Madras High Court
The Secretary vs R.Vijayalakshmi on 16 March, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.03.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.Nos.404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
W.A.No.404 of 2020:
1.The Secretary,
Department of School Education,
Fort St. George,
Chennai – 600 009.
2.Director of School Education,
DPI Complex,
College Road,
Chennai – 600 006.
3.The Chairman,
Teacher Recruitment Board,
College Road,
Chennai – 600 006. .. Appellants
vs.
R.Vijayalakshmi .. Respondent
etc. batch
__________
Page 1 of 48
http://www.judis.nic.in
W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
For Appellants : Mr.C.Munusamy
in all appeals Spl. G.P. (Edn.)
For Respondent : Mr.R.Shivakumaran
for Mr.P.Sesubalan Raja
in W.A.No.404/2020
Mr.M.Purushothaman
in W.A.Nos.405, 406, 407,
410 of 2020
Mr.P.Ganesan
in W.A.No.408 of 2020
Mr.G.Sankaran
in W.A.No.409 of 2020
Mr.M.Chinnasamy
in W.A.No.412/2020
Mr.P.Ebenezer Paul
in W.A.No.413 of 2020
COMMON JUDGMENT
Hon'ble Chief Justice These batch of appeals arise out of two judgments dated 12.03.2019 and 28.03.2019, whereby the same learned Single Judge has identically pronounced judgments on similar lines calling upon the authorities to verify the medium of instruction and has directed that __________ Page 2 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 the technical qualification of the respondents/petitioners in the Higher Grade Examinations be considered based on their declaration and on the certificate verification done by the competent authorities at the time of the selection process for appointment on the post of Special Teachers. It has further been directed that the same can also be verified and scrutinized by the competent authorities with the Director of Government Examinations for the purpose of extending the benefit of horizontal reservation under the “Persons Studied in Tamil Medium” (PSTM).
2. The challenge raised by the Government is that such benefit of horizontal reservation can be claimed only by evidencing the same through a certificate issued as per the relevant Rules and the terms and conditions of the advertisement for appointment on the post of Special Teachers (Sewing, Music, Drawing and Physical Education) in the School Education Department.
3. The challenge came to be raised only after the provisional select list had been declared and all the respondents/petitioners had undertaken the examinations under the advertisement governed by __________ Page 3 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 the relevant Rules without challenging any of the aforesaid provisions or conditions contained in the advertisement. A mandamus was, therefore, prayed for to direct the appellant to appoint the respondents/petitioners as Special Teachers in the respective subjects on the ground that they have received the entire education in Tamil medium and therefore, they are also entitled to the horizontal reservation of 20% quota fixed under the PSTM category. The select list was prayed to be redrawn accordingly.
4. The main contention raised by learned Special Government Pleader (Education) in all these appeals is to the effect that the notification/advertisement calling for Online applications categorically provided that persons claiming benefit under any of the reservations will have to compulsorily produce the relevant certificate at the time of Certificate Verification process. It is urged that without any such certificate evidencing that the concerned candidate had obtained instruction and education in Tamil medium, the benefit of 20% horizontal reservation under PSTM category would not be available. In short, in the absence of verification and evidence to support the same, the reservation could not have been claimed as a matter of right and __________ Page 4 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 failure to produce any such certificate would disentitle a candidate from claiming any benefit of weightage on that count.
5. It is the contention of learned Special Government Pleader that none of the respondents/petitioners were able to produce the relevant certificate at the time of certificate verification and any attempt made thereafter or any certificate obtained thereafter or any explanation being given in the absence of a certificate cannot be an excuse on the basis whereof a right of preference can be claimed and hence, the direction issued by the learned Single Judge is clearly impermissible, as no mandamus can be issued to the authorities unless there is an obligation in law to comply with any provision.
6. It is urged that the direction of the learned Single Judge is contrary to law viz., the provisions for horizontal reservation under PSTM category and directly contrary to the terms and conditions of the advertisement/notification, which has not even been discussed by the learned Single Judge.
__________ Page 5 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
7. The second argument of the learned counsel for the State is that a learned Single Judge at the Madurai Bench in W.P.(MD) No.23061 of 2018 had rejected the said argument and dismissed the writ petition on 04.12.2018, which fact had been clearly pleaded before the learned Single Judge, who has ignored the same and even if the learned Single Judge was of a different opinion, then, the only course available was to refer the matter to a Larger Bench and not to take a view contrary to the said decision.
8. An additional argument was advanced at the appellate stage, in particular, relying on the judgment of the Full Bench in the case of R.Boominathan v. The Government of Tamil Nadu and others, W.P.No.27127 of 2018 and other connected petitions, the verdict whereof was delivered on 27.09.2019, after the judgments impugned herein, to contend that the relevant Rules requiring a production of a certificate issued by the competent authority in the prescribed format was sine qua non to obtain the benefit horizontal reservation. Learned Special Government Pleader therefore contends that even the Full Bench decision now rendered after the impugned judgments clearly __________ Page 6 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 supports the cause of the appellant and therefore, the impugned judgments deserve to be set aside.
9. Learned counsel for the State has re-emphasized that even if a certificate was produced, which was a certificate obtained after the cut off date of the last date of application form and was a certificate, the verification whereof was not certified and was otherwise presented after the date, the same could not be the basis for re-determining the entire result. He, therefore, submits that all the appeals deserve to be allowed and the writ petitions deserve to be dismissed.
