Madras High Court
The Teachers Recruitment Board vs Malkiat Singh (2005 (9) Scc 22)
Author: P.N. Prakash
Bench: P.N. Prakash, P. Velmurugan
Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
RESERVED ON 25.07.2022
DELIVERED ON 23.08.2022
CORAM:
THE HON’BLE MR. JUSTICE P.N. PRAKASH
and
THE HON’BLE MR. JUSTICE P. VELMURUGAN
Review Petition (MD) Nos.14 &15/2022 in W.A.(MD) Nos. 822 & 823/2017
&
C.M.P. (MD) Nos.447 and 448 of 2022 (Stay Petitions)
Rev. Petn. (MD) No.14 of 2022:
The Teachers Recruitment Board
Rep. by its Member Secretary
E.V.K.Sampath Maligai
College Road
Chennai Petitioner/Appellant
v
1. P.Elangovan
2. The District Employment Officer
O/o. District Employment Office
Theni District
Theni Respondents/Respondents
Rev. Petn. (MD) No.15 of 2022:
The Teachers Recruitment Board
Rep. by its Member Secretary
E.V.K.Sampath Maligai
College Road, Chennai Petitioner/Appellant
v
Page 1 of 14
https://www.mhc.tn.gov.in/judis
Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017
1. S. Marimuthu
2. The District Employment Officer
O/o. District Employment Office
Theni District
Theni Respondents/Respondents
Prayer in Review Petition (MD) No. 14 of 2022:
Review Petition under XLVII, Rules 1 and 2, C.P.C. read with Section 114,
C.P.C., to review the order dated 29.06.2017 passed in W.A.(MD) No.822 of
2017.
Prayer in Review Petition(MD) No. 15 of 2022:
Review Petition under XLVII, Rules 1 and 2, C.P.C. read with Section 114,
C.P.C., to review the order dated 29.06.2017 passed in W.A.(MD) No.823 of
2017.
For petitioners in
both review petitions Mr. V.R. Shanmuganathan
For R1 in Mr. S. Mohamed Suhail
both review petitions for M/s. Ajmal Associates
COMMON ORDER
P.N. PRAKASH, J.
Heard the learned counsel for the respective parties. 2 The instant two review petitions have been filed by the Teachers Recruitment Board (for short “the TRB”) seeking to review the common order Page 2 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 dated 29.06.2017 passed by a Division Bench of this Court in W.A.(MD)Nos.822 and 823 of 2017 respectively, in and by which, the common order dated 02.12.2014 passed by a learned single judge of this Court in W.P.(MD) Nos.11771 and 11800 of 2010 was confirmed and the writ appeals dismissed.
3 Since the judgment of the Division Bench did not assign any special reason and merely affirmed the order of the Single Bench, it is necessary to refer to the order passed by the Single Bench while considering these review petitions.
4 The two writ petitions were filed by the private respondents herein who were aggrieved by an order dated nil issued by the TRB. The TRB did not give any details regarding the order allegedly impugned in the writ petitions. On the other hand, the order which the private respondents challenged before the Single Bench was issued by the TRB calling for the list of candidates for certificate verification in respect of direct recruitment of graduate assistants for Government Middle / High / Higher Secondary School for the year 2009-2010 through the employment registration seniority and it is dated 03.05.2010. As seen from the records, the private respondents did not give the list of candidates who Page 3 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 were called for certificate verification and did not make them parties even in a representative capacity, as provided in the rules.
5 Before the Single Bench, the private respondents, besides seeking quashment of the alleged impugned order, sought a further direction to the TRB for appointing them in the post of Graduate Assistants (Tamil) in respect of the year 2009-2010, by taking into account their employment exchange seniority.
6 It must also be noted that the mode of recruitment of Graduate Assistants was changed from the year 2011-2012 and the recruitments were done by the TRB after the candidates were made to undergo the Teacher Eligibility Test (TET). In view of the changed procedure, the seniority with the employment exchange became insignificant and these two petitions belonged to a vanishing tribe. May be, after the success of these two private respondents, there may be similarly placed persons who may also approach the Court based on the relief given for them. Therefore, it becomes all the more necessary to test the legal right of the private respondents.
