Madras High Court
S.Manikanda Prabu : Review vs B.Sivakami : 1St on 12 February, 2019
Author: N.Kirubakaran
Bench: N.Kirubakaran, S.S.Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 11.04.2019
Pronounced on: 20.08.2019
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Review Application (MD) Nos.70, 76 and 84 of 2019 and W.A.
(MD)Nos.13 to 18, 23 to 31, 55 to 60, 89 & 90, 150 & 151, 191 &
192, 232 to 252, 260 to 273, 309 to 319 of 2019 and connected
CMPs.
Rev. Aplc.(MD)No.70 of 2019
S.Manikanda Prabu : Review Petitioner/3rd Party
-Vs.
1.B.Sivakami : 1st Respondent/1st Respondent
2.The Teachers Recruitment Board,
Rep. by Chairman,
4th Floor, EVK Sampath Maligai,
DPI Compound, College Road,
Chennai – 600 006.
3.The Director of School Education,
O/o. The Director of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
4.The Regional Director,
National Council of Teacher Education (NCTE),
Jnanabharathi Campus Main Road,
Nagarabhavi,
Bangaluru – 560 072. : Respondents 2 to 4/
Respondents 2 to 4
5.K.Anandhakumar : Respondent No.5/
http://www.judis.nic.in
Appellant in Writ Appeal
2
Prayer : Review Application filed under Order 47, Rule 1 Civil
Procedure Code, praying to review the order passed in W.A.
(MD)No.176 of 2019, dated 12.02.2019.
For Petitioner : Mr.V.Vijay Shankar
for Mr.J.Lawrance
For Respondent 2 : Mr.V.R.Shanmuganathan
Special Government Pleader
For Respondents 3 : Mrs.S.Srimathi
Special Government Pleader
For Respondent 4 : Mr.Su.Srinivasan
***
COMMON ORDER
N.KIRUBAKARAN, J.
AND S.S.SUNDAR, J.
Since all these appeals and review petitions are connected, they are disposed of by this common order.
2.The Teachers Recruitment Board published a recruitment notification dated 26.07.2017 calling for application for direct recruitment to the post of Special Teacher (Physical Education, Drawing, Music and Sewing). By this recruitment notification, around 900 posts of Special Teacher (Physical Education) were notified. Written examination was conducted and certificate verification was also done. Thereafter, the Teachers Recruitment Board published the provisional selection list for http://www.judis.nic.in 3 the Special Teacher (Physical Education) containing 632 candidates. A batch of Writ Petitions were filed by one B.Sivakami and a few others in W.P.(MD)No.21650 to 21655, 21665, 21667, 21850 to 21852 and 23003 of 2018, challenging the rejection of their candidature to the post of Special Teacher (Physical Education) and the tentative provisional selection list of Special Teacher (Physical Education). It is admitted that Teachers Recruitment Board informed the Writ Petitioners that they were not selected as they do not possess required qualification.
3.The petitioners in the abovesaid Writ Petitions contended that their candidature had been arbitrarily rejected as if they do not have required qualification. It is the case of the Writ Petitioners that they possess the required qualification as per the recruitment notification dated 26.07.2017 issued by the Teachers Recruitment Board. The petitioners also contended that they were called for certificate verification based on their marks secured in the written examination and employment exchange seniority. It is contended by most of the Writ Petitioners that at the time of certificate verification, their candidature was accepted and they were informed that their http://www.judis.nic.in 4 qualification was in accordance with the requirements as per the recruitment notification. However, some of the Writ Petitioners admitted that some objections were raised at the time of certificate verification and that they have explained that the qualification they have acquired satisfy the requirement of recruitment notification.
4.The petitioners have acquired either C.P.Ed., or D.P.Ed., (Certificate in Physical Education (Higher Grade) or Diploma in Physical Education (Higher Grade)). It is the case of Writ Petitioners that Teachers Certificate of Higher Grade in Physical Education Course, namely, H.P.Ed., course (one year) was abolished in the year 2004 and that the State Government had re-designated the said course as Certificate Course in Physical Education (C.P.Ed.,). It was also contended that within one year later, the said certificate course known as Certificate Course in Physical Education (C.P.Ed.,) was re-designated as Diploma in Physical Education (D.P.Ed.,) which is a two year course. Since the earlier Course, namely, H.P.Ed., was abolished and its equivalent course C.P.Ed., was introduced later and the same was also re-designated as Diploma in Physical Education (D.P.Ed.,), it is contended that the names of the Writ Petitioners http://www.judis.nic.in 5 ought to have been included in the provisional selection list. It is stated that persons with lesser marks than the petitioners were included and the petitioners were not included in the selection list only on the ground that they do not possess required qualification. The petitioners have acquired either C.P.Ed., or D.P.Ed., which according to the petitioners are equivalent to H.P.Ed.