10. We have heard Shri M.Purushothaman; Shri M.Chinnasamy; Shri R.Shivakumaran; Shri P.Ganesan; Shri G.Sankaran and Shri P.Ebenezer Paul, learned counsel for the respondents/petitioners.
11. There are three sets of arguments on behalf of the respondents/petitioners. One who could not produce the certificates and have contended that it was neither required as per the Rules nor even otherwise it could be made available and thirdly, the Director of Examinations had himself informed that it was not possible to issue __________ Page 7 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 such certificates. In such circumstances, the direction given by the learned Single Judge is fully justified and the presumptions drawn by him are based on a pragmatic approach. Hence, the discretion exercised by the learned Single Judge should not be interfered with.
12. The second set of argument in a single case is that a certificate has been received from the Director of Examinations on 22.10.2018, which demonstrated and established as well as certified that the candidate relying on the same viz., R.Vijayalakshmi in W.P.No.32829 of 2018 was entitled for such reservation. In the wake of this peculiar fact, the writ petition of the said petitioner has been rightly allowed.
13. The third set of argument is on behalf of another single petitioner viz., S.Southri in W.P.No.29648 of 2018 to contend that a certificate had been obtained and was produced on 16.08.2018, which was three days after the date of certificate verification and therefore, such certificate ought to be taken into account, for which reliance was placed on the Apex Court judgment in the case of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and __________ Page 8 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Ors., reported in (2016) 4 SCC 754, to urge that such certificate can be accepted and the candidature should not be rejected.
14. Before proceeding to analyze the process of selection from the advertisement up to its conclusion and the arguments advanced, it would be appropriate to set out the provisions of 20% horizontal reservation for preferential appointment under the PSTM category and the law relating thereto.
15. An Ordinance No.3 of 2010 was issued for providing preferential appointment in the State Services for those who had obtained educational qualifications prescribed against the post meant for direct recruitment through Tamil medium of instruction. Under this Ordinance, G.O.Ms.No.145 was issued on 30.09.2010 describing the same as the “Tamil Nadu Appointment on preferential basis in the Services under the State of Persons Studied in Tamil Medium Rules, 2010”. The extent of reservation on preferential basis and the manner in which it has to be implemented was provided for in Clause 3, which is extracted here under:
“3.Manner of selection for appointment – Twenty __________ Page 9 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 percent of all vacancies in the appointment in the services under the State which are to be filled through direct recruitment shall be set apart on preferential basis to persons studied in Tamil medium as illustrated below:-
ILLUSTRATION Out of 200 seats, 40 seats shall be set apart on preferential basis to persons studied in Tamil medium, in their respective category, in the following manner:-
General Turn 19 31 48 65 81 100 115 131
148 165 181 200
Backward Classes 18 38 58 74 94 114 134 149
(Other than Backward
170 190 199
Classes Muslims)
Most Backward 23 46 73 96 123 146 173 196
Classes/De-notified
Communities
Scheduled Castes 26 62 92 126 162 192
Backward Classes 188
Muslims
Scheduled Caste 166
Arunthathiars
Scheduled Tribes 150
16. The aforesaid Ordinance is now an Act viz., Act No.40 of 2010. The said Act categorically states that such reservation is being __________ Page 10 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 provided as candidates, who have studied in Tamil medium, have very little chances of getting selected in the employment of the Central or State Governments or any Private Sectors and therefore, preference was required to be given to such candidates in the State Government Services. The Act which contains 10 Sections is re-produced herein under:
“1. (1) This Act may be called the Tamil Nadu Appointment on preferential basis in the Services under the State of Persons Studied in Tamil Medium Act, 2010.
(2) It shall be deemed to have come into force on 7th day of September 2010.
2. In this Act, unless the context otherwise requires,—
(a) “direct recruitment” means first appointment of a person to any service under the State in accordance with the rules or regulations or orders in force;
(b) “Government” means the State Government;
(c) “persons studied in other medium” means persons who have obtained the educational qualification or qualifications prescribed for direct recruitment in the rules or regulations or orders applicable to any appointment in the services __________ Page 11 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 under the State through any medium of instruction other than Tamil;
(d) “persons studied in Tamil medium” means persons who have obtained the educational qualification or qualifications prescribed for direct recruitment in the rules or regulations or orders applicable to any appointment in the services under the State through Tamil medium of instruction;
(e) “preferential vacancies” means such vacancies available for persons studied in Tamil medium under sub-section (1) of section 3;
(f) “services under the State” includes the services under-
(i) the Government;
(ii) the Legislature of the State;
(iii) any local authority;
(iv) any Corporation or Company owned or controlled by the Government; and
(v) any other authority in respect of which the State Legislature has power to make laws.
3. (1) Notwithstanding anything contained in any law for the time being in force and subject to section 5, twenty per cent of all vacancies in appointment in the services under the State which are to be filled through __________ Page 12 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 direct recruitment shall be set apart on preferential basis to persons studied in Tamil medium.
(2) Selection for appointment under sub-section (1) shall be made in such manner as may be prescribed.
(3) Nothing contained in sub-section (1) shall apply in the case of appointment to the posts in the services under the State for which the educational qualification prescribed in the rules or regulations or orders applicable to the post is a degree or diploma or any academic distinction in a language.
