Madras High Court
C.Dharuman vs Government Of Tamil Nadu on 15 October, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15 / 10 / 2014 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.28172 OF 2013 AND CONNECTED MISCELLANEOUS PETITIONS 1.C.Dharuman 2.K.Uma 3.M.Suguna 4.P.Thilagavathi 5.P.Sundara Vadivel 6.N.Senthilkumar ... Petitioners Vs. 1.Government of Tamil Nadu Rep. By Secretary to Government School Education Department Fort St. George, Chennai 600 009. 2.The Director of School Education College Road, Chennai 600 006. 3.The Joint Director of School Education (Personnel) College Road, Chennai 600 006. 4.The Registrar Madras University Chepauk, Chennai 600 005. 5.The Registrar Annamalai University Chidambaram, Cuddalore District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 3rd respondent in relation to the list of ineligible candidates for promotion to the post of Graduate Assistant in Tamil (Tamil Pandit) issued in proceedings No.Nil dated Nil as on 01.01.2013 and quash the same and issue a consequential direction to the respondents 1 to 3 to treat the pass in Entrance Examination conducted by the Madras University and Annamalai University, the 4th and 5th respondent respectively, for admission into the B.A. Degree course as one of the eligibility criteria, as per the notification issued by the University Grants Commission in No.F.1117/83(CP) dated 25.11.1985, as amended on 18.10.1995 in No.F.1-117/83 (CPP-II) under Section 26 of the University Grants Commission Act and issue a consequential direction to the respondents 1 to 3 to promote the petitioners as Graduate Assistant in Tamil (Tamil Pandit) as per the seniority with all consequential benefits. For Petitioners : Mr.R.Saseetharan For Respondents : Mr.R.Ravichandran 1 to 3 and 5 Additional Government Pleader For Respondent-4 : Ms.G.Thilagavathy Orders reserved on: 25/09/2014 O R D E R
The petitioners passed S.S.L.C and also obtained T.T.C. Certificate. Based on the said qualification, they were appointed as Drawing Masters in High Schools between 1985 and 1987. The post of Drawing Master comes under Class 5 of the Tamil Nadu Educational Subordinate Service. The petitioners acquired B.Lit., (Tamil) between 1987 and 2006 from Madras University / Annamalai University respectively through distance education system. They were admitted to B.Lit., course after they passed the entrance examination conducted by the Madras University / Annamalai University, since they did not possess +2 qualification for admission to the degree course. Thereafter, the petitioners obtained either Tamil Pandit training or B.Ed., between 2008 and 2011. According to them, they possessed the required qualification prescribed under the Special Rules that are framed under Article 309 of the Constitution of India for the post of Tamil Pandit, which is also known as Graduate Assistant (Tamil).
2.While so, the third respondent issued the impugned list of ineligible candidates for promotion to the post of Tamil Pandit (Graduate Assistant in Tamil) as on 01.01.2013. The list has contained 131 candidates and the names of the petitioners herein except the fifth petitioner are also included in the aforesaid list. The reason stated in the impugned list for declaring them ineligible for promotion to the post of Tamil Pandit (Graduate Assistant in Tamil) is that the petitioners did not pass Higher Secondary Course before joining the degree course. As far as the fifth petitioner is concerned, he is neither included in the ineligible list nor in the eligible list.
3.It is the specific case of the petitioners that Clause 2 of University Grants Commission (the Minimum Standards of Instruction for the Grant of the First Degree Through Non-Formal/Distance Education in the Faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985 (for short UGC Regulations, 1985) provides for admission to any degree course through non-formal/distance education, even if a person does not pass 12 years schooling. But he should pass the entrance test conducted by the University concerned, for admission to the degree course.
4.The petitioners have filed the present writ petition praying to quash the impugned list and has sought for consequential direction to the respondents 1 to 3 to promote them as Tamil Pandit as per the seniority with all consequential benefits, as they possessed valid degree in terms of UGC Regulations 1985 and the qualification prescribed under the Special Rules framed under Article 309 of the Constitution.
5.According to the petitioners, they are in possession of valid degree awarded by the Madras University / Annamalai University, as per the UGC Regulations, 1985. Thus, according to the petitioners, they are eligible for promotion to the post of Tamil Pandi (Graduate Assistant in Tamil).
6.The respondents 1 to 3 have filed counter affidavit refuting the allegations made by the petitioners in the affidavit filed in support of the writ petition and they have sought to sustain the impugned order solely basing on G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009. It is averred in the counter affidavit that as per G.O.Ms.No.107, employment or promotion in public service cannot be given to persons, who obtained degree through non-formal education, without passing 10th standard and +2 course. According to the respondents 1 to 3, since the petitioners did not pass +2 course, they were correctly not included in the eligible list for promotion to the post of Tamil Pandit.
7.The fourth respondent Madras University has filed a counter affidavit supporting the stand of the petitioners. It is stated therein that the petitioners were awarded valid degree as per the UGC Regulations. It is categorically averred in their counter affidavit that as per the notification issued by the University Grants Commission in No.F.1117/83(CP) dated 25.11.1985, as amended on 18.10.1985 in No.F.1-117/83(CPP-II) under Section 26 of the University Grants Commission Act, the required eligibility clause for admission into a degree course is a pass in +2 examination or a pass in the entrance test conducted by the concerned University. It is further averred that the petitioners passed the entrance test conducted by the University concerned and got admitted into B.Lit., course and therefore, the degree obtained by the petitioners is a valid one, according to the notification issued by the Central Agency.
8.The fifth respondent who is represented by the learned Additional Government Pleader, who also represented the respondents 1 to 3, has not chosen to file counter affidavit.
9.Heard both sides.
10.(i)The learned counsel for the petitioners submitted that the qualification for promotion to the post of Tamil Pandit is prescribed by the Special Rules for the Tamil Nadu Educational Subordinate Service that are framed under Article 309 of the Constitution of India and thus, the rules are statutory in character. He took me through the rules and submitted that the rules nowhere state that one should have passed +2 for promotion to the post of Tamil Pandit.
(ii)On the other hand, it was submitted that the rules prescribe that the candidate shall possess one of the various qualifications and one among them is a degree, obtained in a University. He submitted that one of the qualifications prescribed in the Special Rules is S.S.L.C and the title of oriental learning conferred by the University in Tamil or Pulavar Panditham. That is, a person without passing +2 and without even a degree, could be appointed as Tamil Pandit.
(iii)He heavily relied on the UGC Regulations 1985, in this regard. He submitted that the UGC Regulations provide for admission to a degree course through distance education to students, who have passed +2 or who have no academic record, but passed the entrance test conducted by the University concerned, before admitting them to the degree course. In this case, the petitioners passed entrance examination conducted by the fourth and fifth respondents/Universities respectively and obtained a valid degree.
(iv)According to the learned counsel for the petitioners, the petitioners have possessed the requisite qualification as prescribed in the Special Rules governing promotion to the post of Tamil Pandit framed under Article 309 of the Constitution of India.
