Madras High Court
G.Varadharajulu Naidu vs The State Of Tamilnadu on 5 January, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.271, 272 and 285 to 290 of 2012 & M.P.Nos.1 to 3 of 2012 W.P.No.271 OF 2012: G.Varadharajulu Naidu .. Petitioner Vs. 1. The State of Tamilnadu Rep.by the Principal Secretary to Government Social Welfare, Nutritious Meal Programme (NMP1) Department Secretariat, Chennai-600 009 2. The State of Tamilnadu Rep.by the Secretary to Government School Education Department Secretariat Chennai 600 009 3. The Director of School Education College Road Nungambakkam Chennai 6 4. The Chairman Teachers Recruitment Board College Road Chennai 600 006 .. Respondents Prayer in W.P.No.271 of 2012: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the 1st respondent vide his proceedings No.Ne.Mu.Ka.No.7959/SaUThi 1/2010 dated 10.01.2011 and quash the same as illegal arbitrary, unreasonable being violative of rules and principles of natural justice and thereby direct the 4th respondent to sent the petitioner for Certificate Verification with Roll Number X11290074 for the Selection to the post of Graduate Assistant Teacher under the 3rd respondent herein pursuant to the Notification No.Nil dated 25.10.2010 by the 4th respondent herein. For Petitioner in all W.Ps. :: Mr.A.R.Suresh For Respondents in all W.Ps. :: Mr.A.Navaneethakrishnan, Advocate General COMMON ORDER
Heard the arguments of Mr.A.R.Suresh, learned counsel for the petitioner and Mr.A.Navaneethakrishnan, learned Advocate General appearing for the State of Tamil Nadu.
2. In these Writ Petitions, the petitioners have challenged a circular issued by the State Government dated 10.01.2011 and after setting aside the same, they want the respondents to consider their case by sending their names for Certificate Verification and selection to the post of Graduate Teacher in any of the School run by the State.
3. The communication, which is referred to by the petitioners is issued by the Principal Secretary to the Government, Social Welfare Department and addressed to the Teachers Recruitment Board stating that the persons who are working in the Noon Meal Centres run by the Social Welfare Department, are in receipt of educational qualification, i.e., a basic degree as well as Degree in Education, they can be considered for writing the Special Examination for recruitment to the post of Graduate Teacher in Schools. With reference to the persons, who are having degree in Commerce, Economics and Computer Science, the existing practice for recruitment should be followed. Insofar as the persons employed in Noon Meal Centres or Anganwadi Centres, they had applied for the post of Graduate Assistant and if they want to write the Special Examination, they should have acquired the degree in Education before 5.1.2010, which is the date on which the Government Order came to be issued vide G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department dated 5.1.2010.
4. The case of the petitioner was that G.O.Ms.No.4, Social Welfare and Nutritious Meal Programme Department dated 5.1.2010 do not prescribe any cut off date and the petitioners originally had obtained Post Graduate Degrees, after undergoing foundation Course from the Annamalai University. They subsequently got a Degree in Education and also a Basic Degree through correspondence mode and they cannot be disqualified. So long as they are having qualification for holding the post of Graduate Assistant, their cases should be considered on par with the others. In essence, after the issuance of the G.O., the question of issuing clarification by the authority in the form of D.O.letter addressed to the Teachers Recruitment Board will not arise. This contention has two fallacies. The first is that the petitioners are not being recruited under a general recruitment device. It was only because number of such employees made a demand to the Government that they should have further avenues of moving forward in their career and since they are having qualifications, they should be considered for the posts of Graduate Assistants. The Government had chosen to issue a Special G.O identifying such persons, even though they have obtained degrees only by correspondence mode and also they have crossed the age limit for entry into such posts. The State Government issued the said G.O only as a special case.
5. It must also be noted that when special considerations are made, it involves relaxation of essential qualification. Naturally persons who seek entitlement to those posts, must have the qualifications atleast on the date on which the Government Order was issued. Therefore, when the State Government issued a G.O., requesting the Teachers Recruitment Board to consider the case of such category of persons, they are also empowered to provide the criteria required for such consideration. By clarifying the G.O that persons should be qualified as on the date of the G.O., it is not a case of overriding the G.O. and it is only a supplement to the G.O. Even otherwise under the service jurisprudence, all persons must have qualifications on the date on which requisition is made and not on any subsequent periods.
6. This Court do not find any illegality or irregularity in the impugned order. In the case of the petitioners, they had also filed Writ Petitions before this Court being W.P.Nos.3870 to 3874 of 2011 and batch cases seeking for a direction to accept their application for selection to the post of Graduate Assistant. Those Writ Petitions were disposed of by a common order dated 12.4.2011. Recording the stand of the respondents, the relief to the petitioners was denied except to hold that the Government will follow the undertaking given before it.