4. Persons studied in Tamil medium shall also be entitled to compete for the vacancies, other than preferential vacancies in appointment in the services under the State, along with persons studied in other medium.
5. Preferential basis appointments to persons studied in Tamil medium under section 3 shall be made following the reservation as per law in force.
6. Notwithstanding anything contained in section 3, where adequate number of qualified and suitable persons studied in Tamil medium are not available for __________ Page 13 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 appointment in the preferential vacancies, such unfilled vacancies shall be filled up with persons studied in other mediums within the respective category.
7. The Government may, by general or special order, for just and equitable reasons, exempt any appointment or post in the services under the State from the provisions of this Act.
8. (1) The Government may make rules for carrying out the purposes of this Act.
(2) All rules made under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on a particular day shall come into force on the day on which they are so published.
(3) Every rule made or notification or order issued under this Act shall, as soon as possible, after it is made or issued, be placed on the Table of the Legislative Assembly, and if, before the expiry of the session in which it is so placed or the next session, the Assembly makes any modification in any such rule or notification or order, or the Assembly decides that the rule or notification or order should not be made or issued, the rule or notification or order shall thereafter have effect __________ Page 14 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification or order.
9. If any difficulty arises in giving effect to the provisions of this Act, the Government may, by an order, published in the Tamil Nadu Government Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to them to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of two years from the date of the publication of this Act in the Tamil Nadu Government Gazette.
10. (1) The Tamil Nadu Appointment on preferential basis in the Services under the State of Persons Studied in Tamil Medium Ordinance, 2010 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act.” __________ Page 15 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
17. A perusal of Section 3, which is in pari materia with the provision of the Ordinance extracted herein above confirms the said position.
18. Section 2(d) is relevant for the purpose of understanding the phrase “Tamil Medium”. The said Section categorically defines persons studied in Tamil medium means persons who have obtained the educational qualification or qualifications prescribed for direct recruitment through Tamil medium of instruction. The Section does not split or exempt any qualification, including qualification of any technical examination of Higher Grade which is the issue involved in the present case. The said Section covers all qualifications and clearly lays down that the educational qualification or qualifications prescribed have to be obtained through Tamil medium of instruction.
19. What is further required to be understood in the aforesaid background is that in order to certify at the time of verification of the selection and appointment, in the present case the possession of a certificate to evidence the same is necessary, which should be in the __________ Page 16 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 manner prescribed under the notification. Such an issue was raised and though not answered elaborately, a learned Single Judge did dismiss the writ petition in the case of V.Jeyanthi v. The Government of Tamil Nadu and others at the Madurai Bench in W.P.No.23061 of 2018 on 04.12.2018.
20. Nonetheless, this issue came up before this Court for consideration as to whether a person having studied a course can be treated to have studied in Tamil medium in the background of Law Degrees being awarded by various Institutions throughout the State in a matter arising out of a claim by a candidate who was appearing in the Civil Judges examination conducted by the Tamil Nadu Public Service Commission and who claimed horizontal reservation of 20% on the ground that he had undertaken his Law course in Tamil medium. The Full Bench after having analyzed the provisions vide its judgment dated 27.09.2019 in the case of R.Boominathan v. Government of Tamil Nadu and others (supra) on the facts of that case came to the conclusion that the Law courses in Tamil were being pursued, but intermittently in some selected Colleges depending upon the number of takers. The Court went on to hold that it is therefore evident that __________ Page 17 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 the course was not being imparted in Tamil, but was rather being pursued by the students and then, further held that a certificate issued by the competent authority certifying that the Institution was imparting courses in Tamil medium of instruction was compulsory. Paragraphs 29 and 30 of the Full Bench judgment are extracted herein under:
“29. Therefore, it is evident that Law degree is not imparted, rather pursued by the students in Tamil in the State continuously, but intermittently, whenever offered in some selected colleges depending upon the number of takers. However, the State Government has earmarked 20% of all vacancies in appointment in the services under the State, which are to be filled through direct recruitment, as preferential appointment, but only very few Colleges in the State are imparting education with Tamil as the medium of instruction. We are also not aware as to how many candidates have so far availed this concession in the State.
30. For the purpose of recognising a candidate, within the realm of selection to employment in government services, under PSTM category, a candidate should have studied in Tamil as medium of instruction.