(v)The learned counsel for the petitioners submitted that it is not the case of the respondents 1 to 3 that the petitioners do not possess a valid degree as required by the Special Rules framed under Article 309 of the Constitution, but the petitioners did not pass +2 as required by G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, without realizing that G.O.Ms.No.107 could not prevail over the Special Rules that are framed under Article 309 of the Constitution of India, which are statutory in character. In this regard, he relied on the following judgments:
(i) Judgment of the Supreme Court in EX.CAPT.K.BALASUBRAMANIAN AND OTHERS VS. STATE OF TAMIL NADU AND OTHERS [1991 (2) SCC 708]
(ii) Division Bench judgment of this Court in G.RAJESH VS. THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT AND OTHERS [1995 WRIT L.R. 389]
(iii) Judgment of this Court in S.PAPPA AND 6 OTHERS VS. GOVERNMENT OF TAMIL NADU, REP. BY THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT AND OTHERS [2000 (2) L.W. 460]; and
(iv) Division Bench judgment of this Court in N.PRIYADARSHINI VS. THE SECRETARY TO GOVERNMENT AND ANOTHER [2005 (3) L.W. 101]
11.On the other hand, the learned Additional Government Pleader heavily relied on G.O.Ms.No.107 and contended that if a person obtains degree, without passing +2 course, he could not seek appointment / promotion in Government service as per G.O.Ms.No.107. In this regard, he relied on a Division Bench judgment of this Court in THE CHAIRMAN, TEACHERS RECRUITMENT BOARD AND ANOTHER VS. V.KANIMOZHI [W.A.No.805 of 2014 dated 06.08.2014] and submitted that the Division Bench relied on another Division Bench judgment dated 10.02.2011 in W.P.No.18729 of 2010 (T.L.Muthukumar Vs. The Registrar General, High Court, Madras and another reported in (2011) 2 MLJ 785) and held that though the degree awarded by the University, without a pass in +2 course is a valid one, a person cannot seek employment / promotion in public service, in view of G.O.Ms.No.107. According to him, the aforesaid judgment, has concluded the aforesaid issue and hence, the writ petition deserves to be dismissed.
12.In reply to the submission made by the learned Additional Government Pleader, the learned counsel for the petitioners submitted that the Division Bench judgment in THE CHAIRMAN, TEACHERS RECRUITMENT BOARD AND ANOTHER VS. V.KANIMOZHI [W.A.No.805 of 2014 dated 06.08.2014] nowhere considered as to whether G.O.Ms.No.107 could prevail over the Special Rules that are framed under Article 309 of the Constitution of India. According to him, it is well settled by a catena of decisions that the Administrative instructions or executive orders, issued by the Government under Article 162 of the Constitution, shall not prevail over the statutory rules / statute / constitution, as otherwise, it amounts to amendment of the rules / statute / constitution. He also contended that the upholding of G.O.Ms.No.107 by a Division Bench of this Court in T.L.Muthukumar and Others V. Registrar General, High Court, Madras and Another reported in (2011) 2 MLJ 785 was on the basis that the Rules framed by the High Court under Article 229 of the Constitution regarding conditions of service of its employees prescribes that a person who has obtained a degree, without passing +2 course, is not eligible for promotion. He has brought to my notice a passage in para 18 of the judgment in T.L.Muthukumar's case. That is, according to him, the Rules framed under Article 229 of the Constitution stipulates the same condition that is stipulated in G.O.Ms.No.107. But, in this case, according to him, the Special Rules for Tamil Nadu Educational Subordinate Service framed under Article 309 of the Constitution does not prescribe that a person seeking promotion to the post of Tamil Pandit should have passed +2, before obtaining a degree in Tamil. Hence, the Special Rules shall prevail over G.O.Ms.No.107.
13.I have considered the submissions made on either side and perused the materials available on record.
14. The Special Rules for the Tamil Nadu Educational Subordinate Service was framed under Article 309 of the Constitution and the same was notified by the Government in G.O.Ms.No.753, Education Department, dated 15.07.1985.
15(i).Rule 1 of the Tamil Nadu Educational Subordinate Service deals with the following Classes and categories of officers in the said service. Rule 1 is extracted hereunder :
1.Constitution. - The service shall consist of the following classes and categories of officers, namely:-
Class Category I
1.Deputy Inspector of Schools and School Assistants
2.Junior Deputy Inspector of Schools II Pandits in Tamil III
1.Pandits and Munshis(other than Tamil) Grade I
2.Pandits and Munshis (other than Tamil) including Arabic Munshis in Kanniyakumari district and Shencottah taluk of Tirunelveli district Grade II.
IV
1.Secondary Grade Teachers
2.Higher Elementary Grade Teachers V
1.Craft Instructors Grade I and Grade II
2.Art Masters in Secondary and Training Schools
3.Art Masters in Basic Training Schools
4.Music Teachers VI
1.Regional Inspectors of Physical Education and Physical Directors
2.Physical Education Teachers 15(ii).Rule 3 of the Tamil Nadu Educational Subordinate Service deals with the method of appointment to the above Classes and categories of posts. In this case, we are concerned with Class-II posts. Accordingly, the relevant portion of the Rule 3, that deals with the method of appointment of Pandits in Tamil, is extracted as hereunder :
Class and category Method of Appointment Class II -
Pandits in Tamil
(i) Direct recruitment ; or
(ii) Transfer from any posts in the service on an identical scale of pay ; or
(iii) Promotion from any post in the service on a lower scale of pay ; or
(iv) Recruitment by transfer from any other service;
Provided that 33-1/3 per cent of the vacancies shall be filled or reserved to be filled by direct recruitment and 66-2/3 per cent by other methods.
15(iii).Rule 5 of the Special Rules states that the appointing authorities to these classes and categories of officers are as prescribed in the Annexure I to the Special Rules. As per Annexure I, Joint Director of School Education or Deputy Director of School Education, is the appointing authority to the Class II posts, namely, Tamil Pandits.
15(iv).The qualification is prescribed under Annexure II, as stated in Rule 9 of the Special Rules for Tamil Nadu Educational Subordinate Service. As far as Tamil Pandit is concerned, Annexures II of the Special Rules prescribes the following qualification :
Name of the category Method of appointment Qualifications Pandits and Munshis (other than those in Hindi) Grade I including Pandits in Tamil Direct recruitment, transfer, promotion and recruitment by transfer
(i)A degree of a University in the State in the language in respect of which recruitment is necessary.
OR Minimum general educational qualification as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service and title of Oriental Learning conferred by any University in the State in the language in respect of which recruitment is necessary:
Provided that for purposes of appointments as Munshi in Urdu, persons possessing the Oriental Title of Munshi I Fazil of the University of Madras awarded prior to 1939 shall be eligible, besides persons possessing the Oriental Title of Adib-e-Fazil of the said University:
Provided further that a person who possesses a minimum general educational qualification as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service and who has passed the Pulavar Panditham Examination held by the Madurai Tamil Sangam upto April 1977 shall be eligible for appointment to the post of Pandits in Tamil and
(ii) B.T., or B.Ed., degree of a University in the State of a Trained Teacher's Certificate of the Secondary Grade or a Senior Basic Grade Trained Teacher's Certificate or successful completion of the Pandits training course or Diploma in Teaching awarded by any University in the State.