5.Accepting the plea of the Writ Petitioners that they have the prescribed qualification, the learned Single Judge of this Court further held that the infirmity in the recruitment notification in prescribing the educational qualification vitiates the whole precess of recruitment and that such an irregularity cannot be cured. The learned Single Judge observed that Government Teachers Certificate of Higher Grade in Physical Education is the required qualification only for Physical Education Teachers to be appointed at elementary school and that therefore, the notification specifying such qualification is ultra vires. With that view the learned Single Judge struck down the entire selection process initiated by the Teachers Recruitment Board insofar as the recruitment of Special Teacher (Physical Education). The Teachers Recruitment Board was http://www.judis.nic.in 6 given liberty to issue fresh notification in respect of Special Teacher (Physical Education) at all three levels, namely, Primary Schools, High Schools and Higher Secondary Schools.
6.A few persons who were not parties in the Writ Petitions preferred Writ Appeals in W.A.(MD)Nos.191 and 192 of 2019, W.A.(MD)Nos.260 to 273, 309 to 319 and 230 to 352 of 2019. The said appeals were filed by the candidates who were provisionally selected. In all the Writ Appeals preferred by the provisionally selected candidates, it was contended that there is no dispute with regard to the eligibility and educational qualification of those who have been provisionally selected and that the order of learned Single Judge striking down the entire process of selection is neither warranted nor appropriate. Since the provisionally selected candidates had already undergone the tedious recruitment process by writing written examination and attending certificate verification, the third party appellants submitted that the order of learned Single Judge undoing the whole process of selection is arbitrary and illegal. Some of the appellants who are third parties to the Writ Petitions which were disposed of by a common order dated 07.12.2018, further contended that the writ petitioners do not satisfy the http://www.judis.nic.in 7 qualifications prescribed as per the recruitment notification dated 26.07.2017. Having submitted to the selection process, it was contended by the appellants that the Writ Petitioners are estopped from challenging the qualification mentioned in the recruitment notification. It was also contended by the appellants in some of the Writ Appeals that the qualification for the Special Teacher (Physical Education) are governed by the Tamil Nadu Educational Subordinate Service Rules and that the qualification mentioned in the recruitment notification in terms of Rule 9, r/w. Annexure-II, cannot be altered in the recruitment notification and that the writ petitioners who do not satisfy the eligibility criteria as per Rule 9 r/w. Annexure II, has no locus standi to challenge the recruitment process. It is also contended that the writ petitioners, who have not acquired the equivalent qualification nor any certificate from competent authority to prove their qualification, cannot challenge the non-selection of the Writ Petitioners.
7.The Teachers Recruitment Board and the Director of School Education have jointly preferred Writ Appeals in W.A. (MD)Nos.13 to 18 of 2019, 55 to 60 and 89 & 90 of 2019 as against the common order passed by the learned Single Judge in http://www.judis.nic.in 8 the batch of Writ Petitions by order dated 07.12.2018. The Teachers Recruitment Board also supported the stand taken by the other appellants in the Writ Appeals who were provisionally selected pursuant to the recruitment notification. The Teachers Recruitment Board also has taken the stand that the petitioners in the Writ Petitions which were disposed of by a common order dated 07.12.2018, do not have the qualification as prescribed in the service rules. When the writ petitioners have not challenged the notification or the rules prescribing the qualification, it is contended by the Teachers Recruitment Board that the Writ Petitioners who are unsuccessful in getting selection cannot question the selection process. The Teachers Recruitment Board also contended that the Diploma in Physical Education of C.P.Ed., is not a prescribed qualification in the recruitment notification and that therefore, some of the Writ Petitioners who have Diploma in Physical Education (D.P.Ed.,) or C.P.Ed., with a duration of one year are not entitled to participate in the selection process. It was contended by the Teachers Recruitment Board that as per the recruitment notification, the petitioners should disclose their educational qualification as per the recruitment notification and that if they have a qualification with different nomenclature they must produce a certificate of http://www.judis.nic.in 9 equivalence. Since the Writ Petitioners have not produced the Government order declaring equivalence, it is contended by the Board that there is no scope for considering the candidature of Writ Petitioners. The Teachers Recruitment Board submitted that some of the Writ Petitioners who possessed only C.P.Ed., certificate for completing one year course in Karnataka is not equivalent to H.P.Ed., in Tamil Nadu and that therefore, the writ petitioners are not eligible. Stating that prescribing qualifications is the prerogative of the State and it must be left to the wisdom of experts, it is submitted that judicial review is limited. The Teachers Recruitment Board also contended that the recruitment notification is only for the post of Physical Education Teachers in schools having classes 6 to 10 or 9 and 10 and governed by Tamil Nadu School Education Subordinate Service Rules and not for the post at elementary school level. The Board further contended that the recruitment in respect of Primary Schools is governed by different rules and it is not the subject matter of the lis or the controversy to which the parties are at issue. They also submitted that the qualification prescribed in the notification is in tune with the recruitment rules and hence, the order of learned Judge striking down the notification is unsustainable.
