Madras High Court
A.Antony Premkumar vs State Of Tamil Nadu on 27 January, 2014
Author: M.Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2014
CORAM
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
W.P.No.33143 of 2012 &
M.P.Nos.1 & 2 of 2012
A.Antony Premkumar ... Petitioner
Vs
1. State of Tamil Nadu
Rep. By its Secretary to Government,
Higher Education Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2. The Chairman,
Teacher's Recruitment Board,
4th Floor, EVK Sampath Salai,
DPI Campus,
College Road,
Chennai-600 006. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus calling for the enquire records connected with the non-selection of the Petitioner treating him as 'BCA' Graduate by the Second Respondent published in its Website on 06.12.2012 and quash the same and consequently, direct the Second Respondent to consider the candidature for appointment to the post of Graduate Teacher (BT Assistant), in the present recruitment 2011-2012, as fully eligible as per the prescribed qualification of the Second Respondent Board by its Notification in Advertisement No.04/2012 dated 07.03.2012.
[Prayer amended as per order dated 13.12.2012 in MP Nos.3 to 5 of 2012 in W.P.No.33143 of 2012]
For Petitioner : Mr.S.R.Rajagopal for
Mr.V.Sathish
For Respondents : Mr.V.Subbiah,
Special Government Pleader for R1 & R2
O R D E R
The Petitioner has preferred the instant Writ of Certiorarified Mandamus calling for the entire records connected with the non-selection of the Petitioner treating him as 'BCA' Graduate by the Second Respondent published in its Website on 06.12.2012 and to quash the same. Further, he has sought for passing of an order by this Court in directing the Second Respondent to consider his candidature for appointment to the post of Graduate Teacher (BT Assistant), in the present recruitment 2011-2012, as fully eligible as per the prescribed qualification of the Second Respondent/the Chairman, Teachers' Recruitment Board, 4th Floor, EVK Sampath Salai, DPI Campus, College Road, Chennai-600 006 [through its notification in Advertisement No.04/2012 dated 07.03.2012].
2.According to the Petitioner, he hails from Christian Vanniyar community which is a Backward Class. He completed his Higher Secondary Course in December, 2001. He successfully completed his Bachelor of Science with Mathematics as major subject and Computer Applications as allied subject from Sree Ramu College of Arts and Science, Pollachi under the Bharathiar University, Coimbatore in April, 2005 with First Class. He was issued provisional and convocation Certificates as graduate/faculty in science. Later, he joined M.C.A. Course and completed the same during the year 2008.
3.During the middle of 2008, he suffered rarest viral fever. His entire body below his neck became abnormal. The said abnormality continued till 2010. However, with constant medication and much difficulty, he recovered from the said abnormality. He pursued his Bachelor of Education in K.M.G. College of Education, Pollachi, Coimbatore District. He successfully completed the same in May 2011. He obtained a Certificate dated 13.08.2011 to that effect by the Tamil Nadu Teachers Education University, Chennai. Subsequently, he registered himself as a prospective candidate for appointment to the teaching post with the District Employment Office, Coimbatore. He was assigned registration No.CBD2011M00133346 on 29.08.2011.
4.In accordance with the provisions of Section 23(1) of the Right to Education Act, 2003, by a notification dated 23.08.2010, the National Council of Teacher Education (in short "NCTE") had laid down the minimum qualifications for a person to be eligible for appointment as a teacher classes I to VIII. It was inter alia mentioned that one of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of Section 2 of the above said Act is that he/she should pass the Teacher Eligibility Test which will be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE.
5.By a notification in G.O.(Ms).No.181 dated 15.11.2011 of the School Education (C2) Department, the Second Respondent was designated as Nodal Agency for conducting of Teacher Eligibility Test and recruitment of Teachers.
6.By a notification dated 07.03.2012, the Second Respondent-Board called for applications to write Teacher Eligibility Test from those candidates appointed as the Secondary Grade and Graduate Teachers (BT Assistants) in Government, Government Aided and Un-aided Schools on or after 23.08.2010 and all candidates with necessary qualifications and seeking for appointment as Teachers for Classes I to VIII.
7.The eligibility to write the Teacher Eligibility Test for the candidates seeking appointment of Classes I to VIII prescribed by the Second Respondent is as follows:
"Candidates who have passed a Bachelor's Degree (B.A./B.Sc.,/B.Litt) with Tamil, English, Mathematics, Physics, Chemistry, Botany, Zoology, History and Geography or a Degree with any one of the equivalent subjects from a Recognised University under 10+2+3 Pattern and a Degree in a Teacher Education (B.Ed) from Recognised University and seeking an appointment as Teacher for Classes VI to VIII can write Paper II."
8.He is eligible as per the qualification prescribed by the Second Respondent-Board. He applied for the Teacher Eligibility Test and he duly appeared for the TNTET held on 12.07.2012. He was not successful in the said examination. Further, only about 2800 candidates have passed the above Teacher Eligibility Test. As such, on the intervention of this Court, the Second Respondent-Board conducted the Supplementary Examination on 14.10.2012. The Teacher Eligibility Test is conducted for 150 marks and the candidate who scores 60% (which works out 90 marks) and above was being declared as successful.
