Madras High Court
Teachers Recruitment Board vs Mr.K.Prasad on 3 January, 2019
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2775 of 2018
and
CMP No.22952 of 2018
Teachers Recruitment Board,
rep. by the Chairman,
College Road,
Chennai - 600 006. ... Appellant
Vs.
1. Mr.K.Prasad
2. The Assistant Director,
District Employment Office,
Thiruvallur.
3. Miss. J.Saradhadevi ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the Order
dated 22.02.2018 made in W.P.No.19951 of 2012.
For Appellant : Mr.C.Munusamy,
Spl. Government Pleader (Education)
For Respondents : Mr.R.Rajendran (for R1)
For R2 and R3 : No Appearance
http://www.judis.nic.in
2
JUDGEMENT
(Judgement of the Court was delivered by S.MANIKUMAR, J) Writ appeal is directed against the order made in W.P.No.19951 of 2012 dated 22.02.2018, by which the writ Court, while allowing the writ petition, directed the appellant herein, to cancel the selection of the 3rd respondent (Miss.J.Saradhadevi) and appoint the 1st respondent herein/writ petitioner (Mr.K.Prasad) in the post of B.T. Assistant Mathematics (Telugu) earmarked for MBC (General) (backlog).
2. Facts leading to the filing of the instant writ appeal, are as follows:
(i) District Employment Exchange Office sponsored the names of the candidates, in the ratio of 1:5 to the appellant/Teachers Recruitment Board for appointment to the post of B.T. Assistant Mathematics (Telugu), and other vacancies including backlog, through Employment Registration Seniority, for the year 2010-11. As per the Notification of vacancies, one (backlog) vacancy for Most Backward Class (General), priority category, was earmarked in the notification for B.T. Assistant Mathematics (Telugu) and cut off date for the same was 18.09.2009. Accordingly, five persons including the 1st respondent / writ petitioner (Mr.K.Prasad, W.P.No.19951 of 2012), were sponsored. The 3rd respondent (Miss.J.Saradhadevi) was sponsored against Open Category (General), as she was not registered in MBC category, in the employment exchange record. In the process of selection, the Teachers Recruitment Board http://www.judis.nic.in 3 selected the 3rd respondent in MBC (General) priority category for the aforesaid post, though her name was not sponsored for the same, as she had produced the requisite community certificate of the earmarked priority category only on the date of verification of the certificate. Such selection of her was justified on the ground that she had already obtained an MBC certificate from the State of Tamil Nadu, at the time of selection, though the cut-off date for the aforesaid post in MBC (General) category was 18.09.2009.
(ii) According to the 1st respondent/Mr.K.Prasad, as the 3rd respondent (Miss.J.Saradhadevi) was not having MBC category certificate on the aforesaid cut-off date from the State of Tamil Nadu.
(iii) Appellant has contended that selection is being contrary to law, illegal and arbitrary, and hence liable to be quashed, and he being second senior most candidate in the said MBC category sponsored, and entitled to be appointed, as the senior most candidate sponsored in that priority category. He has filed WP No.19951 of 2012, for the following prayer.
"for a writ of certiorarified mandamus, quash the tentative selection list dated 19.07.2012 of the 1st respondent/Teachers Recruitment Board, selecting 3rd respondent therein to the post of B.T. Assistant, Mathematics (Telugu) and direct the 1st respondent/Teachers Recruitment Board, to appointment the petitioner against the said post."
http://www.judis.nic.in 4
(iv) Writ Court, passed an interim order staying appointment of 3rd respondent and subsequently, her appointment was cancelled by the appellant and 2nd respondent herein, pending disposal of W.P.No.19951 of 2012. Therefore, 3rd respondent has filed W.P.No.11227 of 2014 with a prayer to quash such cancellation and direct her appointment.
(v) Writ Court, after hearing both the writ petitions and upon perusal of the counter affidavits and material on record, vide common order dated 22.02.2018, allowed W.P.No.19951 of 2012, filed by the 1st respondent / writ petitioner (Mr.K.Prasad) and dismissed W.P.No.11227 of 2014 filed by the 3rd respondent herein (Miss.J.Saradhadevi, as hereunder.
"7. From the aforesaid averments made as well as the contentions advanced, as it appears, the questions that have arisen for determination in the writ petition are (i) Whether the selection and appointment of the respondent No.1 in the writ petition 11227 of 2014 against the earmarked vacancy of the priority category of MBC (General) for the post of B.T. Assistant, Mathematics (Telugu) was illegal and arbitrary (ii) if so, whether the writ petitioner in W.P.No.19951 of 2012 is entitled to be selected and appointed against the said post earmarked for the priority category in question.
