Madras High Court
L.Jeyaseelan vs The District Collector on 5 April, 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/04/2007 CORAM: THE HONOURBLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE K.VEERARAGHAVAN WRIT PETITION (MD) Nos.910 of 2007 WRIT PETITION (MD) No.392 of 2007 WRIT PETITION (MD) No.1813 of 2007 WRIT PETITION (MD) No.1814 of 2007 WRIT PETITION (MD) No.1815 of 2007 WRIT PETITION (MD) No.1816 of 2007 WRIT PETITION (MD) No.1817 of 2007 WRIT PETITION (MD) No.1818 of 2007 WRIT PETITION (MD) No.1819 of 2007 WRIT PETITION (MD) No.1820 of 2007 WRIT PETITION (MD) No.1821 of 2007 WRIT PETITION (MD) No.1822 of 2007 WRIT PETITION (MD) No.1823 of 2007 WRIT PETITION (MD) No.1824 of 2007 WRIT PETITION (MD) No.2972 of 2007 WRIT PETITION (MD) No.1813 of 2007 WRIT PETITION (MD) No.11764 of 2006 WRIT PETITION (MD) No.11765 of 2006 WRIT PETITION (MD) No.11766 of 2006 WRIT PETITION (MD) No.11767 of 2006 WRIT PETITION (MD) No.11768 of 2006 WRIT PETITION (MD) No.11769 of 2006 WRIT PETITION (MD) No.11770 of 2006 WRIT PETITION (MD) No.11771 of 2006 WRIT PETITION (MD) No.11772 of 2006 WRIT PETITION (MD) No.11773 of 2006 WRIT PETITION (MD) No.11774 of 2006 WRIT PETITION (MD) No.11775 of 2006 WRIT PETITION (MD) No.11641 of 2006 WRIT PETITION (MD) No.11642 of 2006 Contempt Petition (MD) No.89 of 2007 W.P.(MD)No.910 of 2007 L.Jeyaseelan ... Petitioner vs. 1.The District Collector, Ramanathapuram. 2.The Chief Educational Officer, Ramanathapuram. 3.The District Elementary Educational Officer, Ramanathapuram District. 4.The District Employment Exchange Officer, Ramanathapuram District. ... Respondents Writ Petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorari by calling upon the records on the file of the 3rd respondent in Na.Ka.No.3000/Aa.2/2006 dated Nil (December 2006) and quash the same. !For petitioners ... Mr.S.M.S.Johnny Basha in all the W.Ps. And Cont.Petn.,except in WPs 392/2007 & W.Ps.11641 & 11642 of 2006 For Petitioner in ... Mr.V.Sitharanjan Das for WP 392/2007 Mr.V.Nagarajan For Petitioners in ... S.N.Ravichandran WPs 11641 & 11642/2006 ^For Respondents ... Mr.R.Janakiramulu, In all the Petitions Spl.Govt.Pleader. Assisted by Mr.M.Rajarajan, Government Advocate. :COMMON ORDER
(Order of the Court was made by F.M.IBRAHIM KALIFULLA,J) In W.P.(MD)No.910/2007, the petitioner seeks to challenge the proceedings of the third respondent, the District Elementary Educational Officer, Ramanathapuram District, in Na.Ka.No.3000/Aa.2/2006 dated Nil (December 2006), in and by which, the third respondent called upon such of those candidates who applied for the post of Secondary Grade Teachers for verification of their certificates. In the annexure to the said letter, it is stated that the name of the concerned candidate has been sponsored by the Employment Exchange, as per their letter dated 13.12.2006, subject to the condition that the said candidate is not employed in a private school and that the candidate should therefore produce satisfactory certificates to ensure that he/she is not employed in any Government aided schools.
2.In W.P.(MD)Nos.11764 to 11775 of 2006, W.P.(MD)Nos.1813 to 1818 of 2007 and in W.P.(MD)No.3019 of 2007, the petitioners seek to challenge the proceedings of the first respondent therein, namely the District Employment Exchange Officer, in No.AA.A3 2127/06 dated 15.12.2006, in and by which, the first respondent has intimated about the deletion of the name of the concerned candidate from the Live Register but transferring the same to the Employed Register on the ground that he/she is employed in a Government Aided Private School as a Secondary Grade Teacher and receiving time scale of pay.