16.While the aforesaid Special Rules framed under Article 309 of the Constitution provides any of the various qualifications as eligibility for the post of Tamil Pandit, which is the post now under consideration, the Special Rules rules nowhere states that the candidate should have passed +2. The Special Rules merely states that one of the eligible qualification is degree of a University in the State in the language in respect of which recruitment is necessary. That is, the Special Rules make it clear that the person should possess a valid degree as per the UGC Regulations. If the degree is valid, without a pass in +2, as per the UGC Regulations, a person who is in possession of such a degree is eligible to be considered for appointment/promotion to the Class II post, namely, Tamil Pandit, under the Special Rules.
17.Even the learned Additional Government Pleader admits that the petitioners are in possession of valid degree. But the only objection is that they have not passed +2 and hence, the degrees obtained by them are of no use for their promotion to the post of Tamil Pandit. The learned Additional Government Pleader heavily relied on G.O.Ms.No.107 in this regard and the same is extracted hereunder:
jkpH;ehL muR RUf;fk;
bghJg; gzpfs; - ,izf; fy;tpj; jFjp eph;zak; - gs;sp nky;epiyg; gog;g[ (+2) Koj;J jpwe;j btspg; gy;fiyf; fHf';fspy; bgWk; gl;lak;/ gl;lk;/KJfiyg; gl;l';fs; | bghJg; gzpfspy; epakdk; bgw m';fPfhpj;J Miz-btspaplg;gLfpwJ.
gzpahsh; kw;Wk; epUthfr; rPh;jpUj;jj; (vk;) Jiw murhiz (epiy) vz;. 107 ehs:: 18.8.2009 Mtzp 2/ jpUts;Sth; Mz;L 2040 gof;f
1)murhiz (epiy) vz;. 180/ gzpahsh; kw;Wk; epUthfr; rPh;jpUj;jj; (Mh;;) Jiw ehs; 11.9.2000
2)gp.v!;.vd;.vy;. epWtd jkpH;ehL tl;l jiyikg; bghJ nkyhshpd; foj vz; Mh;.,.o./301-6/2004/ ehs; 17.7.2004
3)jkpH;ehL muRg; gzpahsh; njh;thizar; brayhpd; ne.K.f/vz;.1745/Mh;.vd;.o-vg;1/2007/ ehs; 05.04.2007
4)jkpH;ehL muRg; gzpahsh; njh;thiza ,izr; brayhpd; ne.K.f/vz;.5280/Mh;.vd;.o-vg;1/2007/ ehs; 27.09.2007 Miz:
nkny xd;wpy; fhDk; murhizapy;/ gy;fiyf; fHf khd;af; FGthy; m';fPfhpf;fg;gl;l jkpH; ehl;oYs;s gy;fiyf; fHf';fshy; jpwe;j btspg; gy;fiyf; fHf Kiw \yk; tH';fg;gLk; gl;lag; gog;g[/ gl;lg; gog;g[/ kw;Wk; KJepiyg; gl;lg; gog;g[fis/ mg;gy;fiyf; fHf';fshy; Kiwahf (Regular Stream) tH';fg;gLk; gl;lag; gog;g[/ gl;lg; gog;g[/ kw;Wk; KJepiyg; gl;lg; gog;g[ Mfpatw;wpw;Fr; rkkhff; fUjp bghJg; gzpfspy; ntiy tha;g;gpw;F m';fPfhuk; mspj;J Mizaplg;gl;lJ.
2. gp.v!;.vd;.vy;. epWtd jkpH;ehL tl;l jiyikg; bghJ nkyhsh; nkny ,uz;oy; fhDk; fojj;jpy;/ gs;sp nky;epiyf; fy;tpapy; njh;r;rp/ Fiwe;j gl;r fy;tpj; jFjpahf eph;zapf;fg;gl;l xU gzpaplj;jpw;F/ gs;sp nky; epiyf; fy;tpj; njh;tpy; (+2) njh;tilahky;/ jpwe;j btspg; gy;fiyf; fHf';fspd; tHpahf ,sk; mwptpay;/ ,s';fiyg; gl;l';fs; (B.Sc., B.A.,) bgw;wth;fis gs;sp nky;epiyf; fy;tpj; njh;tpy; njh;r;rp bgw;wth;fs; vdf; fUjp muRj; Jiwfspy; gjtp cah;t[fSf;Fj; jFjp bgw;wth;fshff; fUjyhkh vd tpsf;fk; nfhhpapUe;jhh;.
3. nkw;fz;l fUj;JU kPJ ,izf; fy;tp eph;za ghprPypg;g[f; FGtpd; ghpe;Jiuiag; bgw;W mDg;g[khW jkpH;ehL muRg; gzpahsh; njh;thizaf; FGtpd; brayh; nfl;Lf; bfhs;sg;gl;lhh;. ,izf; fy;tpj; jFjp eph;zaf; FG/ gs;sp nky;epiyf; fy;tpj; njh;tpy; njh;r;rp bgwhky;/ jpwe;j btspg; gy;fiyf; fHf';fspy; ,sk; mwptpay; kw;Wk; ,s';fiyg; (B.Sc., B.A.,) gl;lk; bgw;wth;fis/ khepy murpd; +2 njh;tpy; njh;r;rp bgw;wth;fs; vdf; fUjp/ muRg; gzpfspy; gzp epakdj;jpw;nfh my;yJ gjtp cah;t[fSf;nfh fUj ,ayhJ vdg; ghpe;Jiuj;jJ. ,f;fUj;JUtpid ,izf; fy;tp eph;zaf; FGtpd; ghpe;Jiuf;fhf kPz;Lk; mDg;gpa nghJk;/ Vw;fdnt vLj;j jPh;khdj;ijna kPz;Lk; typa[Wj;jpaJ.
4. ,g;ghpe;Jiuapid muR ftdkhfg; ghprPypj;J/ ,izf; fy;tp eph;za ghprPypg;g[f; FGtpd; ghpe;Jiuia Vw;Wf; bfhs;s KobtLj;J mjw;fpz';f gs;sp ,Wjpj; njh;t[ (gj;jhk; tFg;g[) kw;Wk; gs;sp nky;epiyf; fy;tpj; njh;t[ (+2) Mfpaitfspy; njh;r;rp bgw;wgpd;/ jpwe;j btspg; gy;fiyf; fHf';fspd; tHpahfg; bgwg;gLk; gl;lak; / gl;lk; / KJfiyg; gl;l';fis kl;Lk; bghJg; gzpfspy; epakdk; / gjtp cah;t[ bgw m';fPfhpj;J MizapLfpwJ.
(MSehpd; Mizg;go) nf/vd;.bt';fl;ukzd;
muR brayhsh;
18.As rightly pointed out by the learned counsel for the petitioners, while the Special Rules prescribes that a degree of a University in the State in Tamil is the requisite qualification for the post of Tamil Pandit, G.O.Ms.No.107 requires that unless one did not pass +2 before obtaining a degree through distance education mode, such a person is not eligible for appointment and promotion to Government posts, including the post of Tamil Pandit. As rightly contended by the learned counsel for the petitioners that such a condition prescribed by G.O.Ms.No.107 in contravention to the Special Rules framed under Article 309 of the Constitution is bad and illegal, since it is well settled that the administrative instructions issued by the Government by way of G.O.Ms.No.107 could not prevail over the Special Rules framed under Article 309 of the Constitution, which are statutory in character. The judgments relied on by him squarely cover the point in issue and those judgments are dealt hereunder.