8. In this case, it is not in dispute that the respondent no.3 though belongs to BC category in the State of Andhra Pradesh, and was registered on transfer in the State of Tamil Nadu in the Employment Exchange, she was not sponsored as a MBC General category candidate against the earmarked post but sponsored as an open category candidate inasmuch as possession of a MBC category certificate issued http://www.judis.nic.in by the competent authority in the State of Tamil Nadu was essential for 5 registration on the said priority category. However, she having obtained the required community certificate before the certificate verification, she was selected against the priority earmarked category of MBC (General) by the respondent no.1 ignoring the writ petitioner who was admittedly sponsored against such priority category and had the necessary requisite community certificate and also the qualification for being selected against the priority category earmarked post i.e. B.T. Assistant Mathematics (Telugu). The same has been justified by the respondent No.3 placing reliance in a decision of this Court rendered in the case of A.Belinda Vs. Teachers Recruitment Board and a decision of the Apex Court rendered in the case of Charles K. Skaria vs. C. Mathew cited supra. As it appears in the case of A.Belinda, that therein the petitioner was already issued with certificate on the cut-off date, but could not produce the same as the same was destroyed. However, he produced a duplicate certificate thereof indicating the fact that he was issued such certificate before the cut-off date in that context, this Court taking note of the fact that the petitioner was qualified in that category being belonging to that community in view of the original certificate issued which he could not produce, held that the proof furnished thereof which was issued to him after the cut-off date as a duplicate one cannot deprive him for being considered against the said category. The aforesaid is also a view of the Apex Court in the case of Charles K. Skaria vs. C. Mathew, reported in 1980 (2) SCC 752. But here in this case, admittedly, the respondent no.3 was not in possession of the MBC Community Certificate from the State of Tamil Nadu as on the cut-off date and as such her name was not sponsored against the earmarked priority category vacancy. No doubt, she produced the community certificate at the time of verification of certificates, which she obtained latter to the cut-off date. As such, she had no qualification to be considered against earmarked vacancy of MBC General for which the category the post was earmarked, moreso, when she was not http://www.judis.nic.in sponsored for that reason against that earmarked category vacancy by 6 the Employment Exchange. The Apex court in the case of C.M Singh vs. H.P.Krishi Vishva Vidyalaya (1999) 9 SCC 40, so also State of Haryana vs. Anurag Srivastava (1998) 8 SCC 399, have held that a candidate must possess the requisite qualification on the last date of submission of his application. It is the last date of receipt of the application which would be relevant for deciding as to whether a candidate is qualified or not. Admittedly, here in this case, such last date is the cut-off date. Therefore, the respondent no.3 being not possessing the qualification as required to be considered for the earmarked category as on the cut-off date her selection, against the earmarked vacancy was contrary to law, moreso, when she was not sponsored against the said vacancy. Accordingly, after challenge of such selection in the writ petition W.P.NO.19951 of 2012 and the interim order passed, realising the mistake, the respondent No.2 and 3 have passed the order impugned in W.P.No.11227 of 2014 cancelling such selection and appointment of the respondent No.3 and relieved her from the post, pending disposal of the W.P.No.19951 of 2012. The respondent No.1 also in its counter affidavit has also averred the selection of respondent No.3 was irregular for the reasons that she was not possessing the priority category certificate as on the cut-off date and not sponsored against such priority category but was illegally selected having produced the category community certificate on the date of verification of certificate. In such premises the selection of respondent No.3 vide the impugned selection order and the consequential appointment being contrary to law cannot be sustained. In such premises, the writ petitioner in W.P.No.19951 of 2012 being the next senior most candidate sponsored against the priority category post is entitled to be appointed inasmuch as the senior most in that priority category by the time of selection was already absorbed in respect of an open category post and as such was not available for consideration against the prioritise category earmarked post in question. In view of the mandate of Rule 22(b) and proviso fourth to Rule 22(d) of http://www.judis.nic.in the Tamil Nadu State and Subordinate Services Rules. Accordingly, the 7 writ petition of the petitioner in W.P.No.19951 of 2012 deserves to be allowed whereas, the writ petition of the respondent No.3 in that case filed vide W.P.No.11227 of 2014 challenging the selection and cancellation of her appointment is liable to be dismissed, as her selection against the post was illegal for not possessing the required community certificate on the cut-off date for consideration against the post earmarked for the priority category of MBC (General)."
3. Aggrieved by the abovesaid order made in W.P.No.19951 of 2012 dated 22.02.2018, Teachers Recruitment Board, has filed the instant writ appeal on the following grounds.
(i) Writ Court ought to have considered the fact that the Board sent an indent to the employment exchange for a total number of 10 vacancies for the post of Graduate Assistant Mathematics (Telugu Medium) in various communal turns and out of 10 vacancies, 1 vacancy has been earmarked for Most Backward Class (Women).
