Madras High Court
The Chairman vs P.V.Brilla Betsy on 14 December, 2009
Bench: D.Murugesan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/12/2009
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD).No.821 of 2008
and
M.P.(MD).No.2 of 2008
1.The Chairman,
Teachers Recruitment Board,
E.V.K.Sampath Maligai,
4th Floor, D.P.I.Compound,
College Road,
Chennai-6.
2.Director of School Education,
D.P.I.Compound,
College Road,
Chennai-6.
3.Chief Educational Officer,
Kanyakumari District,
Nagercoil. ... Appellants
Vs
P.V.Brilla Betsy ... Respondent
PRAYER
Writ Appeal is filed under Section 15 of the Letters Patent against the
Order dated 19.07.2007 made in W.P.(MD).No.2462 of 2004.
!For Appellants ... Mrs.V.Chellammal
Additional Advocate General
and
Mr.R.Janakiramalu
Special Government Pleader
^For Respondents ... Mr.S.S.Sundar for
Mr.M.Saravanakumar
:JUDGMENT
[Judgment of the Court was delivered by S.NAGAMUTHU,J] Challenge in this writ petition is to the order, made in W.P.(MD).No.2462 of 2004, dated 19.07.2007, wherein a learned single Judge of this Court has allowed the writ petition directing the first appellant herein to send a proposal to the Government selecting the petitioner for the Junior Post Graduate Assistant for the year 2003-2004 in the subject Physics (Tamil Medium), within two weeks from the date of receipt of that order and with a further direction to the second respondent to give appropriate appointment orders, within four weeks thereafter.
2. The respondent herein is a Post Graduate having M.Sc., degree in Physics subject to her credit, besides B.Ed., degree and she belongs to Backward Class. The first appellant issued a notification calling for applications from eligible candidates to recruit Junior Post Graduate Assistants in Government Higher Secondary School under the School Education Department and other Government Departments in the State. In pursuance of the said notification, dated 13.09.2003, the petitioner submitted her application. As per the prospectus there were totally 228 posts in the subject Physics (Tamil medium) and the posts will be filled up on the basis of the written competitive examinations to be conducted by the first respondent subject to the rule of reservation. The scheme of the examination is written examination consisting of a single paper with 150 marks. Besides that, weightage marks as detailed below will be given and such marks will be added to the written examination marks for preparing merit-cum-communal roster;
i) Employment Exchange period of wait Year Marks 1-3 1 3-5 2 5-10 3 10 and above 4 ii) Subject Examination marks MA/M.Sc.,/M.Com/M.P.Ed. above 80% 2 60% to 80% 1 iii) Experience of teaching in standard 11 & 12 2 years and above 2 in any recognised school (completed years only to be filled in) 5 years and above 3
Based on the marks secured as indicated above, the candidates will be shortlisted for certificate verification. Then, on such certificate verification, the first respondent would select the required number of candidates and forward the same to the second respondent for issuance of appointment orders.
3. The petitioner secured a total number of 91 marks, but she was not selected by the first respondent. But, few candidates having Roll numbers of P04110135, P04200004, P04070028, P04090041, P04150026, P04140055, P04080106, P04180080 and P04250072, who had secured less marks and those who also belong to Backward Class were selected and appointed. With this grievance, the petitioner filed the writ petition seeking to quash the list of selected candidates published by the first respondent, dated 28.11.2003 and for consequential directions to the respondents to select and appoint her in the post.
4. Before the writ court no counter affidavit was filed. Though the writ petition was admitted on 15.10.2004 and though the writ petition was adjourned for several hearings with a direction to file counter, the appellants herein did not choose to file counter and therefore, the learned Judge took the view that in the absence of any counter, the allegations made in the affidavit of the respondent herein have to be taken as true. The writ Court further looked into the selection list and came to the conclusion that the respondent herein should have been appointed, since she had secured 91 marks, whereas few candidates who had secured 90 marks were appointed. The writ Court, however, declined to quash the entire selection list, dated 28.11.2003, since the candidates, who got the benefit of appointment, were not added as parties to the writ petition. Therefore, the writ court directed the appellants herein to issue appointment order to the respondent herein. It is the said order, which is under challenge in the writ appeal.
5. In this writ appeal, it is contended that in the Physics subject, minimum cut off marks in the written examination for Backward Class (General) was 93/150 and 89/150 for Backward Class (Women). When the candidates were called for certificate verification on the basis of the above shortlisting, based on such verification of the certificates, the marks had to be re-allotted for candidates. In so far as the respondent is concerned, her marks remained unaltered at 91. But, the candidates about whom the respondent has made reference in the affidavit got more marks on certificate verification and strictly based on the same only the candidates were selected. It is contended, that out of 11 candidates referred to by the respondent in the writ petition, only 8 candidates were selected based on marks as detailed below;
Roll Number Dateof Birth Marks Weightage tot Actual Comm
in the of marks al comm unal
written marks unity turn
examination Employ Teaching of
ment experi sele
weightate ence marks ction
marks
P04290103 30.07.1970 90 4 - 94 BC BW
P04010250 22.06.1972 90 3 - 93 BC BW
P04170009 04.05.1974 90 2 - 92 MBC MW
P04010014 07.06.1975 90 3 - 93 BC BW
P04010053 10.01.1976 90 2 - 92 BC BW
P04090084 23.06.1976 90 2 - 91 BC BW
P04070022 27.05.1976 90 4 3 96 BC BW
P04080015 14.04.1979 90 - - 90 BC BW
Though the respondent herein has secured 91 marks, she could not be selected because, she happens to be junior in age to the other candidates belong to BC Women, who had secured 91 marks. With these contentions, it is contended by the appellants that the order of the learned Single Judge is liable to be set aside.