http://www.judis.nic.in 10
8.The petitioners in the Writ Petitions which were disposed of by the learned Single Judge of this Court by order dated 07.12.2018 have also preferred Writ Appeals in W.A.(MD)Nos.23 to 31 of 2019 and 150 and 151 of 2019 and contended that in stead of quashing the entire selection process, the learned Single Judge ought to have directed the Teachers Recruitment Board to conduct fresh certificate verification.
9.Apart from the appeals above referred to, few more appeals were filed against the common order in W.P.(MD)Nos. 21650 of 2018, dated 07.12.2018 in W.A.(MD)Nos. 65 to 67, 69, 70, 94, 109, 110, 153, 175 and 176 of 2019. These batch of appeals were also preferred by third parties to the batch of Writ Petitions. The grievance of the appellants in the said appeals was that the post of Special Teacher (Physical Education) is governed by the Tamil Nadu Educational Subordinate Service Rules and that the qualifications of the appellants which is not disputed by the Writ Petitioners was not an issue in the Writ Petitions and that therefore, the learned Single Judge ought not to have quashed the entire selection process. It was based on the representations and arguments of Counsels of all the parties, http://www.judis.nic.in 11 namely, the appellants, contesting respondents and the Teachers Recruitment Board, this Court disposed of a batch of Writ Appeals filed by candidates who were provisionally selected on 12.02.2019 by the following order:
“3.It is not in dispute that the appellants in the above appeals have got the prescribed qualification and they were selected through competitive examination. It is admitted that certificate verification has been done in respect of these appellants. However, by virtue of the common order passed in W.P.(MD) No.21650 of 2018 etc. batch, in the case of B.Sivakami v. Teachers Recruitment Board and others dated 07.12.2018, the entire selection process pursuant to the recruitment notification was quashed. It is pertinent to mention that the writ petitions were filed only to direct the Teachers Recruitment Board to consider the candidature of the writ petitioners.
4.The unfortunate situation here is that the common order of the learned Single Judge dated 07.12.2018, which is the subject matter of these Writ Appeals, is not only challenged by the appellants in these writ appeals who are not parties in the writ petitions but also the writ petitioners and respondents in the writ petitions. As a result, we could see that the order of the learned Single Judge is not acceptable to any one. The learned counsel appearing for the private respondents/writ petitioners and the learned Special Government Pleader appearing for the Teachers Recruitment Board and the Director of School Education/Respondents 1 & 2 and the learned counsel for National Council of Teachers Education (NCTE)/ 3rd Respondent have admitted that they do not dispute the qualifications of the appellants in these appeals and their selection. In such circumstances, this Court is of the view that the further proceedings pursuant to the selection of appellants in all these appeals need not wait till the decision is taken in other writ appeals. Since the appellants and respondents in the appeals have agreed that the recruitment notification itself should not have been set aside by the learned Single Judge, this Court is of the view that the judgment of learned Single Judge http://www.judis.nic.in striking down the entire selection process is neither 12 warranted nor sustainable. We find no reason for staying the appointment of appellants as there are vacancies to accommodate writ petitions if they succeed in other appeals.
5.Hence, these Writ Appeals are allowed and disposed of with the following directions:
(i) The appellants in these appeals i.e., the selected candidates are entitled to get appointment as per recruitment notification.