(ii) Writ Court ought to have considered the fact that the writ petitioner/1st respondent herein was one among the candidates sponsored by the employment exchange for the post of Graduate Assistant in Mathematics (Telugu Medium), under Most Backward Class communal turn and was called for certificate verification and at the time of certificate verification, it was found that he had registered in the employment exchange on 25.04.2008. http://www.judis.nic.in 8
(iii) Writ Court ought to have considered the fact that the cutoff date of the last candidate selected in the Most Backward Class communal turn was 05.12.2007 and since the date of registration of the writ petitioner (W.P.No.19951 of 2012)/1st respondent herein, Thiru.K.Prasad 25.04.2008 did not fall within the selection zone, he was not selected for the post of Graduate Assistant in Mathematics (Telugu Medium).
(iv) Writ Court ought to have considered the fact that the selection of candidate viz., J. Saradha Devi, the 3rd respondent herein was withdrawn as per Interim orders of this Court. Hence, MBC (G) turn has already been utilized and the writ petitioner's claim to consider him under MBC(G) turn is not legally sustainable.
(v) Writ Court ought to have considered the fact that the Board selected candidates for all the vacancies notified and when the recruitment process was in midway, Government have issued orders in G.O.Ms.No.181 (School Education) Department Dated: 15.11.2011, stating that passing Teacher Eligibility Test is mandatory for the post of B.T. Assistant.
(vi) Writ Court ought to have considered the fact that the candidate referred to by the writ petitioner (Mr.K.Prasad) was terminated from service only on 22.03.2013 and hence the Board has filled up vacancies, for subsequent http://www.judis.nic.in 9 recruitment, by prescribing Teacher Eligibility test as a mandatory qualification.
(vii) Writ Court ought to have considered the fact that this Court by order dated 03.11.2015 in W.P.No.4827 of 2012 has directed that the recruitment for the selection of B.T. Assistants, be made only among the candidates qualified in Teacher Eligibility Test, for those whose seniority was not in the selection zone during the recruitment made in 2010-2011.
(viii) Writ Court ought to have considered the fact that the writ petitioner (Mr.K.Prasad, W.P.No.19951 of 2012) was not selected on merits for the post, and hence his claim to consider him on the same footing as that of the selected candidates on merit is unacceptable.
4. On the above grounds, Mr.C.Munusamy, learned Special Government Pleader (Education), appearing for the appellant, Teachers Recruitment Board, Chennai, made submissions.
5. On 02.01.2019, we passed the following order Being aggrieved by the portion of the common order made in W.P.Nos.19951 of 2012 and 11227 of 2014 dated 22.02.2018, by which appellants have been directed to issue necessary appointment order to Mr.K.Prasad, respondent herein (petitioner http://www.judis.nic.in 10 in W.P.No.19951 of 2012), instant writ appeal has been filed.
2. On this day, when the matter came up for admission, Mr.C.Munusamy, learned Special Government Pleader submitted that subject to the outcome of the instant appeal, vide proceedings in RC No.5633/B2/2012 dated 18.09.2018, 1st respondent herein has been appointed as B.T.Assistant (Maths) Telegu Medium.
3. Mr.R.Rajendran, learned counsel for the 1st respondent submitted that vide proceedings in Na.Ka.No.181/2018 dated 22.09.2018, Head Master (incharge), Government Higher Secondary School, Thally, Denkanikottai Taluk, Krishnagiri District, has informed the Chief Educational Officer, Krishnagiri that 1st respondent has joined the school on 22.09.2018. Inviting the attention of this Court to the common order made in W.P.Nos.19951 of 2012 and 11227 of 2014 dated 22.02.2018, learned counsel for the respondent, made above facts. He further submitted that in W.P.No.19951 of 2012, filed by the 1st respondent, no counter affidavit was filed by the appellants. Whereas in W.P.No.11227 of 2014, filed by J.Saradha Devi, against the cancellation of her selection, counter affidavit was filed by the appellants stating that she did not produce the community certificate, against the priority category.
4. From the submission and material on record, it could be prima facie deduced that before the writ Court, appellants have not filed any counter affidavit in W.P.No.19951 of 2012, but filed the same in the writ appeal.
5. Before us in the writ appeal, appellants have also not filed a counter affidavit in W.P.No.11227 of 2014 filed by J.Saradha Devi. Registry is directed to get the entire cause papers http://www.judis.nic.in in W.P.Nos.19951 of 2012 and 11227 of 2014 dated 22.02.2018. 11
6. Mr.Rajendran, learned counsel for the 1st respondent is directed to file the entire pleadings in both the writ petitions.
7. Post on 03.01.2019 in the motion list.
6. As observed in the foregoing paragraph, no counter affidavit has been filed in W.P.No.19951 of 2012 filed by Mr.K.Prasad, 1st respondent herein (Petitioner in W.P.No.19951 of 2012). Pursuant to the interim order passed in W.P.No.19951 of 2012 dated 26.07.2012, Joint Director (Personnel) of School Education Department, Chennai, vide proceedings in Rc.No.26841/E3/C2/2013, dated 22.03.2013, has cancelled the appointment of Miss.J.Saradhadevi as B.T.Assistant Maths (Telugu), challenging the same she has filed W.P.No.11227 of 2014.