9.He received his Hall Ticket from the Second Respondent-Board. Totally 3,77,973 candidates were appeared for the Supplementary examination Paper II. About 8,849 candidates have passed in Paper II. He is one of the candidates passed the TET-Paper II scoring 105 out of 150 marks and became eligible for appointment as Graduate Teacher (BT Assistant).
10.He was called upon by the Second Respondent-Board to appear before the Selection Committee on 06.11.2012 at Presentation Girls Higher Secondary School, Near Head Post Office, Coimbatore for production and verification of his certificates. However, when the education certificates were verified, though his major subject was Mathematics, for having not opted Physics and Chemistry as allied subjects and opted for Computer Applications as allied subject in his degree course, the committee required him to produce equivalent certificate from the Bharathiar University.
11.He made a representation on 07.11.2012 in person to the Registrar of the Bharathiar University, Combatore and requested him to provide him an equivalent certificate to that effect. By an official memorandum No.B3/2012 dated 07.11.2012, the Registrar of the Bharathiar University issued him an equivalent certificate. He submitted the aforesaid equivalent certificate to the Selection Committee. The same was also received by the said Committee. He was under the positive impression and legitimate expectation that he would be duly selected for the post of Graduate Teacher (BT Assistant).
12. On 06.12.2012, the Second Respondent-Board released the tentative list of provisionally selected candidates for the post of Secondary Grade Teachers and Graduate Teachers for about 8,722 candidates. In respect of his position, the result made available on internet by the Second Respondent/Board, which indicated that he was not selected but under the column "Remarks", he was shocked to found that his degree was wrongly mentioned as 'BCA'. On 07.12.2012, he immediately approached the office of the Second Respondent requested one of the office personnel that his degree was wrongly mentioned as 'BCA'. However, his plea was not heeded to. Then, when he made a request to meet the Secretary, he was informed that he was not available.
13.The stand of the Petitioner is that he possessed the qualification as graduate in Science with Mathematics as major subject and Computer Applications as allied subject. However, the Second Respondent-Board arrived at a conclusion that he had done his entire degree course in Computer Applications. Since, the Second Respondent-Board had completely erred in law, he had filed the present Writ Petition.
14.It transpires that in M.P.Nos.1 and 2 of 2012 in W.P.No.33143 of 2012, this Court on 17.12.2012 has passed the following order:
"Any appointment made is subject to the result of the writ petition. Notice."
15.At the outset, this Court very pertinently points out that admittedly, the Petitioner's degree was wrongly mentioned in "Remarks" column as 'BCA'. His actual qualification is B.Sc., Mathematics [Computer Applications]. It cannot be gainsaid that a mere running of the eye over the contents of G.O.Ms.No.72 , Higher Education (K2) Department, dated 30.04.2013 issued by the Principal Secretary to Government in Serial.No.22, B.Sc., Maths (Computer Application) is considered to be equivalent one to B.Sc., Maths. Therefore, it is candidly clear that the Petitioner's qualification of B.Sc., Maths [Computer Applications] is equivalent to B.Sc., Maths and the Equivalence Committee has recommended to the Government and later only, the Government have come up with G.O.Ms.No.72 dated 30.04.2013, as stated supra.
16.At this juncture, this Court aptly points out that the Full Bench order of this Court dated 29.11.2012 in W.P. (MD).Nos.W.P.(MD)Nos.16181, 16051, 16052, 15660 & 16780 of 2012 and 18793 of 2013 and Contempt Petition (MD)No.637 of 2013 between Nadar Thanga Shubha Laxman.A Vs. The State of Tamil Nadu, Rep. by its Principal Secretary, Department of School Education, Fort St. George, Chennai-9 and another [where one of us (M.VENUGOPAL,J) was a party)], whereby and whereunder in paragraphs 21 to 25, it is observed and laid down as follows:
"21.In yet another judgment of the Apex Court in Udai Singh Dagar vs. Union of India, reported in (2007) 10 SCC 306, while considering almost a similar issue with regard to protecting the rights and privileges of diploma and certificate holders in Veterinary Science, it was held that not only a vested or accrued right but also inchoate right is protected. Strong reliance in this behalf has been placed on a decision in Court of Appeal in Chief Adjudication Officer vs. Maguire, reported in (1999) 2 All ER 859 (CA). It is relevant to extract paragraph 71 of the above said judgment:-
71. The expression unless a different intention appears contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right , whether inchoate or accrued or acquired right, can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. (See banisdhar vs. State of Rajasthan, reported in (1989) 2 SCC 557 and Thyssen Stahlunion GmbH vs. Steel Authority of India Ltd. reported in (1999) 9 SCC 334.