(ii) The official respondents shall proceed further with the process of appointment in the manner known to law as their appointments will not be subject to the out come of connected writ appeals pending before this Court.
(iii) This exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order.
(iv) The writ appeals filed by the writ petitioners (who have not been selected) and the State will be dealt with separately.”
10.Aggrieved by the order passed in the batch of Writ Appeals above referred to, by order dated 12.02.2019, a few applications in Rev.Aplc.(MD) Nos.70, 76 and 84 of 2019 were filed by the respective petitioners who are not parties in any of the batch of appeals disposed of by this Court by order dated 12.09.2019. The review petitioners in the review petitions contended that the review petitioners had secured more marks in the written examinations and have acquired higher qualification than the provisionally selected candidates. It was further contended that there are only 663 vacancies and nearly 112 vacancies are reserved for priority candidates. It is in the http://www.judis.nic.in 13 said circumstances, the review petitioners raised a doubt as to the probability of review petitioners getting posting/placement as per their choice even if they get appointment later. The petitioner in Review Petition No.70 of 2019 submitted that the official respondents are estopped from contending that the certificate course undergone by them is not equivalent and that more than 100 persons with the same qualification have been appointed as Physical Education Teacher earlier pursuant to similar recruitment notification. It is contended by the review petitioners that this Court would not have passed the order on 12.02.2019, if the review petitioners were also heard.
Considering the grievance of the review petitioners in the review petitions, this Court is convinced that the review petitions can be entertained and all the writ appeals which are disposed of by our common order dated 12.02.2019 will be re-heard in terms of Order 47, Rule 8 C.P.C. Therefore, Writ Appeal (MD) Nos.65 to 67, 69, 70, 94, 109, 110, 153, 170 of 2019 are also heard along with other cases in view of the scope of the review petitions especially when the review petitions were filed by the persons who were not parties to the original order and they were permitted to file the review as the order impugned in the review petitions is likely to affect the interest of the petitioners in the http://www.judis.nic.in 14 Review Applications.
11.After the disposal of the batch of Writ Appeals by order dated 12.02.2019, this Court by order dated 12.02.2019, passed in the connected appeals directed the Government to constitute an equivalence committee so as to find whether the Diploma acquired by the Writ Petitioners can be declared equivalent to the qualification referred to in the recruitment notification as well as the service rules. This Court while passing the order dated 12.02.2019 in W.A.(MD)Nos.13 to 18 of 2019 and batch of cases, directed the Equivalence Committee to consider various Government Orders and notifications. The substance of the order dated 12.02.2019 in W.A.(MD)No. 13 to 18 of 2019 and batch, is reproduced for convenience:
“3.The learned Special Government Pleader submitted that the Government may be directed to consider the claim of these candidates appellants while considering the issue “whether Diploma or Certificate obtained by them is equivalent to the qualification prescribed in the recruitment Notification as well as in the Service Rule”.
4.The Government is directed to constitute an Equivalence Committee so as to find whether the diploma acquired by writ petitioners can be declared equivalent to the qualification referred in the Notification as well as in the Service Rules.
While deciding the issue, the Equivalence Committee is also directed to consider (i) http://www.judis.nic.in G.O.Ms.No.126, School Education Department, 15 dated 13.11.2003; (ii) Notification issued by the National Council for Technical Education (NCTE), dated 12.12.2014; (iii) G.O.Ms.No.241, dated 27.11.2006; (iv) G.O.I.D.No.34, Education Department, dated 10.03.2004 and the University Grants Commission notification dated 05.06.2014.”
12.It is pertinent to mention that the above direction was issued in the batch of Writ Appeals filed by the Teachers Recruitment Board challenging the common order passed by the learned Single Judge in W.P.(MD)Nos.21650 of 2018, dated 07.12.2018. However, we are informed that no decision is taken by Government.