3.In W.P.(MD)Nos.1819 to 1824 of 2007, the petitioners seek for issuance of a writ of mandamus directing the District Employment Exchange Officer to sponsor the names of the petitioners to respondents 2 to 4 to be considered for the post of Secondary Grade Teachers.
4.In W.P.(MD)No.2972 of 2007, the petitioner seeks for the issuance of a writ of certiorarified mandamus to call for the records relating to the impugned proceedings in Na.Ka.No.3000/AA.2/2006, dated 11.03.2007, in which appointment orders were issued to 92 candidates without considering the case of the petitioner and therefore to quash the said order and to direct the respondents to conduct a selection process afresh, in accordance with law.
5.In W.P.(MD)No.392/2007, the petitioner, namely Ramanathapuram Maavatta Payirchipetra Edainilai Asiriyarkal Nala Sangam, prays for issuance of a writ of mandamus to forbear the respondents from filling up the existing vacancies of Middle School Teachers in various schools of Ramanathapuram District by appointing candidates who are already in service in private schools or Government aided schools and by the candidates who have registered their names with the third respondent by way of transfer from other districts and also with the candidates whose names continue to appear in the Register of 3rd respondent for employment before 13.11.2002 in the case of backward classes and 05.04.2004 in the case of Most Backward Classes and Scheduled Classes as claimed by the petitioner in its representations dated 31.07.2006, 04.09.2006, 18.12.2000 and 08.01.2007.
6.In W.P.(MD)Nos.11641 and 11642 of 2006, the petitioners seek for issuance of a writ of mandamus directing the respondents to make selection/appointment for the post of Secondary Grade Teacher for the year 2006- 2007 only after revising the seniority list sponsored by the District Employment Exchange, Sivagangai following the mandatory procedures by deleting the candidates who were already employed in private aided schools on the date of sponsoring the list/selection for the year 2006-2007.
7.In Contempt Petition (MD) No.89/2007, the petitioner has prayed this Court to punish the respondents for committing grave contempt and gross disobedience of the order passed by this Court in M.P.(MD)No.1/2007 in W.P.(MD)No.910 of 2007, dated 05.03.2007.
8.In all these cases, the grievances of various petitioners stem from the step taken by the Director of Elementary Education in his Notification dated 07.07.2006. By the said Notification, steps were taken for filling-up the posts of Secondary Grade Teachers in different districts by following the guidelines mentioned therein. By the said proceedings, the Director of Elementary Education, among other things, also directed that the age restriction should be followed as prescribed in G.O.Ms.No.59, School Education (M-1) Department, dated 12.06.2004.
9.Pursuant to the said proceedings, the Chief Educational Officer of Ramanathapuram District identified the total number of posts of secondary grade teacher to be filled as 117 and called upon the District Employment Officer to sponsor the list of candidates as per their seniority. A statement was also enclosed furnishing the various requirements to be complied with while sponsoring the candidates. The District Employment Officer in his proceedings dated 15.12.2006 addressed to the Chief Educational Officer, Ramanathapuram and while furnishing the details of the candidates sponsored, also stated that while calling upon those candidates for interview make necessary verification as to their employment status in any private school and only after duly informing the District Collector any appointment should be made.
10.That apart, by a communication dated 14.08.2006, the Special Commissioner of the Employment Exchange advised the District Employment Officers at Ramanathapuram to the effect that the names of 60 persons who were found to be employed in Government aided private schools should be removed from the live register, that such of those teachers who were employed in the Government aided private schools and who produced no objection certificates from their employer and whose names have been transferred to the Employed Register their names can be sponsored maintaining their respective seniority apart from giving certain other directions. Pursuant to this, the proceedings impugned in W.P.(MD)No.910/2007 came to be issued by the District Elementary Educational Officer, Ramanathapuram.