22.The above observation of the Apex Court clearly answers the doubt raised in this Reference that a right whether inchoate or accrued or acquired right can be held to be protected, provided the right survives. In the light of the said principle, if the case on hand is considered, admittedly, the equivalence committee has considered and approved the equivalent nature of the degree and certificate obtained by the candidates. Similarly, the Government Order issued by the Government also agrees with the validity of the degree, therefore, from the date the degree was obtained by the candidate, the right is accrued, hence the same should be protected. While so, giving a different meaning that the validity of the degree will have prospective effect or retrospective effect is uncalled for. To make it even further clear, we wish to mention at the risk of repetition that when both the equivalence committee and the Government Order issued by the State Government have not chosen to restrict the validity of the degree obtained in any one of their orders, it goes without saying that the validity of the degree from the date of acquisition will stand to benefit the candidates, therefore, the question of introducing the prospective or retrospective ruling will tantamount to violent interpretation against the settled legal position. In this context, it is useful to refer to the judgment of the Apex Court in the case of B.S.Vadera vs. Union of India reported in AIR 1969 SC 118, wherein, the law is well declared that an accrued and acquired right of a person cannot be taken away with retrospective effect.
23.Also, in the present case, neither the Equivalence Committee nor the Government Orders in G.O.Ms.Nos.72, dated 30.04.2013 and 117, dated 02.07.2013, confined the validity of the degree obtained by the candidates to operate prospectively, therefore, as per the above judgments, when the vested rights are created from the date of their acquisition of equivalent degrees, the Respondents cannot take a stand that the degrees obtained by the Petitioners will only have prospective effect from the date of issuance of Equivalence Certificate. When both the Equivalence Committee and the Government Order have consistently not mentioned the effect of the validity of the degree, it is not proper to hold prospective by any one, more so, by the Court. That apart, a degree or a certificate issued by any University or competent educational authorities always have the effect on par with a decree issued by a competent civil court. Besides, it is well settled legal position that even an executing court cannot go behind its decree and this principle will mutatis mutandis undoubtedly apply to the case on hand as well.
24.It must be stressed here that fairness demands that no court can afford to have more than one view on one or the same issue; lest, there will be inconsistency. Consistency and Uniformity are the basic virtues inherent in every court proceedings. The law is meant to protect people from inconsistency bred by any legal confusion and confrontation. When two of the learned single Judges' orders have not been addressed nor over-ruled on the vital point, we are duty-bound to iron out the inconsistency to have uniformity and consistency on the issue involved. To uphold the 'one court-one view' principle, in turn, to restore the consistency and uniformity, we hereby hold that the view taken in Geetha's case is incorrect, therefore, it is over-ruled.
25.In view of the above settled position and for the foregoing reasons, we hold that the equivalence certificate issued by the committee constituted by the Government declaring that the degrees obtained from one University is equivalent to the degrees obtained from yet another University cannot be held to be only prospective in operation but will have its effect and validity right from the date of issuance, therefore, with due respect to the Hon'ble Division Bench, the view taken in N.Geetha's case is incorrect. Accordingly, the reference is answered."
17. Because of the error that has crept in in the publication of result of the Tamil Nadu Teacher Eligibility Test Supplementary 2012 [Graduate Assistants], Department of Education, wherein in "Remarks" column, the Petitioner's qualification was wrongly described as 'BCA', when in fact, he is a B.Sc., Maths (Computer Application) Degree Holder and added further, when his B.Sc., Maths (Computer Application) was considered to be an equivalent one to B.Sc., Maths, more specifically in terms of G.O.Ms.No.72, dated 30.04.2013, then, this Court comes to a favourable and irresistible conclusion that the Petitioner has an indefeasible and legally inevitable right to consider his claim/case for appointment to the post of Graduate Teacher (BT Assistant) for the recruitment 2012, as fully eligible as per the prescribed qualification of the Second Respondent-Board, through its Notification in Advertisement No.04/2012 dated 07.03.2012. As such, this Court, to prevent an aberration of justice and to secure the ends of justice, directs the Second Respondent/the Chairman, Teachers' Recruitment Board, 4th Floor, EVK Sampath Salai, DPI Campus, College Road, Chennai-600 006, to consider the case /claim of the Petitioner (subject to eligibility and suitability) in regard to the appointment to the post of Graduate Teacher [BT Assistant] for the recruitment of the year 2012 on the basis of Fair Play, Equity, Good Conscience and even as a matter of prudence and to pass a reasoned speaking order on merits in a dispassionate manner, within a period of four weeks from the date of receipt of copy of this order. Further, this Court directs the Respondents to place the Petitioner at the appropriate place (in seniority) in the manner known to Law and in accordance with law.
18.With the aforesaid directions, the Writ Petition stands disposed of. Consequently, connected miscellaneous petitions are closed. No costs.
27.01.2014
Index : Yes/No
Internet : Yes/No
kal
Office Note: Issue Order Copy on 27.01.2014.
To
1. State of Tamil Nadu
Rep. By its Secretary to Government,
Higher Education Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2. The Chairman,
Teacher's Recruitment Board,
4th Floor, EVK Sampath Salai,
DPI Campus,
College Road,
Chennai-600 006.
M.VENUGOPAL, J
kal
W.P.No.33143 of 2012 &
M.P.Nos.1 & 2 of 2012
27.01.2014