7. Counter affidavit filed by the Chairman, Teachers Recruitment Board, appellant herein, in WP No.11227 of 2014 filed by Miss.J.Saradhadevi, is as follows:
(i) Commissioner of Employment and Training sponsored the names of the candidates in the ratio of 1:5 to the 1st Respondent Board for selection for recruitment to the posts of Minority subject Graduate Teachers including backlog vacancies through Employment Registration State Seniority for the year 2010-2011 duly following communal reservation and other priority categories as per the Government Orders in vogue.
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(ii) Ten vacancies were earmarked for Graduate Assistants in Mathematics (Telugu Medium). Out of the ten vacancies, one vacancy was earmarked for the Most Backward Class (General). The Commissioner of Employment and Training sponsored the name of the petitioner/Miss.J.Saradhadevi in W.P.No.11227 of 2014 in OC turn to the 1st Respondent Board for Certificate Verification pertaining to the recruitment for the post of Graduate Assistant in Mathematics (Telugu Medium).
(iii) Petitioner/J.Saradhadevi (W.P.No.11227 of 2014) was called for Certificate Verification on 23.06.2012. At the time of certificate verification, it was found that the petitioner had passed B.Sc., and B.Ed., through Telugu Medium. She belongs to the Hindu Jangam Community. She has obtained a Community Certificate from the competent authority at Tiruthani on 29.03.2010 to prove that she belongs to the Most Backward Class Community (MBC). It was also found as admitted by her in para 2 of the affidavit that she got her community (i.e.) Hindu Jangam as belonging to MBC, registered with the District Employment Exchange at Thiruvallur, subsequently.
(iv) Petitioner/J.Saradhadevi (W.P.No.11227 of 2014) transferred her Employment Registration from the District Employment Office, Chithoor to the District Employment Office, Thiruvallur on 06.02.2008 with Employment Seniority with effect from 05.12.2007. The appellant/Board, by sheer mistake, http://www.judis.nic.in 13 on the strength of the MBC community certificate dated:29.03.2010, selected the petitioner against the vacancy of Graduate Assistant in Mathematics (Telugu Medium), in MBC (General) Turn and she was appointed as Graduate Assistant in Mathematics (Telugu Medium), in Government High School, Thally in Krishnagiri District, pursuant to the proceedirgs of the Joint Director of School Education (Personnel) Vide Na.Ka.61440/C3/E2/2012, dated: 10.10.2012.
(v) K.Prasad (Petitioner in W.P.No.19951 of 2012) whose name was sponsored by the Commissioner of Employment and Training to the appellant Board, against the Backlog vacancy of Graduate Assistant in Mathematics (Telugu Medium) earmarked for MBC, filed a writ petition in W.P.No. 19951 of 2012, to issue a Writ of Certiorarified Mandamus, by calling for the records pertaining to the tentative List of Candidates Selected for Appointment (Backlog) and Minority through Employment Registration State Seniority 2010- 2011 and to quash the same, in so far as it relates to the selection of the 3rd respondent Miss J.Saradha Devi, (Petitioner in W.P.No.11227 of 2014) belonging to Open Category but selected against the only vacancy reserved for the Most Backward Class category (General) and consequently to direct the appellant to select the writ petitioner/K.Prasad (W.P.No.19951 of 2012) who was the senior most, among the Most Backward Class category candidates, appeared for Certificate Verification before the appellant.
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(vi) Aforesaid K.Prasad filed M.P.No.2 of 2012 in W.P.No.19951 of 2012 seeking direction from this Court to suspend the operation of the impugned list in so far as it relates to the selection of the 3rd respondent Miss J.Saradha Devi, (Petitioner in W.P.No.11227 of 2014) belonging to "other category," but selected against the vacancy reserved for the Most Backward Class community (General) (in M.P.No.2 of 2012), pending disposal of W.P.No. 19951 of 2012 respectively. This Court passed an Interim Direction staying the selection of Miss J.Saradha Devi (Petitioner in W.P.No.11227 of 2014) dated 26.07.2012 in M.P.No.2 of 2012 in W.P.No.19951 of 2012.
(vii) Consequent to the interim direction of this Court dated 26.07.2012, the petitioner therein, (Mr.K.Prasad, Petitioner in W.P.No.19951 of 2012) filed a Contempt Petition No.39 of 2013 in W.P.No.19951 of 2012 against the appellant Board on 16.11.2012.
(viii) The appellant board discussed the consequences and repercussions that may arise in the event of implementing the aforesaid interim order of this Hon'ble Court with the members of the Board and Legal Advice was also sought from the learned Government Pleader.