Page 4 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 7 As it had been the practice in those days, most of the candidates acquired different degrees and qualifications even while their names were registered with the employment exchange and on instalments, they got their qualifications updated. In fact, as in the present case, many of the candidates first passed and got an M.A. degree and thereafter, did several other undergraduate degree courses either on regular basis or under correspondence stream.
8 Commenting on the state of affairs, Justice V.Ramasubramanian (as he then was), in his own inimitable style, made the following remark in his decision in G.Bappudurai v The Registrar, Tamil Nadu Dr.Ambedkar Law University [2015 (1) CWC 514]:-
“When the expression "degree" was defined in the statutes, the law makers never imagined the kind of inventions that could happen in the field of education, entitling people to acquire all qualifications in the reverse or perverse order. At the time when the expression "degree" was defined in the Statute, people would have honestly believed that a student would undertake a journey from the first standard up to the school final in a sequence and thereafter undergo the entire duration of the degree course. No one would have ever imagined even in the wildest of dreams at that time, that people may acquire a Post Graduate Degree first, followed by an Under Graduate Degree and thereafter complete the Higher Secondary Course, eventually to go to a Kindergarten. Even in the matter of wearing costumes, we follow a particular order. The only exception to this is that of the Superman. People who complete educational courses in the reverse order can only be compared to Superman, the comic book hero.”
9 In the present case, Elangovan, the private respondent in Review Petition (MD) No.14 of 2022, acquired the following qualifications:- Page 5 of 14
https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 B.Sc. Economics 1989 M.A. (Tamil) 1991 B.Ed. 1993 B.A., Tamil 2005 B.A., English 2010
10 Similarly, Marimuthu, the private respondent Review Petition (MD) No.15 of 2022, acquired the following qualifications:-
B.A. Economics 1983
M.A.(Tamil) 1985
B.Ed.Tamil 1993
B.A., Tamil 2007
11 The Government of Tamil Nadu, by G.O.(Ms) No.753, Education
Department dated 16.07.1985, prescribed qualification for direct recruitment for the post of Graduate Assistant in Tamil as follows:-
“A degree of a University in the state in the language in respect of which recruitment is necessary” 12 As per the details culled out above, the private respondents acquired B.A. (Tamil) only in 2005 and 2007 respectively. The recruitment at that point of time was based on the seniority of registration in the employment exchange. The Page 6 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 cut off date of the employment exchange seniority of the last candidate selected for the MBC (General) candidate in Graduate Assistant (Tamil) for the year 2009-2010 was 23.08.1994. Similarly, the employment registration seniority of the last candidate selected for the Scheduled Caste (General) for Graduate Assistant (Tamil) for the year 2009-2010 was 30.12.1996. Admittedly, both the private respondents did not have the necessary qualification on the cut off date prescribed in respect of both communal roster.
13 Notwithstanding their lack of qualification, their names were sponsored by the respective employment exchanges and they had participated in the certificate verification also. However, it must be noted that mere participation in the certificate verification would not confer any right of appointment. Even recently, the Supreme Court, in the Commissioner of Police v Umesh Kumar [(2020) 10 SCC 448], held as follows:-
“The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh (2005 (9) SCC 22), this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment.” Page 7 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 14 However, notwithstanding the fact that the private respondents have acquired qualification much later, the Single Bench and the Division Bench (whose order is under review), have concurrently held that, on the day when their names were sponsored, they had the necessary qualifications prescribed and therefore, their claims ought to have been considered. It is necessary to refer to the relevant passages from the orders of the Single Bench and the Division Bench which are as follows:-
(Common order dated 02.12.2014 in W.P.(MD) No.11771 and 11800 of 2010) “The same issue fell for consideration before the Brother Judge of this court in (2014) 6 MLJ 232 in P.Baskaran Vs. Teachers Recruitment Board, represented by Member-Secretary, College Road, Chennai and Another as to whether the crucial date for possession of the qualification is as to when the recruitment taken place. The learned Brother Judge has in paragraph No.4 is pleased to hold that the relevant date is the date, when the department called for names from the Employment Exchange and not otherwise.