Therefore, in order to avail the benefit of reservation __________ Page 18 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 earmarked under PSTM category, a candidate has to furnish a certificate to the effect that he or she studied in Tamil as medium of instruction. Such certificate will be issued by the Head of the Institution/Registrar or Principal of the College, as has been contemplated under G.O. (Ms) No.145, Personnel and Administrative Reforms Department dated 30.09.2010, in the prescribed format, certifying that he or she studied the course in Tamil by indicating the duration (academic year) during which the candidate pursued the course. It is this certificate which will form the basis for recognising a candidate for having studied in Tamil medium of instruction so as to enable him or her to get the benefit of reservation under PSTM category. It is needless to mention that merely because a candidate writes the academic examination or competitive examination in Tamil, it will not recognise such candidate to get the reservation under PSTM category. The requirement is that a Certificate issued by the Head of the Institution/Registrar or Principal of the college, in the prescribed format, certifying that he was imparted with the course in Tamil as medium of instruction, has to be furnished, so as to enable a person to get the benefits of reservation under PSTM category. In the absence of such a certificate, a candidate cannot be regarded or recognised as a __________ Page 19 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 preferential candidate, who can avail the benefit of reservation under PSTM category. In other words, if such a certificate is not produced, he or she cannot be recognised as a candidate, who can be extended the benefit of reservation under PSTM category. Therefore, we hold that compliance of the requirements contemplated under G.O. (Ms) No.145 dated 30.09.2010 to furnish a certificate issued by the Head of the institution/Principal or Registrar of the College, in the prescribed format, is a mandatory requirement to get the benefit of concession and/or reservation earmarked by the State under PSTM category. We therefore answer the reference made to us as follows:-
(i) A person who studied the Course in Tamil or had written the University or Competitive examination in Tamil will not ipso facto recognise or qualify him or her to claim reservation under Persons Studied in Tamil Medium (PSTM) category
(ii) Even though a person opted for Tamil as Medium of Instructions in the Colleges or studied the Courses in Tamil or written examinations in Tamil, in the absence of a certificate issued by the Registrar/Principal or Head of the Institution in the prescribed format stating that he or she pursued the education in Tamil as Medium of Instruction __________ Page 20 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 throughout, he or she cannot be placed on par with PSTM Candidates for the purpose of claiming reservation under the preference quota
(iii) Tamil, as Medium of Instruction, is not in vogue in certain colleges, or rather to say, Law Degrees are not imparted in Tamil as a Medium of Instructions. Only in few colleges, Law Degrees are imparted in Tamil as Medium of Instructions and in some other colleges, it is being imparted intermittently. Only if a student pursued the entire Course in Tamil and obtained a Certificate to that effect from the head of the institution/Registrar or Principal of the College, will he or she be declared as the one who is eligible to claim preference in public employment under PSTM category. As on date, Law Colleges at Chennai, Madurai, Coimbatore, Tiruchirapalli, Tirunelveli and Chengalpattu are imparting the courses in Tamil as medium of instruction, as could be evident from G.O. Ms. No.33, Law (LS) Department dated
31.01.2017 as well as the counter affidavit filed by Director of Legal Studies, Chennai.”
21. Thus, a combined reading of the provision of Section 2(d) of the Act 40 of 2010 read with the ratio of the Full Bench judgment, it is __________ Page 21 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 evident that a certification of the medium in which a particular course is being imparted and has been pursued by the candidate should be Tamil medium and therefore, the question has to be examined accordingly. The imparting of education in Tamil medium, coupled with it being pursued by the candidate and then being evidenced by a certificate issued by the competent authority, form the three principle ingredients of the legal proposition that has to be answered on the arguments advanced by learned counsel for the parties.
22. We are fortified in the aforesaid view as would be evident from an analysis of the advertisement in respect of the posts of Special Teachers for appointment which is the subject matter of this dispute.
23. We may also point out that a clarification was issued by the Personnel and Administrative Reforms Department on 11.01.2011, which is to the following effect:
“Personnel and Administrative Reforms (S) Department, Secretariat, Chennai – 600 009.
Letter R.C.No.99/S1/2011-1, dated 11.01.2011 __________ Page 22 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 From Thiru.K.N.Venkatramanan, I.a.S., Secretary to Government.
To
1.Secretary, Tamil Nadu Public Service Commission, Chennnai-6
2.Chairman, Teachers Recruitment Board, Chennai-6.
3.Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai-2.
4.Chairman, Employment and Training Department, Guindy, Chennai-32.
Sir, Sub : Public Services – Act to provide Priority in Public Services to Persons studied in Tamil Medium – certain clarifications – issued – reg.
Ref : Tamil Nadu Government Act 40/2010 ......
In the Ordinance dated 05.09.2020 promulgamated to allow preference in Public Services for those who studied their Education in Tamil Medium to the extend of Twenty percent in the qualification prescribed for Direct Recruitment. To implement the provisions of the said Act, as per the powers delegated under Section (8) of the said Act, Rules were framed in G.O.Ms.No.145, (Personnel and Administrative Reforms) Department, dated 30.09.2010. The above ordinance was approved by the Hon'ble Legislative Assembly and enacted as Act (Act 40/2010).
2. Since some news item was published in the Print Media that many legal hurdles in implementing this said Act, are faced by the Recruiting Agencies and they seek clarification from Government in this regard. The following clarifications are issued based on the __________ Page 23 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 details published in Print Media.
(i) As per the act and Subsequent amendments issued hitherto a person studied in Tamil Medium implies that acquiring qualification prescribed for the posts in Public appointment Direct Recruitment through Tamil Medium. As per the above for a particular post Eight standard is prescribed as a Minimum qualification, preference shall be accorded to persons who studied Eight standard in Tamil Medium. Likewise for the post Undergraduate degree is prescribed as Minimum qualification preference shall be given to those completed, undergraduate degree through Tamil Medium. In the same way preference shall be given to those persons who studied Post Graduate degree in Tamil Medium for those post Post Graduate is prescribed as Minimum qualification.
(ii) Further in the event of Medium of Instruction could not be identified from records, the candidates has to furnish a certificate of having studied in Tamil Medium issued by the Head of Institution. Now Writ Petition has been filed before Hon'ble High Court and stay order has been granted. The above explanation are issued subject to the outcome of Interim Order pending before the Hon'ble High Court. The above instructions may be followed after stay get vacated in this matter.