(ix) Appellant board considered the case of (Miss.J.Saradhadevi)/3rd respondent, against the only one vacancy of Graduate Assistant in Mathematics http://www.judis.nic.in 15 (Telugu Medium), in MBC (General) Turn, on the basis of the community certificate produced by her at the time of certificate verification. However, as (Miss.J.Saradhadevi) got her Community Certificate specifying her caste of Hindu Jangam as belonging to MBC only on 29.03.2010 and subsequently registered her status as belonging to MBC with the Commissioner of Employment and Training, her selection and appointment in the MBC (General) category, at the cost of the Writ Petitioner (Mr.K.Prasad) in W.P.No.19951 of 2012, is irregular.
(x) The mistake committed by the appellant board in the selection of the petitioner in the MBC (General) Turn was rectified by the proceedings of the board dated 22.03.2013 and the consequential proceedings passed by the Chief Educational Officer, Krishnagiri, in Rc.No.01462/A4/2013, dated 28.03.2013.
(xi) Employment Identity Card of the Petitioner (Ms.J.Saradhadevi, W.P.No.11227 of 2014)/ 3rd respondent bearing Registration NO.TVD2008F00000352 dated 06.02.2008 issued by the Assistant Director, District Employment Office, Thiruvallur evidently shows that the petitioner's (Ms.J.Saradhadevi) status has not been registered as belonging to MBC in 2008, but, registered as "General Turn-others". The writ petitioner, K.Prasad in WP No.19951 of 2012 has registered his community (i.e.) MBC on 25.04.2008 as evidenced from his Employment Identity Card bearing Registration No.1939/08, http://www.judis.nic.in 16 dated 25.04.2008. There is no controversy that (Ms.J.Saradhadevi)/3rd respondent, got her qualification of B.Sc., & B.Ed., registered as on 05.12.2007.
(xii) Appellant board, in the counter affidavit has further, referred to explanation for Backward Classes in para 4 of Part I, of Tamil Nadu State and Subordinaze Services Rules, which reads as follows:
"Persons who belong to the State of Tami1 Nadu alone, who belong to one of the communities specified in Schedule-I, shall be treated as persons who belong to one of such communities- substituted in G.O.Ms.No.55 P&AR (S) dt.08.04.2009 w.e.f. 29.10.2007."
8. Appellant board has further stated that persons belonging to other states shall not be treated as belonging to SC or ST or MBC/DCs or BC and BC(M), eventhough they may belong to one of those communities. Hence, irrespective of the community to which a person of other States belongs, he /she is categorized only under O.C. in Tamil Nadu.
(xiii) Appellant board in the counter affidavit to W.P.No.11227 of 2014 filed by Ms.J.Saradhadevi has further stated that, in the instant case, Ms.J.Saradhadevi, the petitioner in W.P.No.11227 of 2014/3rd respondent was residing in Andhra Pradesh from her childhood. She has acquired her educational qualifications in the institutions located in Andhra Pradesh. As http://www.judis.nic.in 17 admitted by her, she had registered her qualifications in the employment exchange at Chittoor, Andhra Pradesh State, and has come to settle in Tamil Nadu only in 2008. She subsequently registered in Trivellore employment exchange on 06.02.2008. Hence, undoubtedly, she is a native of Andhra Pradesh. However, in 2010, she has managed to get a community certificate from the Zonal Dy.Tahsildar of Tiruttani Taluk Office, as belonging to 'MBC' category. Hence, the board has contended that rejection of the plea of Ms.J.Saradhadevi, petitioner in W.P.No.11227 of 2014/3rd respondent herein, by Trivellore employment exchange, to consider her under 'MBC' and categorizing under 'OC is in order. Hence, the petitioner/3rd respondent has to be treated under OC category only, as she is a native of other State (A.P) irrespective of the Community to which she belongs.
(xiv) Contention of the petitioner(J.Saradhadevi, Petitioner in W.P.No.11227 of 2014/3rd respondent that her name should have been sponsored to the 1st Respondent Board in MBC communal Turn on the basis of her Employment Registration Seniority with effect from 05.12.2007 has no legal justification. The petitioner (Ms.J.Saradhadevi) in W.P.No.11227 of 2014/3rd respondent has not made out any case for the interference of this Court.
