB issued Advertisement dated 22.05.2013 for TNTET 2013 and the Written examinations were also held on 17.08.2013 and 18.08.2013.
125. Therefore, the candidates, who participated in the certificate verification for the posts of Secondary Grade Teachers / Graduate Assistants, cannot seek for appointment based on their participation in certificate verification, relying on the judgment of the Division Bench dated 09.07.2013 in review Application No.139 of 2012, in view of the judgment of the First Bench dated 22.08.2012 in W.A.No.1736 of 2012.
IX. Cut-off date relating to eligibility criteria :
126. The Apex Court categorically held in the judgment in Ashok Kumar Sharma and others V. Chander Shekhar and another reported in (1997) 4 SCC 18 that qualification prescribed for appointment for the public employment under the relevant statutory rules shall be on the last date of receipt of application, pursuant to the advertisement calling for the application for the post. That is, if an advertisement is issued calling for applications to fill up the post of Secondary Grade Teacher / Graduate Assistant (B.T. Assistant), after 29.07.2011, the date of NCTE notification, the candidates shall possess a pass in TET to seek those appointments. In these circumstances, advertisement was issued by TRB in the notification dated 07.03.2012 calling for applications to fill up the posts of Secondary Grade Teacher / Graduate Assistant prescribing that candidates shall secure a pass in TET. 7,14,526 candidates appeared for TET on 12.07.2012 pursuant to the said notification and 2,448 were successful. Therefore, supplementary TET was conducted on 14.10.2012 and 6,43,095 appeared and 19,261 were successful. All the successful candidates were appointed as Secondary Grade Teachers / Graduate Assistants.
127. Therefore, the judgment dated 09.07.2013 in Review Application No.139 of 2013 directing the respondent therein to appoint the review petitioners, who are similarly situated like the petitioners herein, in future vacancies based on their participation in certificate verification is contrary to the dictum of the Apex Court in Ashok Kumar Sharma and others V. Chander Shekhar and another reported in (1997) 4 SCC 18.
X. A glimpse of Government Orders relating to appointment of Secondary Grade Teachers / Graduate Assistants :
128. The Secondary Grade Teachers were appointed based on merit assessed in the selection process and the appointments were not based on mere seniority in the employment exchange, prior to 1990. For the first time, G.O.Ms.No.1367, Education Department, dated 03.10.1990 was issued dispensing with the selection based on merit and providing for appointment by selecting the candidates based on their registration seniority in the District Employment Exchange. The same is also followed in the matter of appointment to the post of Graduate Assistant, that is, Graduate Assistants were also appointed like the Secondary Grade Teachers based on employment exchange seniority.
129. However, the G.O.Ms.No.1367 was reversed in 1992 by issuing government order in G.O.Ms.No.1251, Education Department, dated 14.12.1992. While withdrawing G.O.Ms.No.1367, the government stated in paragraph 3 of G.O.Ms.No.1251 that screening test was to be introduced so as to select qualitatively better and suitable teachers. Paragraphs 3 and 4 of G.O.Ms.No.1251 are extracted hereunder:
"3. The Government revised the selection procedure adopted so far. In order to select qualitatively better and suitable candidates for appointment of teachers the Director of School Education was requested to send revised proposals. The Director of School Education has submtted a revised proposal to Government. The Government have carefully examined the proposal of the Director of School Education and have decided to accept it. Accordingly, the Government directed the following procedure should be adopted in the matter of selection of Secondary Grade Teacher and Specialist Teachers on similar grade and scales of pay in Government/Municipal and Panchayat Union Schools with immediate effect.
i.All Candidates who possess the Diploma in Teacher Education awarded by the competent Board of Examinations including those of other States shall be permitted to appear for Screening Test to be conducted by the Director of Government Examinations subject to the condition that they should possess minimum General Educational Qualifications prescribed by the Government of Tamil Nadu for admission to Two Year Diploma in Teacher Education Course viz., Xth Standard for those admitted to the course prior to the academic year 1987-1988 and XII standard for those admitted to the course from the academic year 1987-88 onwards.
ii.Conditions holding pre-primary certificate shall also be permitted to sit for screening test to be conducted by the Director of Government Examinations subject to the condition such candidates selected for appointment will be permitted to handle class I to III only.
iii.The Director of Government Examination shall communicate the marks obtained by each candidate in the screening test to the Teacher Recruitment Board.
iv.The Teachers Recruitment Board shall recruit candidates on the norms and conditions to be prescribed and communicated to them in due course by the Government and district wise allotment of candidates shall be made with reference to the estimate of vacancies to be furnished by the Director of Elementary Education and Director of School Education. For filling up the vacancies in schools located in hill areas, preference shall be given to local candidates.
v.The Teachers Recruitment Board shall obtain the estimate of vacancy position from the Director of Elementary Education and Director of School Education for recruitment of candidates be made accordingly.