This Court is in full agreement with the view expressed by the learned Brother Judge in the judgment above cited. As the eligibility criteria is to be considered only at the time of calling for interview non-possession of the educational qualification on the date of registration for employment in the employment exchange and the possession of the same subsequent to that date cannot be ground to deny the selection to the post in question and the impugned order passed on such sole ground is hence arbitrary and is liable to be quashed.” (Common Order dated 29.06.2017 in W.A.(MD) No. 822 and 823 of 2017) “The Writ Court took into consideration an earlier order passed by this Court in P.Baskaran Vs. Teachers Recruitment Board, represented by Member- Secretary (2014) 6 MLJ 232 and also the case of one Ramasubbu, who was also a similarly placed person as that of the 1st respondent / writ petitioners, who did not possess the requisite qualification on the cut of date but acquired the required qualification on the date when the list was sponsored by the appellant.Page 8 of 14
https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 It is pointed out by the learned Additional Government Pleader appearing for the appellant that the said Ramasubbu was considered for selection under a different category as he belongs to Scheduled Cast Community.
However, the question is whether Ramasubbu could have been considered when he did not have the requisite qualification as on the cut of date, namely, 23.08.1994, but only acquired the qualification only in April 2006. This alone is the point to be considered and not the category under the said candidate was selected. Thus, the view taken by the learned Single Judge following an earlier decision does not call for any interference.” 15 As both the Single Bench and Division Bench have largely relied upon the decision of an order passed by another Single Bench in P.Baskaran v Teachers Recruitment Board [2014 (6) MLJ 232], it has to be seen whether the said Single Bench has given any new reasons for deviating from the regular practice adopted by the TRB in getting names sponsored by the employment exchange or whether the relief granted by the said Single Bench was confined to the facts of that case. In P.Baskaran (supra), the Single Bench had observed as follows:-
“The crucial date for possession of the qualification is when the recruitment took place to the post of P.G.Assistant (Tamil). The entire process started as per the call letter dated 23.12.2011 is after the issuance of G.O.Ms.No. 152, School Education (Budget.2) Department, dated 03.06.2010 and the subsequent letter of the Government dated 25.10.2011 and the letter dated 18.02.2011 of the Employment Exchange. All those dates are subsequent to passing of Degree in Tamil by the petitioner. Therefore, when the recruitment took place for the post of P.G.Assistant (Tamil), the petitioner was qualified for the said post and in fact, the petitioner was directed to appear for certificate verification. The only reason for non-selection is that he completed B.Lit (Tamil) in 2010 and not when he registered his name in the Employment Exchange. In my view, that may be not be relevant. The relevant date is the date, Page 9 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 when the department called for names from the Employment Exchange for the post of P.G.Assistant (Tamil).
Further, it is not the case of the respondents that the petitioner did not register in the Employment Exchange and that he did not possess the requisite qualification. That is, if he did not possess B.Lit (Tamil), he is not eligible for appointment. Since the eligibility for the post of P.G.Assistant (Tamil) in U.G. in Tamil and P.G.in Tamil, besides passing B.Ed., the petitioner possesses all the requisite qualification. Admittedly, he registered in the employment exchange in 1993 itself. Hence, I am of the view that the petitioner cannot be denied the post of P.G.Assistant (Tamil) on the ground as stated in the impugned order. Hence, the impugned order is liable to be quashed.” (Emphasis added) 16 Therefore, the fact situation in P. Baskaran, supra, was completely different and that may be the reason why the Single Bench would have granted relief in that case. As seen in that case, Baskaran passed B.A. (History) in 1989 and M.A.(Tamil) in 1992. He got his B.Ed. degree in 1993 and got his name registered in the employment exchange on 26.07.1993. However, he subsequently got a degree in B.A.(Tamil) only in the year 2010 to obviate any difficulty that may come across since he does not have a basic degree in Tamil. But, the Single Bench, in that case, held that in 2010, when the candidate completed B.Lit. (Tamil), it cannot be taken into account as that degree was not available when he got his name registered in the employment exchange so as to claim seniority. In the view of the Single Bench in P.Baskaran, supra, the relevant date is when the department calls for the names for the post of P.G. Assistant (Tamil). Page 10 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 17 The real issue is whether the crucial date for possession of qualification is the cut off date prescribed by the TRB or whether the date on which the list was sponsored by the employment exchange. Admittedly, the two private respondents did not possess the qualification on the cut off date prescribed for the post of Graduate Assistant (Tamil), and for M.B.C. candidates, the last qualified candidate selected had the cut off date as 23.08.1994, whereas, the private respondent in Review Petition (MD) No.14 of 2022 (P.Elangovan) had his name registered in the employment exchange on 22.06.1993 only and on that date, he was not qualified. Similarly, the private respondent in Review Petition (MD) No.15 of 2022 (S.Marimuthu) got his name registered in the employment exchange on 16.04.1993 and the cut off date of the last candidate selected was 30.12.1996, on which day, he was not qualified for the post.