13.The main issue that arise for consideration in all these cases is whether the petitioners in the batch of Writ Petitions as well as the petitioners in the review petitions possess the required qualification for the post of Special Teacher (Physical Education) as per the requirement notification dated 26.07.2017. It is not in dispute that by notification vide No.5/17, dated 26.07.2017, the Teachers Recruitment Board invited application from eligible candidates for the post of Special Teacher (Physical Education, Drawing, Music and Sewing). The cases which are now disposed of by this Common Order is only relating to the recruitment to the post of Special Teacher (Physical Education) and this Court is not concerned about the http://www.judis.nic.in 16 other category of Special Teachers. Pursuant to the recruitment notification dated 26.07.2017, written examinations were conducted. Results of the written examinations were also published on 14.06.2018. It is admitted that certificate verification was also held on 13.08.2018 inviting all the writ petitioners and others who have participated in the selection process including the petitioners in the Writ Petition as well as in the Review Applications. The provisional selection list was published on 12.10.2018. The petitioners in the batch of Writ Petitions disposed of by the learned Single Judge of this Court by order dated 07.12.2018, were not included in the selection list that was published. The first batch of Writ Petitions were therefore, filed by the persons whose names were not included in the selection list. The individual communication sent to them would reveal that Teachers Recruitment Board has turned down their candidature only on the ground that they do not possess the prescribed qualification.
14.As per the recruitment notification, the qualification prescribed for the post of Special Teacher (Physical Education) are as follows:
http://www.judis.nic.in 17 PHYSICAL 1. General Educational Qualification: S.S.L.C./Higher EDUCATION Secondary TEACHER
2.Technical qualification
(i) a) Pass in Pre University: or Higher Secondary: or Teachers School Leaving Certificate (Secondary Grade or Senior Basic) and
b) Government Teachers Certificate of Higher Grade in Physical Education or
(ii) a) Pass in Secondary School Leaving Certificate (SSLC) and
b) Government Teachers Certificate of Lower Grade in Physical Education.
Or
(iii) A Bachelor degree in Physical Education (B.P.Ed.)
(iv) A Bachelor degree in Physical Education and Sports (B.P.E.S.) offered by the YMCA College of Physical Education, Chennai or a qualification equivalent thereto or
(v) A Master Degree in Physical Education and Sports offered by Annamalai University (directly acquired M.P.E.S. without the degree of B.P.E.S) or
(vi) A Bachelor Degree in Mobility Science for the Disabled (B.M.S) offered by the YMCA College of Physical Education, Chennai and other similar colleges teaching Physical Education.
Or
(vii) A Master degree in Physical Education (M.P.Ed) whether acquired through regular course or directly acquired without acquiring a Bachelor degree in Physical Education (B.P.Ed.,)
15.It is not in dispute that the qualifications prescribed in the recruitment notification is in tune with the service rules. The question is whether the petitioners in the Writ Petitions and http://www.judis.nic.in 18 the petitioners in the Review Applications who have challenged their non-selection are eligible by satisfying the qualifications prescribed for the post of Special Teacher (Physical Education).
16.There is no dispute that the Writ Petitioners have the general educational qualification. As per the recruitment notification, the candidates should possess Government Teachers Certificate of Higher Grade in Physical Education or a bachelor degree in physical education (B.P.Ed.) or a bachelor degree in Physical Education and Sports (B.P.E.S) offered by the Y.M.C.A. College of Physical Education, Chennai or a qualification equivalent thereto as has been referred to as required qualification. A master degree in physical education and sports offered by Annamalai University or a bachelor degree in Mobility Science for the disabled (B.M.S.) offered by the YMCA College of Physical Education, Chennai and Master degree in Physical Education (M.P.Ed.) whether acquired through regular or directly without acquiring a bachelor degree in Physical Education were also shown as technical qualification. It is contended by the petitioners in the Writ Petitions that the course known as H.P.Ed. with one year duration (Teachers Certificate of Higher Grade in Physical Education) was abolished http://www.judis.nic.in 19 in the year 2004 itself and the Government re-designated the said course as Certificate Course in Physical Education (C.P.Ed,.) It is further stated that within a year, the Government again re-designated the certificate course as a Diploma Course, namely, (D.P.Ed). Since H.P.Ed., course itself was abolished in 2004 and the said course was re-designated as C.P.Ed., and later as D.P.Ed., it is contended that the persons possessing C.P.Ed., or D.P.Ed., should be considered eligible as equivalent to H.P.Ed.