Yours faithfully, Sd/- xxxx For Secretary to Government.” __________ Page 24 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
24. This was further followed by some clarification on 30.04.2014 through G.O.Ms.No.40, but a copy thereof not being available, we are unable to indicate the details thereof.
25. The advertisement for selection on the posts in question vide notification No.5 of 2017 was issued on 26.07.2017. The same describes the posts as Special Teachers (Physical Education, Drawing, Music, Sewing) in the cadre of Tamil Nadu Educational Subordinate Service. This notification was issued by the Teachers Recruitment Board. Clause 3(b) recites horizontal reservation and Sub-Clause (iv) with which the present case is concerned is extracted herein under:
“3. Reservations:
(a) and (b) .......
(i) to (iii) .......
(iv) Reservation for Persons Studied in Tamil Medium (PSTM): For the direct recruitment of Special Teachers 20% horizontal reservation on preferential basis for persons who studied their prescribed qualifications in Tamil Medium will be followed as per existing Government Orders. This reservation is subject to the __________ Page 25 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 availability of suitable eligible candidates. In the event of non-availability of such candidates the posts reserved for PSTM candidates will be filled by General candidates.”
26. The educational qualifications are prescribed in Clause 4(b). The technical and general qualifications are separately described for all the posts and as an illustration - for Drawing teacher, the technical qualification prescribed includes a Technical Examination in Higher Grade in Free Hand Outline and Model Drawing apart from other equivalence is provided therein. We are taking this as an illustration and the qualifications of the other related course include specific technical qualifications. The general qualification in the case of Physical Education teacher is SSLC/HSC, whereas the general educational qualification for the other three posts is only SSLC. Further, Clause 6 requires that an application should be through Online mode only and evidence for claims should be submitted by the candidates at the time of certificate verification. Clause 6 is extracted herein under:
“6. Procedure to apply:
a) Candidates should apply only through online mode __________ Page 26 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 in the TRB website www.trb.tn.nic.in using the link trbonlineexams.in/spl/
b) Evidence for claims made by the candidates while applying in online should be submitted by the candidates at the time of Certificate Verification, if called for.”
27. The selection procedure comprises of two parts, viz., (1) written examination and (2) awarding of weightage marks during Certificate Verification. Clause 8(a) and (b) are extracted herein under:
8. Selection Procedure:
The Selection will be made in two successive stages viz.,
a) Written examination
b) Awarding weightage marks during Certificate Verification.
28. A certificate verification has to be carried out as above and the detail of the procedure of certificate verification is contained in Clause 9, which is extracted herein:
__________ Page 27 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 “9. The following certificates obtained prior to the cut –off date (18.08.2017- last date for the submission of filled-in online application) have to be produced at the time of Certificate Verification, if called for:
a). Original Certificates and Mark statements pertaining to the following Educational qualifications.
i. 10th / SSLC ii. H.S.C. or its equivalent iii. Technical qualification Certificates ( as mentioned in the paragraph No.4 Qualification) iv. Employment Registration Card (Registered full qualification and renewed till date)
b) Community Certificate: Community Certificate should be obtained from the b e l o w mentioned authorities of Government of Tamilnadu for candidates claiming Communal reservation.
i) ST - Revenue Divisional Officer (if the certificate is issued after 11.11.1989)
ii) SC/SCA - Tahsildar of native taluk of the candidate.
iii) BC / MBC / DNC - Headquarters Deputy Tahsildar or Special Deputy Tahsildar.
Note:
i. Community Certificate of married women issued in __________ Page 28 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 father’s name (Not in Husband’s Name) alone shall be accepted.
ii. Community certificates issued by other State and Union Territory will not be considered against vacancies reserved for 69% communal reservation. They will be considered only for Open Category.
c) Tamil Medium Study Certificate: Candidate who claims reservation under PSTM category has to produce Tamil Medium Study Certificate in the prescribed format (Annexure – II)
d) Disability Certificate (If applicable): A candidate who wants to avail the benefit of reservation for PWD, as per G.O.Ms.No.68 School education SE3(1), Department, dated 17.04.2017 would have to submit an Identity Card and Passbook with Disability Certificate issued by the Government of TamilNadu.
Candidates who are not personally present for the Certificate Verification on the prescribed date shall not be considered for further selection process even if they have secured the qualifying marks for selection.
Awarding Weightage Marks :
Weightage marks as detailed below will be awarded after Certificate Verification for the eligible short-listed candidates.
__________ Page 29 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 S.No. Details Total years of Marks Employment Registration 1 Employment Upto on year 0 Registration after acquiring full qualification with upto date renewal 1 to 3 years 1 3 to 5 years 2 5 to 10 years 3 Above 10 years 5
29. What is noticeable in Clause 9 is that the certificate has to be obtained prior to the cut off date dated 18.08.2017 and has to be produced at the time of certificate verification. In the instant case, the date of certificate verification was 13.08.2018. Sub-clause (c) of Clause 9 specifically provides that candidates seeking reservation under PSTM category have to produce the certificate of Tamil Medium Study in the prescribed format of Annexure-II. Annexure-II is extracted herein under:
“Annexure II Tamil Medium: Persons Studied in Tamil Medium (PSTM) have to produce evidence, such as Transfer Certificate, Provisional Certificate / Degree Certificate / mark sheets received from the University or from the __________ Page 30 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Institution, with a recording that he / she studied the prescribed educational Qualification in Tamil Medium. If no evidence for ‘Persons studied in Tamil Medium’ is found in the above certificates, then a certificate from the Head of the Institution as given below must be furnished:-
PSTM Certificate(Model Format) (To be issued only by the Head of Institution/ Registrar /Principal) This is to certify that Thiru/Tmt/Selvi. ……….……………..… ………….... has studied ………..………………………….. i n … … … … … . subject during the years …………….. to …..………. in Tamil Medium. This certificate is issued after verifying the course content / Statement of Marks / Transfer Certificate.