9. Thus, the appellant board has opposed the prayer sought for in W.P.No.11227 of 2014. As extracted supra, Writ Court, after considering both http://www.judis.nic.in 18 the W.P.Nos.19951 of 2012 and 11227 of 2014, quashed the selection of Ms.J.Saradhadevi (Petitioner in W.P.No.11227 of 2014) and consequently, directed Mr.K.Prasad (Petitioner in W.P.No.19951 of 2012) to be appointed. No material has been placed before this Court, as to whether Ms.J.Saradhadevi has challenged the order made in W.P.No.12217 of 2014, dated 22.02.2018. As seen from the counter affidavit, made in W.P.No.11227 of 2014 filed by the appellant board, there is a categorical admission on the part of the appellant board that the selection of Ms.J.Saradhadevi, was a mistake, at the cost of Mr.K.Prasad (Petitioner in W.P.No.19951 of 2012). At the risk of repetition, relevant paragraph is reproduced, However, as the petitioner (Miss.J.Saradhadevi) got her Community Certificate specifying her caste of Hindu Jangam as belonging to MBC only on 29.03.2010 and subsequently registered her status as belonging to MBC with the Commissioner of Employment and Training, her selection and appointment in the MBC (General) category, at the cost of the Writ Petitioner (Mr.K.Prasad) in W.P.No.19951 of 2012, is irregular.
10. Having said so, this Court is unable to understand as to why the appellant has chosen to file the instant appeal. Admittedly, appointment of the candidate who stood first in the selected list G.Dharanikota Srividhya, by producing a bogus community certificate, has been cancelled on 10.05.2015. Fact that Mr.K.Prasad (Petitioner in W.P.No.19951 of 2012), was in the 2nd position http://www.judis.nic.in in the list of candidates, is not disputed. Therefore, the appellant 19 board, ought to have selected and issued orders of appointment. At one stage, the appellant board, in the counter affidavit, filed to W.P.No.11227 of 2014 has taken the stand that appointment of Ms.J.Saradhadevi (petitioner in W.P.No.11227 of 2014) was at the cost of Mr.K.Prasad (petitioner in W.P.No.19951 of 2012) and whereas, in the instant appeal, challenged order made in W.P.No.19951 of 2012, dated 22.02.2018, directing appointment. Appellant cannot approbate and reprobate, and few decisions are worthwhile to consider,
(i). In New Bihar Biri Leaves Co. Vs. State of Bihar, reported in 1981 (1) SCC 537, at paragraphs 48 and 49, the Hon'ble Supreme Court held as follows:-
"48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co., reported in 1921 2 KB 608 Douglas Menzies v. Umphelby, reported in 1908 AC 224, 232 see also stroud's judicial dictionary, Vol. I, p. 169, 3rd Edn.). http://www.judis.nic.in 20
49. The aforesaid inhibitory principle squarely applies to the cases of those petitioners who had by offering highest bids at public auctions or by tenders, accepted and worked out the contracts in the past but are now resisting the demands or other action, arising out of the impugned Condition (13) on the ground that this condition is violative of Articles 19(1)(g) and 14 of the Constitution. In this connection, it will bear repetition, here, that the impugned conditions though bear a statutory complexion, retain their basic contractual character also. It is true that a person cannot be debarred from enforcing his fundamental rights on the ground of estoppel or waiver. But the aforesaid principle which prohibits a party to a transaction from approbating a part of its conditions and reprobating the rest, is different from the doctrine of estoppel or waiver.
(ii). In R.N.Gosain Vs. Yashpal Dhir, reported in 1992 (4) SCC 683, at paragraph 10, the Hon'ble Supreme Court held as follows:-
10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd, reported in 1921 (2) KB 608, 612 (CA) Scrutton, L.J.] According to Halsbury's Laws of England, 4th Edn., Vol. 16, after taking an advantage under an order (for http://www.judis.nic.in example for the payment of costs) a party may be precluded from 21 saying that it is invalid and asking to set it aside. (para 1508)
(iii). In I.T. Commissioner Vs. Firm Muar, reported in AIR 1965 SC 1216, at paragraph 13, the Hon'ble Supreme Court held as follows:-
".........The doctrine of approbate and reprobate is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provisions of a statute."
(iv). In Prashant Ramachandra Deshpande Vs. Maruti Balaram Haibatti, reported in 1995 Supp (2) 539, the principle of "approbate and reprobate" has been explained. At Paragraph 2, the Hon'ble Supreme Court, held thus:-
"2. .........Similarly, on the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. Vide Halsbury's Laws of England, 4th Edn., Vol. 16, para 1507."
(v). In Cauvery Coffee Traders, Mangalore, Vs. Hornor Resources (International) Company Limited., reported in 2011 (10) SCC 420, the Hon'ble http://www.judis.nic.in Supreme Court, at paragraphs 33 to 35, held as follows:- 22
33. In R.N. Gosain v. Yashpal Dhir, reported in 1992 (4) SCC 683 = 2011 (1) SCC (Civ) 451, this Court has observed as under:
(SCC pp.687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.