4. The State Level Screening Test Examination will be conducted by the Teachers Recruitment Board, Madras through the Director of Government Examinations, Madras. The application fee shall be fixed at Rs.50/- only. Out of 100 marks prescribed for the Screening Test 60 marks shall be prescribed for objective type questions and 40 marks shall be prescribed for Descriptive type questions. Only those who have secured 50% of the marks and above in the State Level Screening Test Examination alone shall be considered for by the Teachers Recruitment Board, Madras, for interview. Section to the post will be based on merit-cum-communal rotation basis."
130. But the same remained for a short time. Again the appointment of Secondary Grade Teachers based on employment exchange seniority was restored by G.O.Ms.No.447, Education Department, dated 16.07.1996. The relevant passage in G.O.Ms.No.447 in this regard are extracted hereunder:
nkny gof;fg;gl;l murhizapd;go. ,Jehs; tiuapy; bjhlf;f kw;Wk; gs;spf; fy;tpj; Jiwapy; cs;s ,ilepiy Mrpupau; gzpapl';fSf;F jkpH;ehL Mrpupau; nju;t[ thupaj;jpd; K:yk; nju;t[ bra;ag;gl;L gzp epakd';fs; tH';fg;gl;L te;jd/ 2/ jw;bghGJ eilKiwapy; cs;s Mrpupau; nju;t[ thupaj;jpd; K:yk; ,ilepiy Mrpupau;fs; nju;e;bjLf;Fk; Kiwapid iftpl;L. rk;ge;jg;gl;l ntiy tha;g;g[ mYtyfk; gjpt[ K:g;gpd; mog;gilapy; epakdk; bra;a ntz;Lk; vd muR bfhs;if Kot[ vLj;jjd; mog;gilapy;. ,jw;fhd fUj;JUf;fis bjhlf;ff; fy;tp ,af;Feu; murpd; guprPyidf;F mDg;gp itj;jhu;/ 3/ MH;e;j guprPyidf;Fg; gpd;du;. bjhlf;ff; fy;tp kw;Wk; gs;spf; fy;tpj; Jiwf;F njitg;gLk; ,ilepiy Mrpupau;fis fPH;f;fz;l Kiwapy; elg;g[ fy;tpahz;L Kjy; nju;t[ bra;ag;gl ntz;Lk; vd;W muR MizapLfpwJ/
(i) jw;bghGJ mKypy; ,Uf;Fk; eilKiwf;Fg; gjpyhf ,ilepiy Mrpupau;fs; ntiy tha;g;gfj;jpy; gjpt[ bra;j Kd;Dupikapd; mog;gilapy; nju;t[ bra;ag;gl ntz;Lk;/ khtl;l Kjd;ikf; fy;tp mYtyu; jiytuhft[k;. khtl;lf; fy;tp mYtyu;-bjhlf;ff; fy;tp mYtyu; cWg;gpduhf bfhz;l FG ,j;nju;tpid elj;Jk;/ rk;ge;jg;gl;l epakd mYtyu;fs; epakd';fs; bra;tu;/ fhypg; gzpapl tptuk; rk;ge;jg;gl;l epakd mYtyuhy; FGtpw;F mDg;gg;gLk;/
131. After issuance of G.O.Ms.No.447 relating to Secondary Grade Teachers, the same was followed in the case of Graduate Assistants.