Registrar/Principal/Head of the Institution”
30. In the Clause of General Information viz., Clause 11, the instructions in relation to the present dispute are important. Instruction No.11(b), (c) and (h) are extracted herein under:
“11. General Information:
(a) .....
(b) Evidence of claims made in the online application __________ Page 31 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 should be submitted in time at the time of Certificate Verification, if called for. Any subsequent claim made thereafter on submission of online application will not be entertained at any cost.
(c) Incomplete applications and applications containing false claims or incorrect particulars relating to category of reservation, basic qualifications, communal category and other eligibility criteria will be liable for rejection.
(d) to (g) ......
(h) In the matter of recruitment, the decision of the Teachers Recruitment Board is final. Any representation for non- selection will not be entertained at any cost.”
31. None of the writ petitioners have been able to produce any such certificate or set up any claim of the existence of such certificate either at the time of moving any application or even at the time of certificate verification, except the two writ petitioners, one of whom obtained a certificate on 22.10.2018, which is also not a proper certificate about which we shall discuss hereinafter and the other one viz., S.Southri, who claims to have produced a certificate after the __________ Page 32 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 date of certificate verification and which is not a certificate having been obtained prior to the last date of application as provided for in Clause 9 of the advertisement.
32. There is one argument which has been advanced on behalf of the respondents/petitioners and deserves to be answered viz., that the Online application form does not require the mentioning of the medium of instruction in respect of the technical qualification. The relevant extract of the Online form is re-produced herein under:
Name of Exam Board/University Medium of Month & Year of Instruction Passing SSLC State Board Tamil 10 / 1998 HSC / Equivalent State Board Tamil 03 / 2001 Technical Qualification Government Technical Examination (Higher Grade) in free hand outline and Model Drawing Do you have Technical Yes Teachers Certificate?
__________ Page 33 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
33. Factually, the said argument raised on behalf of the respondents/petitioners that there is no Column for mentioning the medium of instruction separately is correct as compared to the requirement in respect of SSLC and HSC State Board Examinations. This, however, in our opinion, cannot be presumed to be not a requirement at all to produce the certificate in respect of the medium of instruction of the technical qualification. Accepting the argument of the respondents/petitioners would be negating the very purpose of Section 2(d) of the Act 40 of 2010 as also the 2010 PSTM Rules that were notified earlier and would be making the certificate verification Clause 8(b), Clause 9 and Annexure-II to the notification absolutely redundant. This could not be the purpose or intent of the format in the Online application form and therefore, this argument has to be rejected.
34. We next come to the contention raised on behalf of the appellant that a learned Single Judge at the Madurai Bench had dismissed the writ petition and which fact was brought to the learned Single Judge, yet, without mentioning the same and without recording that he has a different opinion, instead of referring it to a Larger __________ Page 34 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Bench, has chosen to allow the writ petitions. We accept this argument on behalf of the appellant, inasmuch as the learned Single Judge has failed to notice the aforesaid judgment even though it was on record of the counter-affidavit and secondly, judicial discipline did demand that if the same issue had been raised and a learned Single Judge had dismissed the writ petition, then unless it fell within the per incuriam rule or otherwise had been overruled, the same ought to have been a matter of reference instead of proceeding to allow the writ petitions that too even without noticing the said judgment.
35. The third argument of learned counsel for the State also deserves acceptance which is based on the ratio of the Full Bench decision extracted herein above. The Full Bench clearly rules that what has to be ascertained is as to whether the Institution is imparting the particular course in Tamil medium or not and for that the requirement of a certificate is sine qua non. The Full Bench even though having delivered later on, clearly holds to the contrary as held by the learned Single Judge, who has not delved into the issue. For this reason also, the impugned judgments deserve reversal. __________ Page 35 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020
36. There is an another argument on behalf of the appellant that the respondents/petitioners could not have turned around after having appeared in the examination and acquiesced to the procedure prescribed under the notification. To this, the answer of learned counsel for the respondents/petitioners is that there cannot be a medium of instruction in respect of the Higher Grade technical qualification of Sewing, Music, Drawing and Physical Education. We cannot accept this argument of the respondents/petitioners, inasmuch as no educational course can be normally imparted without a medium of instruction. Even the Deaf and Dumb schools have a medium of visual reading and lip movement and the school for the Blind have a Braille medium. The subjects of Special Teachers are not only practical, but also contain some part of theory. The argument of the respondents/petitioners that there is no medium at all to study the subjects is simply preposterous. Whether it is Drawing or whether it is Sewing or Music or Physical Education, the course has to be imparted even if orally, through an instruction, which has to have a medium. Thus, the argument that there is no medium as urged by the respondents/petitioners has to be rejected outright. A script has to be studied and translated either by signs or by any other medium or by __________ Page 36 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 any other linguistic medium. We can only advise the writ petitioners and the learned counsel to read an authority on the subject viz., “The Loom of Language” by Frederic Bodmer.