18(i).In the judgment of the Supreme Court in EX. CAPT. K.BALASUBRAMANIAN AND OTHERS VS. STATE OF TAMIL NADU AND OTHERS [1991 (2) SCC 708], the appellants therein were Emergency Commissioned Officers / Short Service Regular Commissioned Officers (Shortly ECOs / SSRCOs) in the Indian Army. After discharge from Indian Army, they joined the Commercial Tax Service of the State of Tamil Nadu. The fixation of seniority is governed by statutory rules. But, a different criteria, other than the one prescribed in the Statutory Rule, was adopted for fixation of seniority in respect of ECOs / SSRCOs in the Commercial Taxes Department. The fixation of seniority contrary to the statutory rules was held as illegal by the Supreme Court. In this regard, para 9 of the said judgment is extracted hereunder:
9.This shows that thee was an express provision in the statutory rules providing that seniority shall be fixed on the basis of the date of appointment. By orders dated November 16, 1976 and June 15, 1977, the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of ECOs/SSRCOs and the seniority was sought to be fixed on the basis of a different criterion, namely, by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty. This was inconsistent with the principle for fixing the seniority contained in rule 35 of the General Rules and this could only be done by suitably amending the said rules and it could not be done by issuing administrative instructions. The High Court has, in our opinion, rightly held that the directions contained in orders dated November 16, 1976 and June 15, 1977 were invalid being contrary to the provisions contained in rule 35 of the General Rules. Since the said orders were invalid, the petitioners could not claim any right on the basis of the said orders and there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980. In so far as appointments to medical and engineering services are concerned, the High Court has pointed out that suitable amendments were made in the relevant Services Rules relating to those services whereby the benefit of the Army Service was given in the matter of fixation of seniority of ECOs / SSRCOs. who had joined the medical and engineering services. No similar amendment has been made in the rules governing the non-technical services, e.g., Commercial Tax Service to which the petitioners were appointed. In fact, the aforesaid paragraph makes it very clear that wherever necessary amendments were made in the statutory rules giving benefit of Army service for fixation of seniority, the same was upheld. But, without amendment to statutory rules, when the Department sought to give benefit of Army service, based on executive order issued by the Government, the Supreme Court categorically held that the same is bad.
Hence, in the absence of making amendment to the Special Rules for Tamil Nadu Educational Subordinate Service incorporating the provisions contained in G.O.Ms.No.107, the respondents cannot disqualify the petitioners on the sole ground that they did not pass +2, though they obtained a valid degree.
18(ii).In the Division Bench judgment of this Court in G.RAJESH VS. STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, EDUCATIONL DEPARTMENT AND OTHERS [1995 WRIT L.R. 389], the issue is as to whether the Government Order issued under Article 162 of the Constitution of India could prevail over Section 6(3) of the Anna University Act. While Section 6(3) of the Anna University Act prescribed reservation of seats for students, the impugned G.O.Ms.No.466, Education, Science and Technology Department, dated 08.06.1994 prescribed a different reservation of seats contrary to the statutory provisions. A Division Bench of this Court has held in para 7 of the judgment as follows:
7...Thus sub Section (3) of Section 6 of the Act empowers the State Government to issue an order or direction to the University to reserve certain percentage of seats for the students belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes as may be specified in such direction and when such direction has been given, the University shall make the reservation accordingly. It is a settled position of law that when the field is occupied by the Statute executive power cannot be exercised. Sub-Section (3) of Section 6 specifically provides that the State Government can issue directions regarding the reservation of seats for the students belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. It is not possible to hold that the State Government, in exercise of its executive power, can issue a direction to the University to reserve seats for students falling under the sports category................ 18(iii).In the judgment of this Court in S.PAPPA AND 6 OTHERS VS. GOVERNMENT OF TAMIL NADU, REP. BY THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT AND OTHERS [2000 (2) L.W. 460] the Government Order in G.O.Ms.No.846, Education Department, dated 25.06.1990 downgrading the post of Secondary Grade Teacher as Junior Grade Teacher was put to challenge. This Court has held that the Government Order cannot downgrade the post of Secondary Grade Teacher created under the statute as Junior Grade Teacher. A learned single Judge of this court, followed the Division Bench judgment of this Court in G.RAJESH VS. STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, EDUCATIONL DEPARTMENT AND OTHERS [1995 WRIT L.R. 389]. The following passage in the judgment reported in G.RAJESH's case (cited supra) was extracted in para 14 of the judgment in S.PAPPA's case:
14.
. . . It is settled position of law that when the field is occupied by the Statute, executive power cannot be exercised. Sub-section (3) of Section 6 specifically provides that the State Government can issue directions regarding the reservation of seats for the students belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. It is not possible to hold that the State Government, in exercise of its executive power, can issue a direction to the University to reserve seats for students falling under the sports category. It is, no doubt, true that the executive power, under Article 162 of the Constitution of India, extends to all matters to which the legislative power extends. But once that Legislative power is exercised and the field is occupied by the law, passed by the legislature, unless that law is amended, the executive power cannot be exercised contrary to those contained in the law. Sub-section (3) of Section 6 of the Act is the law relating to reservation of seats for a particular class or category, and there is no scope in that to add another category other than Schedule Caste, Schedule Tribe and Backward Class. Reservation for sports category is an additional class or category, which cannot be held to fall within Sub-section (3) of Section 6 of the Act. There is no other word or provision in Sub-section (3) of Section 6 of the Act which can be interpreted by applying the rule of ejusdem generis. Hence, we are of the view that, in the light of the provisions contained in Sub-section (3) of Section 6 of the Act, it is not open to the State Government to issue a direction for reservation to other categories other than specified in Section 6(3) of the Act. However, such a direction, if approved by the Syndicate, would be binding upon the University. In the instant case, the Government Order in G.O.Ms.No. 466, dated 8.6.1994 is not approved by the Syndicate. First point is answered accordingly.
It is clear from the said decision that when the field is occupied by the statute, executive power cannot be exercised. I have already stated that in our case also, the field has already been occupied by the legislature? and in the absence of any specific legislation by way of amendment, the Government cannot modify the statute by way of executive power, viz., by issuing the impugned Government Order to down grade the, existing post and also to create a post called Secondary Grade (Junior) Teacher. The dictum laid down by the Division Bench is directly applicable to our case. Thereafter, the learned Single Judge has held as follows in para 17 of the judgment in S.PAPPA's case (cited supra):
17.......
In the light of the above legal position, even though it is stated by the learned Additional Advocate General that power to issue direction rests with the Government, I am of the view that when the field is occupied by the statute, the executive power cannot be exercised. By the impugned government Order the Executive down graded the post of Secondary Grade Teacher created under the statute as Secondary Grade (Junior) Teacher. In such a circumstance, I am in agreement with the contention, raised by the learned Counsel for the petitioners that without amending the Rules, it is not open to the Government to down grade the post of Secondary Grade Teacher. 18(iv).In the Division Bench judgment of this Court in N.PRIYADARSHINI VS. THE SECRETARY TO GOVERNMENT AND ANOTHER [2005 (3) L.W. 101] a similar legal issue arose for consideration. Paras 24 and 27 to 31 are relevant and the same are extracted hereunder:
24. As already stated above, the 1997 Medical Council Regulations ( quoted above) amount to delegated legislation, and are hence to be treated as part of the Medical Council Act. On the other hand, the impugned G.O.Ms.No.184, Higher Education (J2) Department, dated 09.06.2005 is a purely executive order. It is well settled that an executive order cannot over ride the statutory rules or regulations.