7. In those Writ Petitions, the very same impugned letter was produced on behalf of the Government and this Court disposed of the Writ Petitions and directed the respondents to proceed with the selection process. It is not clear as to how the petitioners can have a second round of litigation when already this Court had directed the respondents to follow the clarification letter.
8. In any event, the grounds raised by the petitioner cannot be countenanced for more than one reason. It must be noted that the question of M.A.Degree given by the Annamalai University through the correspondence mode without a candidate possessing degrees came to be considered in view of Rules framed by the State Government for recruitment to various posts. The matter was initially decided by a Division Bench. The Division Bench held that Post Graduate Degree given by Annamalai University cannot be considered to be a degree to satisfy the minimum general educational qualification (MGER) for entry into Government service.
9. The matter was taken to the Supreme Court by Annamalai University. The Supreme Court dismissed the appeal vide its judgment in Annamalai University Represented By Registrar v. Secretary To Government, Information, (2009) 4 SCC 590. In that case, the arguments were addressed that when degree given by the statutorily established University is recognised by U.G.C., the Courts should not invalidate the degree. It was requested that in any event since the respondents are having higher degree, the Government can think of granting necessary relaxation. In that context, the Supreme Court observed as follows:
56. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non-compliance therewith would entail its consequences. The power of relaxation conferred on UGC being in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the Regulations on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue.
57. Relaxation, in our opinion, furthermore cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an administrative authority, it would be void. Such a void order cannot be validated by inaction.
10. Subsequent to the judgment, attempts were made to acquire basic degrees. Therefore, the petitioners cannot contend that either on the date of G.O or any time before they were having qualifications which are required for the post of Graduate Assistant. The impugned letter only gives the cut off date to inform that persons who are allowed to write the special examination must be in full possession of the qualification prescribed for the said post. As to whether a person should have qualification on the basis of cut off date prescribed by the State Government cannot be a ground raised by the petitioner.
11. In the absence of any such cut off date, what should be the criteria to be adopted by the authorities came to be considered in more than one judgment of the Supreme Court. In this context, it is necessary to refer to certain decisions which will have bearing on this case.
12. The Supreme Court vide its judgment in Shankar K. Mandal v. State of Bihar, reported in (2003) 9 SCC 519 in paragraph No.5, observed as follows:
"What happens when a cut-off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (see Ashok Kumar Sharma v. Chander Shekhar, Bhupinderpal Singh v. State of Punjab and Jasbir Rani v. State of Punjab) are as follows:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
13. Similar was the view taken subsequently by the Supreme Court vide its judgment in Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54. In paragraph Nos, 16, 16 and 20, it was observed as follows:
"15. It was held: (SCC pp. 21-22, para 6) So far as the first issue referred to in our order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for, prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan3. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview. The said decision is, therefore, an authority for the proposition that in absence of any cut-off date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such.
16. Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefor.
20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by tis Court would be the last date for filing the application."
14. In yet another judgment of the Supreme Court in Basic Education Board, U.P. v. Upendra Rai, (2008) 3 SCC 432, the Supreme Court in paragraphs 14 and 15 had observed as follows:
"14. The respondent admittedly got appointment after the Circular dated 11-8-1997 and hence this circular applies to him. Admittedly, the respondent does not possess the qualification mentioned in the said circular. He does not either possess BTC, Hindustani Teaching Certificate, JCT or Certificate of Teaching. The DEd Certificate is no longer regarded as equivalent to BTC after the Circular dated 11-8-1997. This was a policy decision of the U.P. Government, and it is well settled that the court cannot interfere with policy decision of the Government unless it is in violation of some statutory or constitutional provision. Hence, we are of the opinion that the respondent was not entitled to be appointed as Assistant Master of a junior basic school in U.P.
15. Grant of equivalence and/or revocation of equivalence is an administrative decision which is in the sole discretion of the authority concerned, and the court has nothing to do with such matters. The matter of equivalence is decided by experts appointed by the Government, and the court does not have expertise in such matters. Hence it should exercise judicial restraint and not interfere in it."
15. In the light of the above legal precedents, it will be clear that it was open to the State Government to prescribe a cut off date, which was required for applying for a particular post. Only in the absence of cut off date, the question of deciding the necessary date for entry into service can be considered. But, once a cut off date is fixed by the State Government, it is not open to the court to judicially review the said date and come to different conclusions, since it is largely in the policy realm of the State Government in prescribing such cut off of date.
16. In the light of the above, the petitioners have not made out any case to interfere with the impugned letter. Hence, the Writ Petitions are misconceived, bereft of legal reasoning and accordingly stand dismissed. However, the parties are allowed to bear their own costs. The connected Miscellaneous Petitions are closed.
ajr To
1. The Principal Secretary to Government Social Welfare, Nutritious Meal Programme (NMP1) Department Secretariat, Chennai-600 009
2. The Secretary to Government School Education Department Secretariat Chennai 600 009
3. The Director of School Education College Road Nungambakkam Chennai 6
4. The Chairman Teachers Recruitment Board College Road Chennai 600 006