37. We are also of the considered opinion that all the writ petitioners with open eyes had applied Online against the notification, which has set out the requirement of certificates as indicated above in detail. Annexure-II read with Claus 9 of the notification, therefore, was well known to the respondents/petitioners and they did not challenge the same. Learned counsel for the appellant is, therefore, right in his submission that this excuse cannot be set up to claim a right which is otherwise not available and also does not give rise to any legitimate expectation.
38. We may add further that even though they may have passed the written examination, a mere selection does not give a right of appointment unless all the conditions requiring the recruitment are fulfilled. If the Courts grant such relaxation dehors the terms and conditions, the same would be violative of Articles 14 and 16 of the Constitution of India, inasmuch as this is not a matter of __________ Page 37 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 compassionate or sympathetic appointment. The appointment to public employment are subject to Articles 14 and 16 of the Constitution of India. If such concessions are granted by the Courts, this would definitely discriminate those who never had an opportunity to apply or even stake such a claim which has been extended by the learned Single Judge to the respondents/petitioners.
39. The contention of two of the petitioners viz., R.Vijayalakshmi may again be mentioned for some clarity. R.Vijayalakshmi has produced the certificate dated 22.10.2018. The same was in Tamil and with the aid of learned counsel for the respondents/petitioners the same was translated, which does not contain the name of the Institution or School from which the technical qualification is stated to have been acquired and certified. The said certificate therefore is of no value. It has been stated in the affidavit filed in support of the petition by R.Vijayalakshmi that unfortunately the Institute from where the said technical qualification had been acquired had been closed subsequently. There is no evidence to substantiate either the medium of instruction of the said Institute nor is there any other evidence so as to draw inference of the validity of the certification by the Director of __________ Page 38 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Examinations. For this, another argument has been advanced on her behalf taking aid of the Right to Information communication issued on 27.02.2020 and again on 03.03.2020, the same are extracted herein under:
“RIGHT TO INFORMATION ACT – 2005 From To Tmt.K.Rajalskshmi V.Amutha Deputy Director i/c 40,Tholkappiar Street, Public Information Officer, Senthamil Nagar Directorate of Government Kattankulathur, Examinations, Chengalpattu Dt. - 603 203. Chennai – 600 006.
R.C.No.100190/D/2020 Date : .02.2020
Sir/Madam,
Sub : Directorate of Government Examinations – Chennai-6 Right to Information Act – 2005 – V.Amutha – coaching institute – recognized/approved – Reg. Ref : Letter received from the petitioner V.Amutha this office on dt. 07.02.2020, under RTI Act 2005.
Sl. No. Question Answer
1 Is there any free hand Coaching institute is not
outline and model drawing Recognized/Approved or
teaching or coaching certified by this Department
institute and this is not related to this
Recognized/Approved or Department.
certified by Director of
Government Examinations
(Technical Examination)
2 If yes. give the list of
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W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Sl. No. Question Answer approved / recognized-
certified institutes giving coaching or teaching free hand outline and model drawing Deputy Directorate Public Information Officer RIGHT TO INFORMATION ACT – 2005 From To Tmt.K.Rajalskshmi K.Kuppan Deputy Director i/c S/o.Krishnan, Public Information Officer, 260A, Kulathumedu Street, Directorate of Government Periyamittu Village & Post, Examinations, Katpadi Taluk, Chennai – 600 006. Vellore Dist. - 632 516.
R.C.No.100190/D/2020 Date : .02.2020
Sir/Madam,
Sub : Directorate of Government Examinations – Chennai-6 Right to Information Act – 2005 – V.Amutha – coaching institute – recognized/approved – Reg.
Ref : Letter received from the petitioner V.Amutha this office on dt. 07.02.2020, under RTI Act 2005.
Sl. No. Question Answer
1 Is there any free hand Coaching institute is not
__________
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W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 Sl. No. Question Answer outline and model Recognized/Approved or drawing teaching or certified by this Department coaching institute and this is not related to this Recognized/Approved or Department. certified by Director of Government Examinations (Technical Examination) 2 If yes. give the list of approved / recognized-
certified institutes giving coaching or teaching free hand outline and model drawing Deputy Directorate Public Information Officer”
40. It is urged that there is an indication in the answer that the Institute is not approved or certified by the Director of Examinations. The answer given to the question raised also indicates that it does not relate to the said Department. Learned counsel contends that such an evasive reply clearly indicates that it is incorrect information tendered and several Institutes do exist. What we find is that the question for which the answer has been sought was very carefully worded calling upon the information about any such Coaching Institute or Teacher having been certified or approved by the Department in Tamil Nadu. __________ Page 41 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 This does not in any way establish the claim of the said petitioner. The said petitioner had deliberately did not ask any question naming the Institute from where such qualification had been obtained. In the affidavit in paragraph 6, it has been stated that the Institution where she had studied the certified course happens to be a Community Welfare Organisation. This vagueness of assertion without any specifics and the name of the Institute itself indicates that recourse has been taken to vague averments that leads to no information at all. Not only vagueness, but the manner in which the drafting has been carried out ingeniously neither inspires confidence nor can it be believed in the manner in which it has been stated. The case of R.Vijayalakshmi, therefore, does not stand on any better footing as compared to the other petitioners and also deserves rejection.