132. Again, the written test was prescribed for recruitment to the post of Graduate Teacher in G.O.Ms.No.100, School Education Department, dated 27.06.2003. However, in the said Government Order, it is stated that the appointment of Secondary Grade Teachers would be done based on the employment exchange seniority. Paragraph 4 of the order is extracted in this regard:
gj;jp 1 kw;Wk; 2y; Fwpg;gpl;lthW cupa gzptpjpfSf;Fj; jpUj;jk; btspapl;l gpd;du; nkw;Fwpg;gpl;Ls;s Mrpupau; fhypg; gzpapl';fspy; ,ilepiy Mrpupau; gzpapl';fshdJ (clw;fy;tp Mrpupau;. rpwg;ghrpupau; cl;gl) me;je;j khtl;l ntiy tha;g;gf gjpt[ K:g;gpd;go Mz;. bgz; epakd Kiw. ,lxJf;fPL Kiw. Kd;Dupik Kiw nghd;w KiwfSf;Fl;gl;L epug;gg;gLk;. eLepiy. cau;epiy kw;Wk; nky;epiyg;gs;spfspy; cs;s gl;ljhup Mrpupau; (bkhHp Mrpupau; cl;gl) KJfiy Mrpupau; Mfpa gzpapl';fs; (tpjpfspd;go gjtp cau;t[f;fhd gzpapl';fs; nghf) Mrpupau; nju;t[ thupak; K:yk; nghl;oj; nju;t[ K:yk; epug;gg;gLk;/ ,jdpilapy; ,g;gzpapl';fis epug;g[tjw;fhd g{u;th';f Vw;ghLfis nkw;bfhs;syhk;/"
133. Further, it is stated that only one recruitment took place for Graduate Assistant by holding examination as contemplated under G.O.Ms.No.100 and thereafter, from 2006 onwards appointments were made only based on employment exchange seniority for Graduate Assistant also until the enactment of the RTE Act and issuance of the NCTE Notification prescribing TET as one of the minimum qualifications.
134. But in the case of Secondary Grade Teachers, the appointments were made based on district-wise employment exchange seniority from 1996 onwards.
The recruitment based on district-wise seniority was questioned and this Court in Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, 2008 (4) L.L.N. 560 held that the recruitment shall not be confined to seniority in District Employment Exchange as it violates Articles 14, 16(2) and 19(1) of the Constitution. In fact, the aforesaid G.O.Ms.No.447 dated 16.07.1996 was quashed by the Division Bench in the said order. Paragraph 35 of the said judgment in 2008 (4) L.L.N. 560 is extracted hereunder:
"35. In view of the above discussion, in our considered opinion, confining the question of selection to the candidates sponsored by the Employment Exchange of a particular district without considering the willingness, availability and suitability of similar candidates who have been registered in the other district employment exchanges, is clearly violative of fundamental rights and, therefore, cannot be countenanced. The impugned G.O.Ms.No.447, dated 16.07.1996 is liable to be quashed. Accordingly, a direction is issued to consider the question of selection of eligible candidates, even though such candidates' names have been registered in other District Employment Exchanges. For the aforesaid purpose, obviously intimation is required to be given to all the District Employment Exchanges and public advertisement throughout the State is required to be made so that any willing candidate even though registered in a different district can offer his candidature."
135. The said Division Bench judgment was taken before the Apex Court in Special Leave Petitions. Later, the Apex Court passed the interim order dated 20.10.2008 permitting the State Government to make appointment, which has been extracted above, taking into account the fact that the appointments to the post of Secondary Grade Teachers were not made due to continuous litigation. In the meantime, RTE Act was enacted and the NCTE Regulations were notified.
136. The aforesaid narration of facts makes it clear that the appointment of Secondary Grade Teachers / Graduate Assistants (B.Ed.) were made based on seniority alone from 1996 and prior to that the appointment was based on merit, such as written test and interview.
XI. Public Employment - Whether it could be based on employment exchange seniority :
137. At this juncture, it is relevant to take note of the judgment of the Division Bench of this Court in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in (2008) 5 MLJ 1252, wherein, the Division Bench held that in case of recruitment of persons in large numbers to public employment, besides considering the persons sponsored through employment exchange, the State is obliged to issue public paper advertisement and also announce on Radio, Television and Employment news bulletin about the recruitment as per the decision of the Apex Court in Excise Superintendent vs. K.B.N.Visweshwara Rao, reported in 1996 6 SCC 216. That is, the recruitment to public office shall not be confined to candidates sponsored by the employment exchange only, particularly, when the recruitment is in large numbers, as in these cases.
138. The following passage in paragraph 13 of the judgment of the Division Bench in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in (2008) 5 MLJ 1252 is extracted in this regard:
"13. ..........