18 When the authorities are empowered to select candidates by fixing a cut off date for filling up the backlog vacancies and also stipulate the minimum qualification required, in the absence of any challenge to such a method, it is not open to this Court sitting under Article 226 of the Constitution of India, to suggest another mode of selection, i.e. that it is enough if the candidate has the Page 11 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 qualification on the date of sponsorship by the employment exchange. Such an approach will not only derail the established procedure which was not under challenge, but also will create innumerable problems to the authorities who are empowered to select candidates. It can never be said that a person who subsequently acquires the qualification prescribed will be considered equal to another candidate who was already qualified and had his name registered with such qualification.
19 We do not think that it was right on the part of the learned Single Bench and the Division Bench to rely upon P. Baskaran (supra) and to allow the case of the two private respondents to be considered for selection. On the other hand, P. Baskaran (supra) is easily distinguishable and could be confined to the facts of that case alone. Further, even in terms of law, it is not open to the Writ Courts to deviate from the prescribed procedure and to alter the selection method.
20 The TRB has taken a stand in Ground No.5 of the Review Petition that the order sought to be reviewed, if implemented, will result in incongruous results and the same is usefully extracted:
Page 12 of 14
https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 “The Hon’ble Division Bench ought to have seen that Registration for employment is not for the person or his name but his qualification. SO registration of requisite qualification is the criteria. Registration of some other qualification how prior it may be cannot be the criteria. For instance one ‘A’ registers his SSLC in 1990 but acquires requisite degree in 2005 and registers it in 2005. On the other hand, one ‘B’ Registers his requisite qualification 1995. In the selection during 2006, ‘A’ cannot claim priority over B, as in registration of requisite qualification B is senior to ‘A’.” We are in complete agreement with the grounds raised by the TRB.
As a sequitur, the common judgment dated 29.06.2017 passed by the Division Bench in W.A. (MD) Nos.822 and 823 of 2017 and so also the common order dated 02.12.2014 passed by the Single Bench in W.P. Nos.11771 and 11800 of 2010 are set aside. Ex consequenti, W.P. (MD) Nos.11771 and 111800 of 2010 stand dismissed and the instant review petitions stand allowed. Costs made easy.
Connected Stay Petitions in C.M.P. Nos.447 and 448 of 2022 stand closed.
(P.N.P., J.) (P.V., J.) 23.08.2022 cad Page 13 of 14 https://www.mhc.tn.gov.in/judis Rev. Petn. (MD) Nos.14 & 15 of 2022 in W.A. (MD) Nos.822 & 823 of 2017 P.N. PRAKASH, J.
and P. VELMURUGAN, J.
cad To 1 The Member Secretary The Teachers Recruitment Board E.V.K.Sampath Maligai College Road Chennai 2 The District Employment Officer O/o. District Employment Office Theni District Theni Common order in Review Petition (MD) Nos.14 and 15 of 2022 in W.A.(MD) Nos. 822 and 823 of 2017 23.08.2022 Page 14 of 14 https://www.mhc.tn.gov.in/judis