41. Coming to the other candidate who has asserted that a certificate was obtained and produced on 16.08.2018 viz., S.Southri., as already stated above, the alleged certificate was not produced admittedly on the date of certificate verification. Secondly, the certificate is not dated prior to the last date of the submission of the application form. No such averment or fact has been asserted to __________ Page 42 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 verify the same. The third issue urged by learned counsel for the petitioner is that the certificate even tendered after the last date but before the interview has been accepted by the Apex Court in the case of Ram Kumar Gijroya (supra).
42. In the instant case, there is no interview and therefore, the said decision will not apply. The said certificate has to be produced for giving weightage on the date of certificate verification. This is the last stage where marks are awarded and therefore, any certificate being obtained thereafter would violate Articles 14 and 16 of the Constitution of India, as all certificates have to be taken up simultaneously as on the date fixed and the manner prescribed. Any subsequent insertion of document would violate the equality Clause and therefore, the same cannot be permitted and to this extent, the facts of the present case are distinguishable. Hence, the ratio of the Apex Court would not apply.
43. There is yet another issue. The case before the Apex Court was one of vertical reservation and not of preferential appointment. Secondly, in the instant case, the instructions contained in the __________ Page 43 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 notification categorically provided about the date of certificate verification. These conditions were never challenged nor questioned. It is after the written examination results have been declared and the provisional selection list has been published that the respondents/petitioners have turned around and come up to question the entire process. They cannot be permitted to do so for all the reasons stated above. This argument also therefore on behalf of the respondent/petitioner S.Southri has to be rejected.
44. Now coming to the impugned judgments, what we find is that the learned Single Judge has proceeded on the strength of a pragmatic approach and on the basis of assumption drawn in paragraphs 8 to 10 of the impugned judgment. In our opinion, hypothetical calculations without any facts or figures, and on mere presumptions that calling upon the candidates to obtain certificates would generate some corrupt practice, cannot be a ground to write off the rules, the law laid down in this regard and the arguments based on facts that were before the learned Single Judge. We find this approach of the learned Single Judge to be non-judicious and pragmatism cannot take over legalism. We should remember whatever is legal is just, but __________ Page 44 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 while doing justice, we cannot ignore the law particularly in service jurisprudence where it is governed by a set of Rules. As observed above, any deviation from the Rule would violate Articles 14 and 16 of the Constitution of India. In such circumstances, the approach of the learned Single Judge to carve out a pragmatic approach and then to issue directions on the ground that the authorities are bound to verify the same does not appear to be correct. The certification is an evidence of the fact that the concerned candidate has acquired the qualification in Tamil medium instruction and it is then only that a reservation can be claimed under the Act and the provisions aforesaid. The impugned judgments, therefore, have not taken into consideration the issues advanced and the answer is based on surmises which cannot be supported either in fact or in law. The relevant provisions as reproduced herein above were not even set out or discussed in the impugned judgments.
45. In service jurisprudence where Rules are in place, then the key proposition raised has to be examined on the basis of the Rules. Unless Rules are held to be ultra vires or otherwise illegal, the Court does not enjoy a legal space to pronounce a method which amounts to __________ Page 45 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 altering the Rules itself. One has to keep in mind the adage that the job of the Court is to iron out the creases and not weave a new texture. In the absence of any ambiguity, efforts should be to uphold the process if it is valid and in accordance with the Rules. To provide something better which may run counter to the Rules is not within the realm of this Court, unless there is any material to support the same. This would be legal adventurism and any amount of hardship or inconvenience cannot be a ground to direct another process to be followed. The incapacity of the candidates to provide the certificate cannot be translated into a non-requirement. An assertion of a belief of pragmatism is insufficient to substitute an already existing Rule. A perception as to what would be more practical takes the shape of pragmatism, which is a belief bias. Belief bias has been described by Andrew Goodman in his book 'How Judges decide Cases' as “An effect where someone's evaluation of the logical strength of an argument is biased by the believability of the conclusion”. The Court cannot believe something and then proceed to justify it. The justification for the belief has to precede the conclusion. The Rule of Law therefore has to be adhered to and the law cannot be legislated by laying down the procedure, which in the opinion of the Court might be __________ Page 46 of 48 http://www.judis.nic.in W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 a better proposition. This would violate the Rule of Law. To arrive at this conclusion, we have stepwise analyzed the entire dispute and are therefore of the opinion that the writ petitions deserve to be rejected and ought not to have been allowed.
46. Accordingly, we allow all the appeals and set aside the impugned judgments dated 12.03.2019 and 28.03.2019 and dismiss all the writ petitions. No order as to costs. Consequently, C.M.P.Nos.6456, 6457, 6462, 6463, 6465, 6466, 6467, 6471 and 6473 of 2020 are closed.
(A.P.S., CJ.) (S.K.R., J.)
16.03.2020
Index : Yes
bbr
__________
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W.A.Nos., 404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 THE HON'BLE CHIEF JUSTICE AND SENTHILKUMAR RAMAMOORTHY, J.
bbr W.A.Nos.404, 405, 406, 407, 408, 409, 410, 412 and 413 of 2020 16.03.2020 __________ Page 48 of 48 http://www.judis.nic.in