11.It is in the above stated background, when the respective Elementary Educational Officers issued call letters, these writ petitions came to be filed for the redressal of their grievances insofar as to the extent to which they were aggrieved.
12.Mr.S.M.S.Johnny Basha, learned counsel appearing for the petitioners in W.P.No.910, 1813 to 1824, 2972 and 3019 of 2007, 11764 to 11775 of 2006 and Contempt Petition No.89 of 2007, made his submissions in the first instance. According to the learned counsel, his petitioners were employed in minority schools in Ramanathapuram District, that their names were registered with the Employment Exchange, that they joined such minority institutions on their own and that the impugned order dated 15.12.2006 issued by the District Employment Officer, Ramanathapuram and the one issued in December 2006 by the Elementary Educational Officer, Ramanathapuram in depriving their opportunity to secure employment in Government Schools is Constitutionally invalid and also contrary to the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. At the outset, the learned counsel contended that the impugned proceedings of the District Employment Officer, Ramanathapuram, dated 15.12.2006, in suo-motu removing the names of the petitioners from the Live Register to the Employed Register, without giving any opportunity, was liable to be set aside. According to the learned counsel, the presumption drawn by the District Employment Officer and consequentially by the District Elementary Educational Officer in treating such of those candidates who worked in Government aided private schools to deprive them to seek for employment in Government schools was in violation of Article 16(1) of the Constitution of India, that such an action also restricts the right of the concerned petitioners to choose their employment and thereby violates Article 19(1)(g) of the Constitution and since this practice was followed only in Ramanathapuram District it is liable to be set aside. The learned counsel then contended that some of the candidates who were shortlisted for appointment were also employed in Government aided private schools and therefore the non-consideration of the petitioners on the very same ground resulted in discrimination violating Article 14 of the Constitution. According to the learned counsel, when the Hon'ble Supreme Court in the decision reported in 1996(6) SCC 216 - Excise Supdt., Malkapatnam vs. K.B.N.Visweshwara Rao has held that in addition to the calling for names from the Employment Exchange, the employer should also call for names by publication in newspapers and other sources in order to have a wide scope for all eligible candidates to apply, the restricted manner in which the scope of selection was made rendered the whole selection in valid. The learned counsel also relied upon the decision reported in 2006(8) SCC 111 - Arun Kumar Nayak v. Union of India, wherein the decision reported in 1996(6) SCC 216 came to be approved.
13.Mr.V.Sitharanjan Dass, learned counsel appearing for the petitioner in W.P.(MD)No.392 of 2007, on the other hand contended that the non- consideration of the candidates who are already employed in Government aided private schools having got the benefit of the time scale of pay applicable to a Secondary Grade Teacher in Government service with all the benefits, including the terminal benefits, the grievances of the petitioners represented by Mr.Johnny Basha in W.P.Nos.11764 to 11775 of 2006 etc. should not be countenanced. According to the learned counsel, as between an employed teacher in a Government aided school with all the above benefits and security of employment to his/her advantage, they can never be treated on par with an unemployed candidate in order to state that there was any constitutional violation in not permitting them to participate in the selection. Learned counsel further contended that such of those candidates who have secured employment even in the present selection who were already employed in the Government aided private schools having secured such employment by suppressing their present employment status cannot be a ground of discrimination as submitted by the petitioners in W.P.No.910 of 2007, etc. Learned counsel, therefore, contended that any selection and appointment made in respect of those teachers who were already employed in Government aided private schools is liable to be set aside. Learned counsel then contended that from among the candidates sponsored, there were candidates who got their registration in employment exchange in different districts got transferred to Ramanathapuram District in the recent past who also secured employment on the basis of their present registration and such registration having been secured in a clandestine manner, their selection and appointment cannot be sustained. Lastly, it was contended that the candidates belonging to Backward Classes whose names appeared in the third respondent Register, registered prior to 30.11.2002 and Most Backward Classes and Scheduled Castes whose registration was prior to 05.04.2004 are also not entitled for selection having regard to the fact that their names were considered in the earlier selection and therefore their selection and appointment if any should be interfered with.