34. A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide Nagubai Ammal v.
B. Shama Rao, reported in AIR 1956 SC 593, CIT v. V.MR.P. Firm Muar, reported in AIR 1965 SC 1216, Maharashtra SRTC v. Balwant Regular Motor Service, reported in AIR 1969 SC 329, .R. Deshpande v. Maruti Balaram Haibatti, reported in 1998 (6) SCC 507 = AIR 1998 SC 2979, Babu Ram v. Indra Pal Singh, reported in 1998 (6) SCC 358 = AIR 1998 SC 3021, NTPC Ltd. v. Reshmi Constructions, Builders & Contractors, reported in 2004 (2) SCC 663 = AIR 2004 SC 1330, Ramesh Chandra Sankla v. Vikram Cement and Pradeep Oil Corpn. v. MCD. reported in 2008 (14) SCC 58 = 2009 (1) SCC (L&S) 706 = AIR 2009 SC 713.
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35. Thus, it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
(vi). In Joint Action Committee of Air Line Pilots' Association of India (ALPAI) Vs. Director General of Civil Aviation, reported in 2011 (5) SCC 435, the Hon'ble Supreme Court, at paragraph 12, held as follows:-
"12. The doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh, reported in 1998 (6) SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, reported in 1998 (6) SCC 507, and Mumbai International Airport (P) Ltd. v. Golden Chariot Airport [2010 (10) SCC 422 = 2010 (4) SCC (Civ) 195]."
11. Mr.K.Prasad (Petitioner in W.P.No.19951 of 2012, 1st respondent herein, has http://www.judis.nic.in been given appointment in proceedings of the Member (Teacher Eligibility Test), 24 Teachers Recruitment Board, Chennai, in Rc.No.5633/B2/2012 dated 18.09.2018, passed in compliance of the order made in WP No.19951 of 2012, which is as under.
Rc.No.5633/B2/2012 Dated: 18.09.2018 Sub: Teachers Recruitment Board, Chennai - 6 - W.P.No.19951 of 2012 filed by K. Prasad - for the recruitment of B.T. Assistant (Maths) Telugu Medium - order dated 22.02.2018 passed in W.P.No. 19951 of 2016 to pass orders on merits
- compliance order - issuance of - reg.
Ref: 1. Proceedings of Member Secretary, Teachers Recruitment Board, Chennai R.C.NO.5633/B2/2012, dated 22.03.2013.
2. Proceedings of Director of School Education Ref.No.2684/E3/C2/ dated 22.03.2013.
3. Order dated 22.02.2018 made in W.P.No.19951/2012
4. Instruction from Special Government Pleader dated 30.08.2018, 05.09.2018, 07.09.2018.
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Thiru K. Prasad was one among the candidates sponsored by the Employment Exchange for the post of B.T. Assistant (Maths) Telugu Medium for the year 2010-2011.
The Board conducted Certificate Verification for all eligible candidates including the petitioner. The Board published the provisional selection list after Certificate Verification.
In the above provisional selection list one Tmt. J. Saradhadevi who was senior based on Employment Registration to the petitioner was selected under MBC (Women) turn as per date of Registration falls on 05.12.2017.
In the meanwhile Thiru K. Prasad has filed writ petition in W.P.No.19951 / 2012 before the Hon'ble High Court, Madras praying to direct the respondents to terminate the candidate J. Saradhadevi from functioning as Graduate Teacher (Mathematics) Telugu Medium as she http://www.judis.nic.in has produced Community Certificate issued by Andhra Pradesh 25 Government which is treated as only O.C. category as she belongs to other state.
It is submitted that the Hon'ble High Court in Interim order dated 26.07.2012 in W.P.No.19951 of 2012 has passed order as follows:
"In compliance of the Interim Stay ordered by the Hon'ble High Court of Madras in the above writ petition, the selection of J. Saradhadevi, who is the 3rd respondent in the above writ petition, is recalled pending disposal of the above writ petition. Therefore, it is requested to issue suitable consequential orders, cancelling her appointment, pending disposal of the above writ petition, and communicate the copy of cancellation order to this Board immediately."
It is stated that the Hon'ble Court has passed final orders in W.P.No.19951/2012 dated 22.02.2018 as follows:
For the aforesaid reasons, the writ petition No. 19951 of 2012 is allowed. The respondent no.1 is directed to select the writ petitioner in the said post of B.T. Assistant Mathematics (Telugu) earmarked for MBC (General) (backlog) cancelling the impugned selection of the respondent No.3 and also necessary appointment order be issued to the petitioner by the respondent concerned, within a period of one month from the date of production / receipt of the copy of this order. So far as the writ petition No.11227 of 2014 filed by the respondent no.3 challenging the cancellation of her selection and appointment and relieve from the post vide the impugned orders are concerned, the same being devoid of merit stands dismissed. All the connected miscellaneous petitions are closed. No costs.
It is stated that since the impugned order passed by the Hon'ble http://www.judis.nic.in High Court in order dated 22.02.2018 in W.P.No.19951 of 2012 is not 26 feasible for compliance the Board filed Writ Appeal against the impugned order.