17.The learned Counsel appearing for the writ petitioners, review petitioners and some of the appellants who have taken a stand of the Writ Petitioners submitted that H.P.Ed., course with a duration of one year is the Government Teachers Certificate of Higher Grade in Physical Education specified in the Recruitment Rules and the impugned notification. There is no dispute that H.P.Ed., is recognised as a course to satisfy the educational qualification of any candidates aspiring the post of Physical Education Teacher. It is further stated that this one year course was scrapped from the Academic year 2004-2005 and introduced C.P.Ed., course with two year duration as per Government Order vide G.O.Ms.No.126, dated 13.11.2003. Since H.P.Ed., course http://www.judis.nic.in 20 was re-designated as C.P.Ed., and C.P.Ed., was subsequently converted as D.P.Ed., by Government Order dated 17.02.2004, the learned Counsels appearing for the Writ Petitioners and petitioners in the review applications submitted that the Writ Petitioners who have acquired C.P.Ed., or Diploma in Physical Education (D.P.Ed.,) cannot be disqualified for the post of Special Teacher (Physical Education).
18.The learned Counsels appearing for the petitioners submitted that several persons with one year certificate course obtained from Karnataka University have all along been recruited without any issues. It is also brought to the notice of this Court that similar recruitment notification was issued in the year 2011 prescribing same qualification of Physical Education Teacher. Though C.P.Ed., was not referred to as one of the qualifications, the candidates who possessed C.P.Ed., certificate (with one year duration) obtained from Karnataka University were recruited. It is asserted by the learned Counsels appearing for the Writ Petitioners in the Writ as well as in the review applications that more than 98 selected members who have the certificate in C.P.Ed., with one year are in service. The counsel appearing in one of the Review Petition has filed a paper book http://www.judis.nic.in 21 containing the information obtained under Right To Information Act to show nearly about 100 persons with C.P.Ed., qualification appointed earlier are working as Physical Education Teachers in different parts of the State.
19.Though the learned Special Government Pleader appearing for the Teachers Recruitment Board submitted that though H.P.Ed., course with one year duration was abandoned earlier in 2004 and C.P.Ed., was introduced and then converted to D.P.Ed., with two years duration, the petitioners cannot presume that the persons who have acquired C.P.Ed., or D.P.Ed., are eligible. The learned Special Government Pleader would suggest that the present notification has been issued to exclude C.P.Ed., or D.P.Ed., qualified persons consciously. Therefore, it is contended that the persons with C.P.Ed., or D.P.Ed., qualification are not eligible as per the impugned recruitment notification.
20.The learned Counsels appearing for the petitioners demonstrated before this Court that during the previous recruitment in 2011, though C.P.Ed., and D.P.Ed., was not referred to as an eligible qualification and same qualification as http://www.judis.nic.in 22 it is shown in the 2017 notification was prescribed, candidates who possessed C.P.Ed., a certificate course (one year) obtained from Karnataka University were recruited and the respondents have not disputed the statement of Counsel for petitioners and Review Petitioners that nearly 100 candidates having C.P.Ed., certificate obtained from Karnataka were recruited to the post of Physical Education Teacher and are working. As per the recruitment notification dated 26.07.2017, Government Teachers Certificate of Higher Grade or lower Grade in Physical Education are also prescribed as a qualification for Physical Education Teacher. H.P.Ed., is a certificate course and the official respondents have admitted before the learned Single Judge that candidates with H.P.Ed., qualification are eligible. Even before this Court, it is only contended that C.P.Ed., or D.P.Ed., is not equivalent to H.P.Ed. In the State of Tamil Nadu, the duration of H.P.Ed., Certificate Course in Physical Education is one year. The Government scrapped one year H.P.Ed., course with effect from 2004-2005 and introduced two year C.P.Ed., course as per G.O.Ms.No.126, dated 13.11.2003. It is admitted that later C.P.Ed., course was converted as D.P.Ed., with two year duration. In this background, the contention of Teachers Recruitment Board that C.P.Ed., and D.P.Ed., holders are not http://www.judis.nic.in 23 eligible cannot be countenanced. It is also admitted that with the same qualification prescribed in 2011, Teachers Recruitment Board had recruited persons with C.P.Ed., (obtained in Karnataka with one year duration) without any objection. Petitioners in the Writ Petitions (which are disposed of by learned Judge by order dated 07.12.2018) have acquired either C.P.Ed., or D.P.Ed., one of them have possessed B.P.Ed., and M.P.Ed. The learned Judge is right in holding that the petitioners are justified in presuming that their educational qualification is equivalent to the abolished Government Teachers Certificate of Higher Grade in physical Education, i.e., H.P.Ed. As pointed out earlier candidates with C.P.Ed., and D.P.Ed., qualifications were recruited pursuant to 2011 notification prescribing the same eligibility criteria. It is also admitted that the Government have given certificate of equivalence. The additional qualification B.P.E., degree course with duration of 3 years is equivalent to B.P.E.S., which is stated to be a prescribed qualification in the notification. The petitioner in one Writ Petition has produced the course and efficiency certificate issued by the YMCA College of Physical Education, Nandanam, Chennai, which reveals that the course which was known as Bachelor of Physical Education and Sports (B.P.E.S.) earlier has http://www.judis.nic.in 24 now become Bachelor of Physical Education (B.P.E) from 2007. The course content and theory subject are identical. Hence, we have no hesitation to hold that all the Writ Petitioners are possessing qualification required as per the notification and that they are eligible to get appointment along with selected candidates whose names had already been published.