Subsequently, in the case of the Excise Superintendent vs. K.B.N.Visweshwara Rao, reported in 1996 (6) SCC 216 : JT 1996 (9) SC 638, the question of equality of opportunity in the matter of employment fell for consideration before the Supreme Court, which noticed the earlier decision in the case of N.Hargopal (supra), and the Supreme Court observed as follows:
"6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidates are unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate are deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning Departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate Department or undertaking or establishment, should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news-bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
(emphasis supplied)
139. Further, the Division Bench has laid down the following guidelines in the mater of appointment to public employment in paragraph 20 of its order. It is relevant to extract paragraph 20 of the judgment in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in (2008) 5 MLJ 1252 :
"20. From the discussions as made above, the Government Orders issued from time to time, the Employment Exchanges Act and the decisions as referred to above, we hold as follows:
(i) ......
(ii) An employer is not bound to appoint only persons sponsored by the Employment Exchange. The essence of Section 4 of the Employment Exchanges Act is that the employer has option to call for application through open advertisement published in the newspapers and on merit and selection, may appoint best of the persons including those whose names have not been recommended by the Employment Exchange.
(iii) The employer is only obliged to notify the vacancies.
(iv) It should be mandatory for the requisitioning authority/establishment to intimate the Employment Exchange and the Employment Exchange should sponsor the names of the candidates to the requisitioning Departments for selection strictly in accordance with the seniority and reservation, as per the requisition. In addition, appropriate Department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news-bulletins and then consider the cases of all candidates who have applied. A regular employment under the State cannot be made without advertisement, which may include in some cases inviting applications from the Employment Exchange.
(v) Restricting selection only to the candidates sponsored by the Employment Exchange is not proper and such procedure will not subserve fair play.
(vi) In case the selection is made to a post/vacancy of a District cadre, calling for the names from the concerned local Employment Exchange, it will not ipso facto violate Articles 14 and 16 of the Constitution of India, till it is proved and in appropriate cases, the employer may justify such employment by showing its nexus with the object to achieve.
But in case any post/vacancy is of State level/cadre, the names cannot be called for from one particular District Employment Exchange, which otherwise will violate Articles 14 and 16 of the Constitution of India. In such a case, apart from calling for the names from the Employment Exchanges, the names should be called for by publication in the newspapers having wider circulation and through other sources.
(vii) G.O.Ms.No.18, Labour and Employment (N.2) Department, dated 25.2.2008, issued by the State Government is applicable to all Government Departments, Local Bodies (Urban and Rural), Co-operative Institutions, Public Sector Undertakings, all Government aided Educational Institutions and Government aided Engineering Colleges and Polytechnics, all other private organisations and institutions etc., but the said order is not applicable to the High Court or any of the District Courts or Courts subordinate to the High Court, which are not Government Departments or Local Bodies or Undertakings of the State.
(viii) G.O.Ms.No.18, Labour and Employment (N.2) Department, dated 25.2.2008 to call for the names to fill up the vacancies sponsored by the Employment Exchange in the ratio of 1:5, is not violative of Articles 14 and 16 of the Constitution of India.
(ix) Rule 10-A(a) of the Tamil Nadu State and Subordinate Services Rules, if limited for selection from among the persons recommended by the Employment Exchange, may not violate of Articles 14 and 16 of the Constitution of India, in view of G.O.Ms.No.18, Labour and Employment (N.2) Department, dated 25.2.2008. But in case of large number of employment on regular basis within the State/cadre, it will violate the Supreme Court's observation made in the case of K.B.N.Visweshwara Rao (supra).
So far as G.O.Ms.No.65, Labour and Employment (N.2) Department, dated 30.3.2007 is concerned, as consideration of one name against one vacancy will amount to "no selection" in the eye of law, the said G.O. being violative of Articles 14 and 16 of the Constitution of India, was rightly recalled by the State. No person can claim appointment on the basis of the earlier G.O.Ms.No.65, even if the names were called for prior to 25.2.2008, but selection has not yet been made.
But in the light of the decision of the Supreme Court in the case of K.B.N.Visweshwara Rao (supra), the appropriate Department/Undertaking/ Establishment should call for the names for publication in newspapers having wider circulation, if more number of vacancies are to be filled up at a time.
If the number of vacancies is so less that it is not possible to go for a wide selection process, the names can be called for only from the Employment Exchange at the ratio laid down by the State, not less than 1:5."