27. In this connection, it may be mentioned that according to theory of the eminent jurist Kelsen (the pure theory of law) in every country there is a hierarchy of laws and the general principle is that a law in a higher layer of this hierarchy will prevail over the law in a lower layer of the hierarchy (see Kelsens's "The General Theory of Law and State"). In our country this hierar chy is as follows: -
(i)The Constitution of India.
(ii) Statutory law (which may be either Parliamentary law or law made by the State legislature).
(iii) Delegated Legislation (which may be in the form of rules made under the statute, regulations made under the statute, etc)
(iv) Purely administrative or executive orders.
The 1997 Regulations framed by the Medical Council of India (as also those framed by the All India Council for Technical Education and the Dental Council) are norms in the third layer in this hierarchy. On the other hand, the impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 is in the 4th layer of the hierarchy. Hence, if there is a conflict between the two, the Regulations will prevail. In our opinion, there is a clear conflict between the two, because the G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 has done away with the system of common entrance examination test, although admittedly there are several examining bodies/boards in the State of Tamil Nadu.
28. In Virender Singh Hooda v. State of Harayana, (2004) 12 SCC 588 it was held that executive instructions which are contrary to the rules will be invalid. In paragraph 24 of the aforesaid judgment, the Supreme Court observed: -
"In law if an executive instruction is contrary to the statutory rules, the rules will prevail and not the executive instructions."
29. In Union of India v. Arun Kumar Roy, AIR 1986 SC 737 (vide para 15), the Supreme Court observed:-
"A notification has no statutory force. It cannot override rules statutorily made governing the conditions of service of the employees."
30. Similarly in Union of India v. Madras Telephone SC & ST Social Welfare Association, (2000) 9 SCC 71 (vide paragraphs 17 & 19) the Supreme Court observed: -
"Once the statutory recruitment rules came into force the earlier administrative instructions cannot be adhered to and will have no force"
31. Similarly in Shish Ram v. State of U.P, (1996) 10 SCC 166 (vide paragraph 5), the Supreme Court observed: -
"When the statutory rules came to be made increasing their scale of pay and making them eligible for promotion directly to the post of gazetted cadre class II from Assistants, Head Accountants, Stenographers etc. to a pay scale of Rs.500-900, it would be obvious that the executive instructions issued earlier had to yield place to the statutory rules."
The same view has been taken by a Full Bench of the Allahabad High Court in Vijay Singh v. State of U.P., 2005 LIC 505 (vide paragraphs 6 to 11) Thus, as held in para 27 of the judgment reported in 2005(3) L.W.101, the Special Rules for Tamil Nadu Educational Subordinate Service framed under Article 309 of the Constitution lies in higher layer of the hierarchy over the executive order of the Government in G.O.Ms.No.107, which is in lower layer of hierarchy and therefore, the Special Rules would prevail over G.O.Ms.No.107.
19.In my view, G.O.Ms.No.107 cannot prescribe a condition contrary to the statutory rules, namely, the Special Rules for Tamil Nadu Educational Subordinate Service.
20.The reliance placed on by the learned Additional Government Pleader in the Division Bench judgment of this Court in THE CHAIRMAN, TEACHERS RECRUITMENT BOARD AND ANOTHER VS. V.KANIMOZHI in W.A.No.805 of 2014 dated 06.08.2014 is of no use. It is true that the Division Bench has held that for employment in public service, candidates should have passed +2 before obtaining a degree, as per G.O.Ms.No.107. But in that case, the recruitment rules framed under Article 309 of the Constitution of India did not come for consideration. The Division Bench did not hold in the said decision that though the statutory rules / the statute relating to recruitment prescribe a degree as the qualification for the post, the candidate should also fulfill the condition of a pass in +2 as contained in G.O.Ms.No.107. Then it is a different matter. I am of the view that the judgment of the Division Bench cannot be understood in the way the respondents 1 to 3 have understood, since such an understanding is contrary to the well settled position that the statutory rules would prevail over the administrative instructions / executive orders. Thus, unless the Special Rules for Tamil Nadu Educational Subordinate Service are amended requiring that one should have passed +2 besides possessing a valid degree, recruitment / promotion to the Class II post of Special Rules, namely, Tamil Pandit shall not be denied to the persons who satisfy the requirements of the Special Rules.
21(i).At this juncture, it is relevant to extract Clause 2 (1) of the UGC Regulations, 1985, dated 25.11.1985, which reads as follows:
2. Admission / Students:
1.No student shall be eligible for admission to the 1st Degree Course through non formal / distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board / University. In case there is no previous academic record he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 21 years on July 1 of the year of admission. The above said underlined portion of the UGC Regulations, 1985, makes it clear that even a person, without any academic record, shall be eligible for admission to a degree course, under the distance education mode, if he has passed an entrance examination conducted by the concerned University. The only condition prescribed is that he should not be below the age of 21 years as on July 1 of the year of admission.
21(ii). In fact, the aforesaid underlined portion of Clause 2(1) of the UGC Regulations, 1985, was noticed by a Division Bench of this Court in para 14.1. of its judgment in N.Ramesh V. Sibi Madan Gabriel reported in (2008) 3 MLJ 255. The relevant passage from para 14.1. of the judgment in (2008) 3 MLJ 255 is extracted hereunder :
14.1 In respect of student who had no previous academic record, as per Regulation-2, such person shall be eligible for admission to the first degree course through non-formal/distance education, if he has passed an entrance test conducted by the University. ...... 21(iii). The said judgment reported in (2008) 3 MLJ 255 was confirmed by the Apex Court in ANNAMALAI UNIVERSITY V. SECRETARY TO GOVERNMENT, INFORMATION AND TOURISM DEPARTMENT reported in (2009) 4 SCC 590.
22.In this case, the petitioners have satisfied the aforesaid criteria prescribed in Clause 2(1) of the UGC Regulations, 1985. All the petitioners passed 10th standard. Thereafter, they appeared for the entrance examination conducted by the Madras University / Annamalai University respectively. The first petitioner appeared for the entrance examination as per the certificate issued by the Madras University before admission to the degree course that is found place at page no.56 of the typed set of papers. The second petitioner appeared for the entrance examination as per the certificate issued by the Madras University that is found place at page no.94 of the typed set of papers. The petitioners 3 to 6 appeared for the entrance examination conducted by the Annamalai University as per the certificates issued by the Annamalai University to the individuals concerned that are enclosed at page nos.95 to 98 of the typed set of papers. Thus, the petitioners obtained B.Lit., degree as per Clause 2(1) of UGC Regulations, 1985. At this juncture, it is relevant to extract paragraph 5 of the counter-affidavit of the fourth respondent Madras University, which is as hereunder :
5. As per the notification issued by the University Grants Commission in No.G.1117/83(CP) dated 25.11.1985, as amended on 18.10.1995 in No.F.1-117/83(CPP-II), under Section 26 of the University Grants Commission Act, the required eligibility clause for admission into the B.A. Degree course is a pass in +2 examination or a pass in Entrance Test conducted by the concerned university. All the petitioners passed entrance examination conducted by the university and got themselves into the B.Lit course and passed the same. The degree obtained by the petitioners is a valid one and in accordance with the Notification issued by the Central Agency. Hence, the degrees obtained by them are valid. The petitioners have thus possessed the qualification as prescribed under the Special Rules.