21.It is to be seen that as per G.O.Ms.No.126, dated 13.11.2003, the intention of the State was to switch over to the two year C.P.Ed., course as the National Council for Teacher Education has determined the qualification for recruitment of Physical Education Teacher as “Certificate in Physical Education” (C.P.Ed.,) of a duration of not less than two years or its equivalent. It was, therefore, H.P.Ed., was scrapped and C.P.Ed., course with two year duration was introduced. C.P.Ed., with two year duration was later converted as D.P.Ed., with two year duration. Question is whether person with a certificate “C.P.Ed.,” with one year duration obtained from Karnataka University is eligible. Though the State Government scrapped H.P.Ed., course with one year and introduced C.P.Ed., course with two year course, the Service Rules were not amended to exclude H.P.Ed., with one year duration. The recruitment http://www.judis.nic.in 25 notifications in 2011 and now in 2017 were issued based on the qualifications prescribed under the Tamil Nadu Education Subordinate Service Rules, 1985 vide Rule 9 read with Annexure-II. It is admitted that pursuant to earlier recruitment notification in 2011 candidates with C.P.Ed., course obtained from Karnataka University were also treated as eligible and the certificate “C.P.Ed.,” (with one year) was declared equivalent to H.P.Ed. The Service Rules ought to have been amended by prescribing Certificate in Physical Education (C.P.Ed.,) with two year duration or D.P.Ed., with two year duration as the eligible qualification in stead of Government Teachers' Certificate of Higher Grade in Physical Education, (i.e., H.P.Ed.,). Most of the petitioners have acquired D.P.Ed., (Two year duration). When H.P.Ed., with one year duration is accepted as an eligible qualification, there is no rhyme or reason to reject the candidature of persons with C.P.Ed., (two year course) and D.P.Ed., with (two years) as these courses were introduced after scrapping one year H.P.Ed., course.
22.As far as persons with C.P.Ed., (one year) course obtained from Karnataka University are concerned, the Government and Teachers Recruitment Board recognised them http://www.judis.nic.in 26 as persons having the certificate equivalent to H.P.Ed., during the previous recruitments prescribing the same qualification. As a matter of fact, both persons having H.P.Ed., (one year) and C.P.Ed., (one year) are not eligible as per the notification issued by National Council for Teacher Education (NCTE). The Government failed to adhere to the norms prescribed by NCTE by amending the service rules. Unfortunately, the recruitment notification was not challenged. The Service Rules prescribing Certificate of Physical Education of Higher Grade still continue and no one has challenged. The appointment of candidates with H.P.Ed., is not challenged. The petitioners have not impleaded any one of the selected candidates with H.P.Ed., in the Writ Petitions. Hence, this Court is not inclined to disturb the selection of candidates with H.P.Ed., (one year course). This Court is also of the view that the Government and Teachers Recruitment Board are estopped from contending that persons with C.P.Ed., (one year) obtained from Karnataka University are not eligible as the Government has not amended Service Rules and the Government had declared C.P.Ed., (with one year) obtained from Karnataka University as equivalent to H.P.Ed., pursuant to the previous notification prescribing the same qualification. In all the on-line applications submitted by http://www.judis.nic.in 27 petitioners, they have stated that they have the qualification by possessing Government Teachers Certificate of Higher Grade in Physical Education or a Bachelor degree in Physical Education and Sports (B.P.E.S). We have already held that B.P.E.S., has now been changed to B.P.E. with same course content and duration. Considering the specific stand of official respondents to contend that H.P.Ed., certificate holder is eligible and the facts discussed above, this Court is of the view that for the same reasons for which the Government and Teachers Recruitment Board have decided to appoint persons having H.P.Ed., with one year duration, the petitioners with C.P.Ed., with one year or two year duration and D.P.Ed., with two year duration are eligible to be appointed as Physical Education Teachers in schools. The learned Single Judge though has observed that one of the petitioner with C.P.Ed., offered by Karnataka University has no reason to question the rejection of her candidature, has failed to consider the equivalence declared by Government and the fact that H.P.Ed., course offered in the State was only with a duration of one year and the official respondents have approved H.P.Ed., as a recognised qualification and that the service rules are not amended in tune with the qualification prescribed by NCTE or the Government orders.