140. The aforesaid guidelines make it clear that the appointment to the public employment shall be made on merit and selection and it shall not be merely based on seniority in the employment exchange alone.
141. The Division Bench in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in (2008) 5 MLJ 1252 held in a passage in paragraph 13 that the public employment shall be made only by way of selection based on written examination or interview or some other rationale criteria for judging the inter se merit of candidates who have applied in response to the advertisement made relying on and extracting the following passage from the judgment of the Apex Court in UPSC vs. Girish Jayanti Lal Vaghela, reported in 2006 (2) SCC 482.
"Recently, similar issue relating to employment in consonance with Articles 14 and 16 of the Constitution of India, fell for consideration before the Supreme Court in the case of UPSC vs. Girish Jayanti Lal Vaghela, reported in 2006 (2) SCC 482, wherein, the Supreme Court held as follows:
"12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment or appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."
(emphasis supplied)
142. Further, in paragraph 23, the Division Bench of this Court in Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, reported in 2008 (4) LLN 560 quoted the judgments of the Apex Court that were relied on by the Full Bench of this Court in R.Sivakumari and others V. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam represented by its Secretary and others, 2008 (1) L.L.N. 560 and extracted paragraph 24 of judgment of the Full Bench in 2008 (1) L.L.N. 560 and the same being relevant is extracted hereunder:
"24. Therefore, if the recruitment of about four thousand secondary grade teachers to the Government schools, were to be made in accordance with the law laid down by the Supreme Court, the respondents ought to have followed the following procedure namely -
A)Notify the Employment Exchanges.
B)Issue publications in newspapers having wide circulation, inviting applications.
C)Display the notification in the notice boards of the respective offices or make announcements in the media.
143. In these cases, there are thousands of posts of Secondary Grade Teachers / Graduate Assistants are sought to be filled up contrary to the dictum laid down by the Apex Court in Excise Superintendent vs. K.B.N.Visweshwara Rao, reported in 1996 (6) SCC 216 and UPSC vs. Girish Jayanti Lal Vaghela, reported in 2006 (2) SCC 482, and the Division Bench judgments of this Court in R.Amirthaveni and Another V. District Employment Exchange Officer and Others reported in 2008 (5) MLJ 1252 and Unemployed Secondary Grade Teachers' Welfare Association V. State of Tamil Nadu, reported in 2008 (4) LLN 560.
XII. Quality of education :
144. The selection of teachers based on employment exchange seniority only would cause devastating effect on the quality of education. The recruitment to the post of Secondary Grade Teacher / Graduate Assistant is not to provide employment opportunities to unemployed persons, but it is to get qualified and suitable persons based on merit for the benefit of the children. It is the paramount interest of the children that should weigh in the recruitment of teachers and it cannot be viewed from the angle of the unemployed persons.
145. At this juncture, it is relevant to take note of the paragraph 16 of the order of the learned Single Judge dated 14.12.2012 in W.P.(MD)No.4478 of 2012, in which the relevant portions of the judgment of the Apex Court in Society for Unaided Private Schools of Rajasthan V. Union of India, (2012) 6 SCC 1 were extracted by the learned Single Judge relating to quality of education :
"16. After extracting the statistics, even the dissenting opinion in the aforesaid decision, highlighted the importance of quality education in paragraphs 303 and 304 as follows :-
"303. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education.
304. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the statute is against holding back or detaining any child from Standard I to VIII."
146. It is also relevant to refer to the paragraph 307 of the judgment of the Apex Court in Society for Unaided Private Schools of Rajasthan V. Union of India, (2012) 6 SCC 1, which is extracted hereunder :
"307. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. The provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counterparts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests."