6. We have heard the learned Additional Advocate General appearing for the appellants and the learned counsel appearing for the respondent and also perused the records carefully.
7. As we have already noticed, as per the prospectus the selection shall be made on the basis of the marks in the written examination and the weightage marks. The prospectus further makes it crystal clear that there shall be weightage mark for the academic excellence. But, it is tacitly, now, admitted by the learned Additional Advocate General that while making selection, the Board decided not to award weightage marks for academic excellence, since the Board faced lot of difficulties in awarding the said marks. It is pointed out that some Universities have awarded grades and others have awarded marks in their under graduate degree and Post Graduate degree examinations. Therefore, according to the appellants, it was difficult to find out, the exact marks secured, for whom the Universities have awarded only grades. Therefore, the Board passed a resolution to do away with the weightage marks for the academic excellence and decided to award weightage marks only for employment registration seniority and experience in teaching in Standard XI and XII. When a specific query was made to Additional Advocate General, as to what is the basis for the issuance of the prospectus, she fairly submitted that scheme of examination and award of marks were prescribed by the Government by means of appropriate Government Orders in G.O.Ms.No.100, School Education (Budget) Department, dated 27.06.2003 and G.O.Ms.NO.107, School Education Department, dated 24.07.2003 and that was the basis for the prospectus.
8. Having issued the prospectus based on the said Government Orders prescribing weightage marks for the academic excellence, the Board as well as the candidates are bound by the terms and conditions of the prospectus. When yet another query was made to the learned Additional Advocate General as to how the first respondent can overlook the Government Order by doing away with the weightage marks for academic excellence, she has got no explanation to offer. In our considered opinion, when the prospectus provides for weightage marks for academic excellence on the basis of said examination marks, it is not within the power of the Board to deviate from the same and to do away with the weightage marks. This exercise made by the first respondent is wholly without jurisdiction. It is needless to point out, as we have already stated, the prospectus binds not only the candidates, but also the first respondent. It is settled law that rules of the game cannot be changed after the game has started. Thus, it is on this ground alone, in our considered opinion, the entire selection list is liable to be quashed. But, we do not propose to do it, at this stage for more than one reason. Firstly the respondent has not come up with any appeal, when her prayer for quashing the entire list has not been allowed by the learned single Judge. Secondly, the appointments were made in the year 2005 and at this length of time, setting aside the selection list would only result in unnecessary chaos. Above all, as rightly pointed out by the learned single Judge, the beneficiaries of the selection list, who have already been appointed, were not before the Court as parties in the writ petition.
9. In these circumstances, the immediate next question which arises for consideration is as to whether to sustain the order of learned single Judge directing the respondents to appoint the petitioner. In our considered opinion, the answer is in the affirmative, for, if the petitioner is awarded one mark for her academic excellence as per the prospectus, she would get 92 marks, which is above the cut off marks for BC (Women) candidates for appointment. For this simple reason, the petitioner would be entitled for appointment. It may be true, that if such exercise of giving weightage to the academic excellence would have been undertaken, many candidates who have not been selected, might have got chance of appointment and among candidates, who have been appointed, some might not have got the chance of selection and even the petitioner's chance of appointment is uncertain. But, we cannot go by such hypothetical question because, the persons who have not approached this Court vigilantly cannot gain the benefit of this order. Since the petitioner alone has come to the Court, we are of the view that she is entitled for awarding one mark for academic excellence and consequentially for selection.
10. When this Court directed the learned Additional Advocate General to produce the final list of candidates selected for this subject under BC (Women) category and BC General Turn category, this Court could find that there were certain anomalies, in as much as some candidates, who are not eligible for appointment, were appointed and some, who are eligible for appointment, were not selected. After going through the final list of Backward Class (Women) candidates selected for Physics subject, the learned Additional Advocate General, tacitly admitted before this Court, across the bar, that the selection and appointment of the candidates by name A.P.Arul Venkatalakshmi, K.Anitha, J.Anbumani and S.Rohaiyabi under the BC (Women) category is not correct and they should have been appointed under the BC General Turn category. If these four candidates had been so appointed under BC General category, certainly four BC women, who have been now left out, should have got the chance of appointment. Similarly four men candidates, who have been now appointed as against the above four vacancies, would not have got selected. However, we do not propose to probe further into these aspects and we only deem it appropriate to record that all was not well with the selection list. But, as we have already stated, on this score we are not inclined to set aside the selection list, for the reasons which we have already mentioned.
11. In the result, the writ appeal is dismissed. The order of the learned single Judge is confirmed with a further direction to the appellants 1 and 2 to appoint the respondent, within a period of four weeks from the date of receipt of a copy of this order and to give her appropriate place in the seniority list.
JIKR To
1.The Chairman, Teachers Recruitment Board, E.V.K.Sampath Maligai, 4th Floor, D.P.I.Compound, College Road, Chennai-6.
2.Director of School Education, D.P.I.Compound, College Road, Chennai-6.
3.Chief Educational Officer, Kanyakumari District, Nagercoil.