23.The learned Additional Government Pleader has not disputed the aforesaid fact. But the learned Additional Government Pleader submitted that the petitioners did not pass +2 before they obtained degree, as per G.O.Ms.No.107 and subsequent pass in +2 after obtaining degree would not make them eligible as per G.O.Ms.No.107 and hence, they are not eligible for promotion to the post of Tamil Pandit. I have rejected the said contention, as it is against the well-settled law that the executive order would not prevail over the Statutory Rules.
24.Further, a reading of G.O.Ms.No.107 reveals that the same was issued based on the recommendations of the Equivalence Committee. G.O.Ms.No.107 refers to G.O.Ms.No.180, P & AR Department, dated 11.09.2000. G.O.Ms.No.180 states that a degree/post graduate degree obtained in open university system is equal to a degree/post graduate degree obtained in conventional stream, for the purpose of employment and promotion in public service. It seems that the said G.O. was also issued based on the recommendations of the Equivalence Committee. G.O.Ms.No.180, shall be understood that degree/post graduate degree referred to therein is a valid one, as per the UGC Regulations, 1985.
25.In fact, it is no doubt true that a degree obtained in whatever mode, either through correspondence system or through conventional mode, shall be treated as equivalent in respect of the standard. A degree obtained through informal system is not inferior to the degree obtained through conventional (formal) system. G.O.Ms.No.180 reiterates the said principle. In fact, such a principle is laid down in ANNAMALAI UNIVERSITY V. SECRETARY TO GOVERNMENT, INFORMATION AND TOURISM DEPARTMENT reported in (2009) 4 SCC 590. At this juncture, it is relevant to take note of the fact that the Apex Court has laid down the following ratios, among other things, in ANNAMALAI UNIVERSITY's case :
(a) A degree or post graduate degree awarded in violation of the UGC Regulations 1985 is invalid ;
(b) The UGC Act would prevail over the Open University Act ; and
(c) No distinction shall be made with respect to standard of the degree awarded in formal system and informal system, if the degree is awarded as per the UGC Regulations, 1985.
26.The Apex Court has held in paragraph 41 of the judgment in ANNAMALAI UNIVERSITY's case that there is no distinction in standard between the formal system and the informal system of education and the same is extracted hereunder :
41. Was the alternative system envisaged under the Open University Act was in substitution of the formal system is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and informal system is in the mode and manner in which education is imparted. UGC Act was enacted for effectuating co- ordination and determination of standards in Universities. The purport and object for which it was enacted must be given full effect.
27.While holding so in paragraph 41 of the judgment in ANNAMALAI UNIVERSITY's case, the Apex Court has held that post-graduate degree obtained in distance education mode in that case contrary to and in violation of the UGC Regulations is not a valid one.
28.In my view, the same is also applicable to a degree or post-graduate degree in conventional system, if the same is awarded in contravention of UGC Regulations. For instance, if a degree is awarded with a duration of one year even in a regular stream, the same is not a valid degree, as the UGC Regulations, 1985 prescribes 3 years duration for degree course.
29(i).Further, I am of the considered view that in view of the categorical pronouncement of the Apex Court in paragraph 41 of the judgment in ANNAMALAI UNIVERSITY's case there cannot be any distinction between a degree or a post-graduate degree obtained through non-formal education and conventional mode.
29(ii). But, G.O.Ms.No.107 makes a distinction between a degree obtained in informal system without a pass in +2 and the degree obtained after passing +2 examination, either in formal or informal system. Such a distinction is contrary to clause 2(1) of the UGC Regulations, 1985 and paragraph 41 of the judgment of the Apex Court in ANNAMALAI UNIVERSITY's case.
30(i).In fact, an argument was advanced in ANNAMALAI UNIVERSITY's case that Open University Act was enacted by Parliament subsequent to the enactment of the UGC Act and therefore, the Open University Act, where under post graduate degree was awarded without a basic degree, would prevail over the UGC Act. The said argument was rejected in categorical terms by the Apex Court in that case holding that insofar as the higher education is concerned, the UGC Act and the Regulations framed thereunder hold the filed, since the power is referable to Entry 66 of List I of the Seventh Schedule to the Constitution of India, while the power for enacting Open University Act emanates from Entry 25 of List III of the Constitution. Ultimately, the Apex Court held that the UGC Act would prevail over the Open University Act. In this regard, it is useful to extract paragraph 50 of the judgment in ANNAMALAI UNIVERSITY's case. Paragraph 50 is extracted as hereunder :
50. The UGC Act, thus, having been enacted by Parliament in terms of Entry 66 of List I of the Seventh Schedule to the Constitution of India would prevail over the Open University Act. 30(ii).Applying the said principle that the degree / post graduate degree awarded through open university system under the Open University Act in contravention to the UGC Act / Regulations is invalid, the prescription of G.O.Ms.No.107 prescribing that a degree awarded in the informal system, without a pass in +2 course, as per the UGC Regulations, 1985, is not equivalent to a degree awarded after a pass in +2, under the conventional system or informal system, is bad and illegal.
31. In this regard, it is also relevant to extract paragraph 42 of the judgment in ANNAMALAI UNIVERSITY's case and the same is as follolws :
42. The provisions of the UGC Act are binding on all Universities whether conventional or open. Its powers are very broad. Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-Section (1) of Section 26 are of wide amplitude. They apply equally to Open Universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the co- ordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of the UGC are all pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12A and clauses (a) and (c) of sub- section (2) thereof.
32.The UGC Regulations, 1985, were framed by the UGC in exercise of its power conferred by Clause 26(i)(f) of the UGC Act, 1956. Therefore, paragraph 42 of the judgment in ANNAMALAI UNIVERSITY's case referred to above has made it clear that the regulations framed under Section 26 of the UGC Act have wide amplitude and are very broad in nature. It is also held that UGC Act are binding on all Universities whether conventional or open.
33. Thus, the Supreme Court has categorically held in ANNAMALAI UNIVERSITY's case that a post-graduate degree obtained through open university system contrary to Regulation 2 of the UGC Regulations, 1985, is bad. Clause 2 of the Regulations states that one should have obtained basic degree for getting admitted into a post-graduate degree course through open university system. In that case, the candidate did not possess basic degree before admission into a post-graduate degree course through distance education mode. The Supreme Court held that such a post-graduate degree is not valid.
34. In these circumstances, it is relevant to take note of Clause 2(1) of the UGC Regulations, 1985, which is already extracted above, insofar as the degree course through the distance mode is concerned. It is stated that a person, who has completed 12 years schooling or a person without any academic record, shall be eligible for admission to a degree course. However, a condition is laid that a person with no previous academic record shall pass the entrance test conducted by the concerned University, before admission to the degree course.
35. In this case, all the petitioners obtained degree through distance mode without passing +2, but they have passed 10th standard and thereafter, appeared for entrance examination, passed the entrance examination, got admission in degree course and obtained degree through distance mode. Hence, it is admitted by the respondents that the degree obtained by them is a valid degree. As a matter of fact, the petitioners also passed +2, after obtaining degree.