147. It is also relevant to take note of the fact that quality of persons appointed based on employment exchange seniority and certificate verification got exposed when the TET was conducted. When more than 7 lakh persons wrote the TET on 12.07.2012 not even 1% of candidates passed the test and in fact, it was less than 0.50%. In the circumstances, the State was forced to hold supplementary examination on 14.12.2012 therein more than six lakh candidates participated. However, only 2.95% alone passed the test. While upholding G.O.Ms.No.181, learned Single Judge of this Court in the order dated 14.12.2012 in W.P.(MD)4478 of 2012, in paragraphs 13 and 14 extracted the following statistics, which can be usefully extracted hereunder :
"13. About 15 years thereafter, the Government of Tamil Nadu enacted the Tamil Nadu Teacher Education University Act under Act No.33 of 2008 and a University was established. The website of the University discloses that, as on date, there are 685 Teacher Education Colleges in the State of Tamil Nadu with a total permitted annual intake of about 73,000 students. It means that about 70,000 Graduates are turned out of the State of Tamil Nadu with a B.Ed., Degree every year. There were already lakhs and lakhs of persons with degrees in Teacher education waiting on the rolls of the employment exchange. But the quality of such persons got really exposed when the Teacher Eligibility Test was conducted. The following statistics revealed by the Teachers Recruitment Board speak volumes:-
"The Teachers Recruitment Board conducted the Tamil Nadu Teacher Eligibility Test (TNTET-2012) on 12.7.2012 for Paper I and Paper II as per the notification No.4/2012 dated 7.3.2012.
Sl.No. TET Paper No. of Candidates No. of Candidates Pass Appeared Passed Percentage
1. Paper-I 305405 1735 0.57%
2. Paper-II 409121 713 0.17% Total 714526 2448 0.34%
14. Since the pass percentage was low, a Supplementary Examination was conducted for Paper I and Paper II on 14.10.2012. The results of the Supplementary Examination are as follows:-
Sl.No. TET Paper No. of Candidates No. of Candidates Pass
Appeared in Passed in Percentage
TNTET TNTET
Supplementary Supplementary
Examination Examination
1. Paper-I 278725 10397 3.7%
2. Paper-II 364370 8864 2.4%
Total 643095 19261 2.9%"
148. A cursory reading of the proviso to Section 23(2) of the RTE Act along with Rules 17, 18 and 19 of the RTE Rules and Clause 5 of the notification dated 28.10.2010 and the amended notification dated 29.07.2011 makes it clear that the teachers, who are working, at the time of commencement of the RTE Act, in the "school" covered under Section 2(n) of the RTE Act have to acquire such minimum qualifications within a period of five years from the commencement of the Act and the said exemption cannot be claimed by the petitioners who are all not "teachers" at the time of commencement of the RTE Act. Admittedly, these petitioners are not in employment as teachers in the schools, at the time of the commencement of the RTE Act.
149. Hence, as stated above, the submission of the learned Senior Counsel for some of the petitioners and some of the learned counsels that in view of the proviso to Section 23 (2) of the RTE Act, the petitioners shall be appointed based on the certificate verification that took place prior to 29.07.2011, the date of the amended notification of NCTE, subject to the condition that the petitioners shall qualify TET within a period of five years from the date of appointment has no basis.
150. At the risk of repetition, it is reiterated, as held in the earlier paragraphs, that in these cases, senior candidates, who participated in the certificate verification along with the petitioners herein, were selected for the notified vacancies and they were appointed without insisting a pass in TET, but these petitioners were not selected. Those selected / appointed candidates alone come under the exempted category of Clause 5 and 5(a) of NCTE notification dated 23.08.2010 and 29.07.2011. Those appointments are to be termed as "SUCH APPOINTMENT" as used in the NCTE notification. Since even the teachers, who were in service at the time of commencement of the RTE Act, are required to acquire TET within a period of five years, in my view, "SUCH APPOINTEES", who were appointed pursuant to certificate verification, shall also acquire TET within five years from the date of the appointment. The non-selected Secondary Grate Teachers / Graduate Assistants (B.T. Teachers), i.e., persons like the petitioners, cannot seek appointment in the future vacancies based on certificate verification, without a pass in TET.
XIII. Conclusion :
151. Therefore, if the plea of the petitioners herein is accepted, then more than about 20,000 persons could enter without having the minimum qualification of TET as prescribed in RTE Act read with NCTE Regulations. This Court cannot issue such a direction to appoint them contrary to the statutory provisions and the constitutional mandate as held by the Apex Court in C.Rekhi Ray Vs. High Court of Delhi, (2010) 2 SCC 637 in view of the aforesaid reasons.
152. In the result, all these writ petitions fail and the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Chairman, Teachers Recruitment Board, 4th Floor, V.K.Sampath Building, DPI Campus, College Road, Chennai 600 006.
2. The Director of School Education, DIP Campus, College Road, Chennai 600 006