http://www.judis.nic.in 28
23.The next question is whether it is necessary to strike down the entire selection process and the recruitment notification No.05/2017, dated 26.07.2017. It is to be seen that as against that portion of the order striking down the selection process and recruitment notification, the petitioners in all the Writ Petitions, Teachers Recruitment Board and the candidates who were already recruited have a common grievance and every one of them in one voice submitted that the learned Single Judge ought not to have disturbed the selection process already undertaken. No one has challenged the process of selection or the recruitment notification or the Service Rules. None of the selected candidates were impleaded in the Writ Petition. Without impleading them, an issue relating to their eligibility cannot be decided. The Government cannot discriminate its citizens whimsically unless there are strong reasons to differentiate. No reason is given by official respondents not to apply the same yardstick to people with C.P.Ed., as it was applied to persons with H.P.Ed., certificate especially when H.P.Ed., course was scrapped pursuant to NCTE guidelines. The learned Single Judge has not elaborated any serious infirmity in the recruitment notification in prescribing the educational http://www.judis.nic.in 29 qualification. The decision of Government and Teachers Recruitment Board to appoint candidates with H.P.Ed., is very firm, though the course was scrapped. When the recruitment notification or the Service Rules are not challenged and none of the selected candidates were made parties to the Writ Petition, the learned Single Judge ought not to have struck down the selection process. Hence, this Court set aside the order of learned Single Judge insofar as it relates to striking down the entire selection process and the recruitment notification dated 26.07.2017. However, this Court direct the State Government to incorporate necessary amendments in the Service Rules, namely, Tamil Nadu Education Subordinate Service Rules in tune with the eligibility criteria prescribed by NCTE and by considering the change in nomenclature of courses and their equivalence so that future recruitments will be in strict adherence with NCTE norms and free from unnecessary complications paving way for unwanted litigations and unwanted delay.
24.As a result, the Writ Appeals filed by the Writ Petitioners are allowed and all the Writ Petitions which are disposed of by the common order dated 07.12.2018 in the matter of Sivakami and other Writ Petitioners filed against Teachers http://www.judis.nic.in 30 Recruitment Board and others are allowed. The Teachers Recruitment Board is directed to treat all the petitioners as eligible, having prescribed qualification for the post of Physical Education Teachers as per the recruitment notification dated 26.07.2017. The Teachers Recruitment Board is directed to consider the candidatures of petitioners along with selected candidates and appoint them to the post of Special Teacher (Physical Education) if they are otherwise eligible on merits among the persons qualified. This order cannot be taken advantage of by other candidates who have not come forward to challenge their non-selection. The Review Petitions are allowed and the Common Order impugned in the Review Petitions is recalled and treated as modified in terms of this order. All the Writ Appeals filed by Teachers Recruitment Board and Director of School Education and other Writ Appeals filed by selected candidates and third parties to the Writ Petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
(N.K.K.,J.) (S.S.S.R.,J.)
20-08-2019
Index : Yes / No
Internet : Yes / No
srm
http://www.judis.nic.in
31
To
1.The Chairman,
Teachers Recruitment Board,
4th Floor, EVK Sampath Maligai,
DPI Compound, College Road,
Chennai – 600 006.
2.The Director of School Education,
O/o. The Director of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
3.The Regional Director,
National Council of Teacher Education (NCTE), Jnanabharathi Campus Main Road, Nagarabhavi, Bangaluru – 560 072.
http://www.judis.nic.in 32 N.KIRUBAKARAN, J AND S.S.SUNDAR, J.
SRM Judgment in Review Application (MD) Nos.70, 76 and 84 of 2019 and W.A.(MD)Nos.13 to 18, 23 to 31, 55 to 60, 89 & 90, 150 & 151, 191 & 192, 232 to 252, 260 to 273, 309 to 319 of 2019 and connected CMPs.
20.08.2019 http://www.judis.nic.in