36. But reliance is placed on G.O.Ms.No.107 wherein it is stated that the Equivalence Committee has opined that the degree obtained in distance mode without a pass in +2 cannot be accepted for the purpose of public employment.
37. Later, another G.O.Ms.No.242, Higher Education (P1) Department, dated 18.12.2002, was issued and the same is referred to in paragraph 5 of the counter-affidavit of the respondents 1 to 3. The relevant passage in paragraph 5 of the counter-affidavit is extracted hereunder :
5. ...... the Government have issued G.O.Ms.No.242, Higher Education (P1) Department, dated 18.12.2012, in which, the following qualifications are treated on par with those who have obtained the degree after undergoing the 10th Standard, 12th Standard course under 10+2+3 pattern.
i.Degrees obtained from colleges, Open University, Distance Education after undergoing 10th Standard course and then 3 year Diploma Courses (10+3+3) ii.Degrees obtained from distance education after undergoing the 11th Standard course (old S.S.L.C.) and then the two years Teachers Diploma Course (11+2+3) iii.Degree obtained from distance Education after undergoing 10th Standard, and then two year I.T.I. Course (10+2+3) iv.10th Standard course, three diploma course and then two years degree course (Lateral Entry)(10+3+2)
38. Now certain degrees obtained through distance mode is held to be equivalent to the degree obtained in regular mode, even if the person did not pass +2, as per the aforesaid G.O.Ms.No.242. This G.O.Ms.No.242 is also based on the opinion given by the Equivalence Committee.
39. The Equivalence Committee is not a statutory Committee. It was constituted under G.O.Ms.No.441, Personnel and Administrative Reforms Department, dated 20.12.1993, to consider the issue of equivalence of degree. For example, if a post in public service requires a degree in Chemistry or equivalent, a question may arise as to whether a degree in Industrial Chemistry is equivalent to Chemistry. Then this issue has to be resolved by the Equivalence Committee, as per G.O.Ms.No.441. But the Equivalence Committee cannot go beyond the UGC Regulations and state that a degree obtained in distance education mode as per UGC Regulations is not on par with the degree obtained in regular stream, for appointment or promotion in public service. Such a recommendation / opinion of the Equivalence Committee, based on which G.O.Ms.Nos.107 and 242 were issued, was in contravention to the UGC Regulations, and in view of the declaration of law made by the Apex Court in Annamalai University's case, the Government Order, namely, G.O.Ms.No.107 contrary to the UGC Regulations, 1985, is bad and illegal.
40. The Apex Court has held that UGC Act and the Regulations framed thereunder would prevail over the Open University Act. In this case, the UGC Regulations, 1985, would certainly prevail over the G.O.Ms.No.107 and the prescription made in G.O.Ms.No.107 that a degree obtained in informal system without a pass in +2 is not equivalent to a degree obtained in formal system or informal system after passing of +2, is contrary to the law laid down by the Supreme Court in paragraph 41 of its judgment in ANNAMALAI UNIVERSITY's case, which is extracted above, apart from the other judgments that are dealt with in para 18(i) to 18(iv) of this judgment.
41(i). However, an argument was advanced that G.O.Ms.No.107 was upheld by a Division Bench of this Court in T.L.Muthukumar and Others V. Registrar General, High Court, Madras and Another reported in (2011) 2 MLJ 785. In my view,
(a) the Division Bench, while upholding G.O.Ms.No.107 on the ground that the G.O. is not opposed to UGC Regulations, 1985, did not consider the last portion of Clause 2(1) of UGC Regulations, 1985, as the same was not brought to its notice.
(b) Further, the Division Bench based its judgment also on the fact that the Rules framed by the High Court under Article 229 of the Constitution contain a similar provision as that of G.O.Ms.No.107 that an employee is not entitled to promotion, if he did not pass +2 course, but obtained a degree through non-formal education. At this juncture, it is relevant to extract para 18 of the Division Bench judgment in T.L.Muthukumar's case, as hereunder :
18. As discussed above, the rule framed by the High Court inter alia clearly lays down the qualification for the purpose of promotion from Categories 7, 8 and 9 to Category 6. It is clearly mentioned that for the purpose of promotion, a person must possess and hold the B.A./B.Sc./B.Com. Or other Bachelor's degree of the Madras University or of a recognized University. The rule does not recognize B.A. or B.B.A. degree from an Open University obtained by a candidate without having the basic +2 qualification. The condition contained in the High Court Service Rules, therefore, cannot in any way be superseded by other law not applicable to the employees of the High Court.
(c) Had the later portion of Clause 2(1) of UGC Regulations, 1985, been brought to the notice of the Division Bench that provides for admission to the degree course in non-formal system to persons without academic record, but based on passing of entrance examination conducted by the concerned university, the Division Bench could have held otherwise in respect of validity of G.O.Ms.No.107 and a similar provision in its Rules framed under Article 229 of the Constitution, in view of the judgment of the Apex Court in ANNAMALAI UNIVERSITY's case, more particularly, para 41 of the judgment of the ANNAMALAI UNIVERSITY's case.
41(ii). The Division Bench nowhere held that a degree obtained by a person in informal mode as per Regulation 2(1) of UGC Regulations, 1985, that provides for admission to a degree course to a person without any academic record, after passing the entrance examination, is invalid. In fact, the portion of Regulation 2(1) of UGC Regulations, 1985, that provides for admission to a degree course, without any academic record, but with a condition that the person should pass the entrance examination, did not come for consideration of the Division Bench and unfortunately the same was not brought to the notice of the Division Bench.
41(iii). Though it is a repetition, I would like to extract Clause 1 of Regulation 2 of UGC Regulations, 1985 as hereunder :
2. Admission/Students:
1. No student shall be eligible for admission to the 1st Degree Course through non-formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. In case there is no previous academic record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 21 years on July 1 of the year of admission.
.... The underlined portion of Regulation 2(1) of the UGC Regulations, 1985, was not considered by the Division Bench. The Division Bench proceeded as if Regulation 2(1) of the UGC Regulations, 1985, only provides that no person shall be eligible for admission to first year degree course through non-formal / distance education, unless he has successfully completed 12 years schooling. That is, the entire judgment of the Division Bench is based on the first portion of Clause 2(1) of the UGC Regulations, 1985, and the later portion of Clause 2(1) of UGC Regulations, 1985, that is underlined, did not come for consideration at all.
41(iv). In this regard, paragraphs 7 and 14 of the judgment in T.L.Muthukumar's case, are extracted hereunder :
7. ..... Learned Senior Counsel further submitted that G.O.No.107 dated 18.8.2009, is opposed to the aforesaid 1985 Regulations framed by the UGC and, therefore, such Government Order cannot be sustained in law. Learned Senior Counsel relied upon the decision of the Supreme Court in the case of Annamalai University V. Secretary to Government, Information and Tourism Department and Others (2009) 4 SCC 590 and submitted that the UGC Regulation shall prevail over any other Act and Rule framed by the State as also the Government Order issued by the State.
.....