It is stated that meanwhile the petitioner filed Contempt Petition in C.P.No. 1989 of 2018 for non compliance of the orders of Hon'ble High Court made in W.P.No.19951 of 2012, dated 22.02.2018.
It is stated that as per the orders of the Court made in W.P.No.19951 of 2012 dated 22.02.2018 the Board complied with the order subject to outcome of the Writ Appeal filed against the impugned order with the following conditions.
The Hon'ble High Court in similar case in W.P.No.31274/2013, dated 25.10.2017 has passed orders as follows:
"The selection list dated 05.11.2012 clearly shows that the petitioner was selected as a second candidate immediately, after G.Dharanikota Srividhya. However, since G. Dharanikota Srividhya had secured employment by producing bogus community certificate and the same was also subsequently on 10.05.2015, on the basis of the complaint, given by the petitioner on 23.07.2012, in my considered opinion, since a conditional appointment order was passed by 3rd respondent by directing the said K. Dhananjayan to pass Teacher Eligibility Test within a period of 5 years and taking note of the order passed by this Court in W.P.No.21840 of 2012 dated 10.08.2012 and yet another order passed by this Court in W.P.No.9228 of 2013 dated 23.01.2015, the petitioner is also http://www.judis.nic.in entitled to be appointed with the same condition.27
Accordingly the respondents are directed to appoint the petitioner with a specific condition that she should pass the Teachers Eligibility Test on or before 31.03.2019 within a period of four weeks from the date of receipt of copy of this order."
The Petitioner relied on the orders made in the above W.P. and seek similar relief.
The Board considered the case of the petitioner based on the above order and accordingly the petitioner is provisionally selected for the post of B.T. Assistant (Mathematics) in MBC (G) turn forTelugu Medium and with the following conditions subject to the outcome of Writ Appeal filed against the impugned order:
The petitioner has to qualify in Teacher Eligibility Test before March 2019 as observed by the Hon'ble High Court in order dated 25.10.2017 in W.P.No.31274 of 2016 and W.M.P.No.2.7145 of 2016 and to submit the evaluation and equivalence orders for his educational qualifications that has been acquired by him in other state.
The petitioner produced B.Sc., degree certificate having studied three major subjects (viz.) Mathematics, Physics and Chemistry.
The Director of School Education is requested to verify the equivalence and all other certificates before issuing of appointment order.
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12. He has also joined duty, which is evident from the proceedings of the Headmaster (Incharge), Government Higher Secondary School, Thali, Krishnagiri District, dated 22.09.2018 and the same is extracted hereunder:-
mDg;gj[ y; bgWjy;
jpU/C/bt';fnlc&;bul;o M.sc.,M.Ed. Kjd;ikf; fy;tp mYtyh;.
jiyik Mrphpah; (bghWg;g)[ Kjd;ikf; fy;tp mYtyfk;.
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bghUs;: gs;spff; y;tp ? jpU/K.gpurhj; gl;ljhhp Mrphpah; (fzpjk;?bjY';F)?jkpHe; hL gs;spff; y;tp rhh;epiyg;gzp tHf;F vz;/W.P.No.19951/2012-22.02.2018 ehspll; jPhg; g; hiz 2010?11 Mk; Mz;L gl;ljhhp Mrphpah;fs ; ?rpWghz;ik ghlk; ? fzpjk; (bjY';F) ? Mrphpah; njh;t[ thhpaj;jpy; bjhpt[ bra;ag;gl;lth; neuo epakdk; K:yk; muR nky;epiyg; gs;sp jspapy; 22/09/2018 K/g/ gzpapy; nrh;eJ ; bfhz;l gzp nrh;gg; [ tptuk; mDg;gj[ y; rhh;g/[ ghh;it: fpUc&;zfphp Kjd;ikf; fy;tp mYtyhpd; bray;Kiwfs; e/f/vz;/05741-m2- 2018 ehs;: 20/09/2018/ nkw;fhz; bghUs;. ghh;it rhh;ghf jpU/K.gpurhj; gl;ljhhp Mrphpah; (fzpjk;?bjY';F) mth;fs;. Mrphpah; njh;t[ thhpaj;jhy; bjhpt[ bra;ag;gl;lth; neuo epakdk; K:yk; muR nky;epiyg; gs;sp jspapy; 22/09/2018 K/g/ gzpapy; nrh;eJ ; bfhz;lhh;
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gs;spapd; bgah; : muR nky;epiyg; gs;sp. jsp
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29
13. In the light of the above discussion and decisions, there is no merit in the writ appeal. Hence, Writ Appeal is dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.]
03.01.2019
Index : Yes/No.
Internet : Yes
Speaking/Non-speaking order
ars/dm
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S. MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
ars/dm
W.A.No.2775 of 2018
and
CMP No.22952 of 2018
03.01.2019
http://www.judis.nic.in