14. From a perusal of Clause 2 of the 1985 Regulations and the ratio decided by the Supreme Court as quoted hereinbefore, it is manifest that for the purpose of obtaining a Post Graduate Degree a candidate has to satisfy and comply the mandatory requirements provided therein. According to the rule, no candidate shall be eligible for award of first degree unless he has successfully completed 12 years schooling. Similarly, no student shall be eligible to seek admission to the Masters course in any faculty, who has not successfully pursued the first degree course of three years duration. 41(v). Thus, the Division Bench, in those circumstances only, held that the Government has executive power under Article 162 of the Constitution to issue administrative instructions by way of G.O.Ms.No.107 in conformity with the UGC Regulations.
41(vi). In fact, I have also considered the judgment in T.L.Muthukumar's case in paragraph 37 of my judgment dated 21.04.2014 in W.P.Nos.13054 of 2011 etc. batch. Paragraph 37 of the said judgment is extracted hereunder :
37. The learned Additional Advocate General and the learned Senior Counsel for the TNPSC relied on the judgment of the Division Bench of this Court, in T.L.Muthukumar and Others V. Registrar General, High Court, Madras and Another (2011) 2 MLJ 785, wherein, the Division Bench upheld the validity of G.O.Ms.No.107. But the said judgment nowhere held that the degree obtained by a person in the non-formal/distance mode as per Clause 1 of Regulation 2 of 1985 UGC Regulations that provides for admission to the degree course after passing the entrance examination is invalid. Then it is a different matter. Therefore, I am not in agreement with the submission of the learned Additional Advocate General and the learned Senior Counsel for the TNPSC that the Division Bench in that judgment declared that the degree obtained by a person through distance mode after passing the entrance examination as provided in 1985 UGC Regulations is not a valid degree. No such finding was rendered by the Division Bench, as contended by the learned Additional Advocate General and the learned Senior Counsel for TNPSC. 41(vii). Further, the Division Bench in the judgment in T.L.Muthukumar's case considered the rules framed by the High Court under Article 229 of the Constitution of India providing service conditions of its employees including condition for promotion. Rules framed under Article 229 of the Constitution by the High Court, does not recognize B.A., or B.B.A., degree from an Open University obtained by candidate without having the basic +2 qualification. That is, the Rules framed under Article 229 of the Constitution also have the similar stipulation as contained in G.O.MsNo.107 and in that context, G.O.Ms.No.107 was upheld by the Division Bench.
41(viii).Therefore, the Division Bench judgment in T.L.Muthukumar's case cannot be understood as if it has upheld G.O.Ms.No.107 independently of the rules framed by the High Court under Article 229 of the Constitution. Since, the Rules framed under Article 229 of the Constitution contains the same condition, that is found in G.O.Ms.No.107, the G.O.Ms.No.107 was upheld. If the G.O.Ms.No.107, was in conflict with the Rules framed under Article 229 of the Constitution, the G.O.Ms.No.107 could not prevail over the Rules framed under Article 299 of the Constitution.
42(i).In T.L.Muthukumar's case, the Division Bench, though did not hold that the degree obtained through informal system without a pass in +2 is invalid, recorded in paragraph 14 of its judgment that the UGC Regulations, 1985, provide for admission to a degree course through informal system only if a person has completed 12 years of schooling. While recording so, unfortunately, the above underlined portion of Clause 2(1) of UGC Regulations, 1985, that provides for admission to a degree course through informal system to persons without academic record, but with the condition that such persons should have passed the entrance examination before admission to the degree course, was not brought to the notice of the Division Bench, as discussed above. Since the aforesaid first portion of Clause 2(1) of the UGC Regulations, 1985, was alone taken note, the Division Bench came to the conclusion that there is nothing wrong in G.O.Ms.No.107 prescribing that one should have obtained degree after passing +2 course, either in conventional mode or distance education mode. The Division Bench, while not noticing the later portion of Clause 2(1) of the UGC Regulations, 1985, upheld G.O.Ms.No.107, based on the rules framed by the High Court under Article 229 of the Constitution of India, which stipulates the same condition that is stipulated in G.O.Ms.No.107.
42(ii).In these circumstances, the Division Bench in THE CHAIRMAN, TEACHERS RECRUITMENT BOARD AND ANOTHER VS. V.KANIMOZHI [W.A.No.805 of 2014 dated 06.08.2014], while considering the judgment in T.L.Muthukumar's case held that the degree obtained in open university system without a pass in +2, but after passing the entrance examination is a valid degree. But the Division Bench in KANIMOZHI's case held that such a person, holding a valid degree, is not entitled to public employment, in view of G.O.Ms.No.107, as discussed by me. The Division Bench in this judgment in KANIMOZHI's case had no occasion to consider the effect of the Special Rules that are framed under Article 309 of the Constitution that provides for a mere degree without prescribing a pass in +2 before obtaining a degree.
42(iii).That is, while in T.L.Muthukumar's case, the Division Bench found that the condition stipulated in the rules framed by the High Court under Article 229 of the Constitution is similar as that of the condition stipulated in G.O.Ms.No.107, the Division Bench in the judgment in KANIMOZHI's case had no occasion to consider the effect of the Special Rules that are framed under Article 309 of the Constitution.
43(i). In this case, the Special Rules for Tamil Nadu Educational Subordinate Service that provides for recruitment and promotion to the post of Tamil Pandit, nowhere states like the rules framed by the High Court under Article 229 of the Constitution.
43(ii). The Special Rules only states that a candidate should possess a degree of a University in the State. Nowhere the Special Rules states that the candidates should also pass +2, as stated in the Rules framed under Article 229 of the Constitution. Therefore, the Division Bench judgment in T.L.Muthukumar's case cannot be of any use to the Government.
44. In the light of Clause (1) of Regulation 2 of UGC Regulations, 1985, and the Special Rules for the Tamil Nadu Educational Subordinate Service Rules and also para 41 of the judgment of the Apex Court in ANNAMALAI UNIVERSITY's case, I am of the view that the impugned list is bad and illegal and the reliance placed by the respondents to sustain the same based on G.O.Ms.No.107 is of no use, in view of Regulation 2 of UGC Regulations, 1985 and the Special Rules for the Tamil Nadu Educational Subordinate Service Rules framed under Article 309 of the Constitution shall prevail over G.O.Ms.No.107.
45.In view of my aforesaid conclusion, I am of the view that the writ petition has to be allowed. Accordingly, the impugned order is quashed insofar as showing the petitioners as ineligible candidates for not passing +2 examination, though they are in possession of a valid degree and a consequential direction is issued to the respondents to give promotion to the petitioners from the date on which their immediate juniors were promoted, with all monetary benefits, within a period of eight weeks from the date of receipt of a copy of this order.
46.The writ petition is allowed in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
15 / 10 / 2014 Index : Yes Internet : Yes Note : Issue order copy on 20.10.2014 TK/gg To
1.The Secretary to Government Government of Tamil Nadu School Education Department Fort St. George, Chennai 600 009.
2.The Director of School Education, College Road, Chennai 600 006.
3.The Joint Director of School Education (Personnel), College Road, Chennai 600 006.
4.The Registrar, Madras University, Chepauk, Chennai 600 005.
5.The Registrar, Annamalai University, Chidambaram, Cuddalore District.
D.HARIPARANTHAMAN, J.
TK ORDER MADE IN W.P.NO.28172 OF 2013 15 / 10 / 2014