14.Mr.S.N.Ravichandran, learned counsel appearing for the petitioners inW.P.Nos.11641 and 11642 of 2006, contended that such of those candidates who secured employment in Government aided private schools should have intimated about their employment to the respective employment exchange for deletion of their names from the live register and to be transferred to employed register, that even if they had failed to do so, the approving authorities of the education department ought to have furnished that information to the concerned employment exchanges or atleast the management concerned of private aided schools should have intimated the said fact to the employment exchanges and in the absence of any one of them has resulted in any such candidate having secured a selection and appointment in the present selection, such selection is liable to be set aside on the principle of 'suppressio veri and suggestio falsi'. According to the learned counsel, as per the declaration required to be submitted at the time of their selection, there was a specific column to be filled by the concerned candidate to state whether the concerned candidate is employed in a Government Service and in receipt of time scale of pay as a secondary grade teacher and when the concerned candidate has either answered in the negative or failed to fill-up the column in respect of the fact that such candidates were in receipt of time scale of pay in a Government aided school, their selection and appointment is liable to be interfered with. The learned counsel placed before the court the details of about 20 of such candidates who happened to be in the service of Government aided private schools and who have now been appointed in the Government Panchayat Union Schools, whose appointment, according to the learned counsel, is illegal and therefore liable to be set aside. The learned counsel relied on the decisions reported in 2005 (7) SCC 177
- A.P.Public Service Commission vs. Koneti Venkateswarulu and others; 2003 (3) SCC 437 - Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav; 2003(5) SCC 12 - Surendra Kumar Sharma vs. Vikas Adhikari and another; 1997(2) SCC 1 - Ashwani Kumar and others vs. State of Bihar and others; and 2004( 7) SCC 112 - A.Umarani vs. Registrar of Co-operative Societies and others in support of his submissions. Learned counsel also pointed out that while passing interim orders, this Hon'ble Court made it clear that any appointment made will be subject to the result of the writ petitions and in the event of this Court holding that their appointment is illegal, the same should be set aside.
15.Mr.S.N.Ravichandran also referred to G.O.Ms.No.1069, dated 29.04.1980 and contended that only when a person wants to register his name for any higher posts while already holding a post in a Government service, he is entitled to get his name be registered with the employment exchange, that too with the concurrence of the employer under whom he is already working. According to the learned counsel, in no other case an employed person is entitled to the benefit of securing employment through employment exchange. Secondly, the learned counsel contended that the candidates who were employed in Government Aided Schools are not entitled for their names to be sponsored through employment exchange even with the aid of 'no objection certificate' from their present employer by getting their names transferred to the employed register as that was not permissible under the provisions of the Employment Exchange Act.
16.The learned Special Government Pleader while resisting the case of the petitioner in W.P.(MD)No.910 of 2007 contended that after issuance of G.O.Ms.No.447 dated 16.09.1996, appointment of secondary grade teachers are made based on the employment exchange registration seniority, that their selection and appointment is made by the District Elementary Educational Officer based on the selection made by the committee consisting of the Chief Educational Officer as Chairman and District Educational/District Elementary Educational Officers as its members. It is also contended that the petitioner in W.P.No.910/2007 was issued with a call letter and he failed to come for certificate verification. It was further argued that the petitioner having been in the employment as a secondary grade teacher in the Government Aided School and receiving government salary, he is not entitled for being considered in the present selection. It was lastly contended that the selection committee having followed the guidelines issued in G.O.Ms.No.447 dated 16.09.1996, no interference is called for.
17.Having heard the learned counsel for the petitioners as well as the Special Government Pleader, at the outset, we wish to state that the appointment of a secondary grade teacher is primarily governed by the provisions of the Tamil Nadu Recognised Private Schools Regulation Act, 1973. Sections 19 and 20 of the Act, falling under Chapter-V of the said Act, stipulates how the qualifications, conditions of service, etc. of teachers and other persons employed in private schools and their appointment are to be governed. Under Section 19, it is stipulated that the Government can make Rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, Provident Fund, age of retirement and rights as respect of disciplinary matters of teachers and other staff employed in private schools). Sub-section (3) of Section 20 of the 'Act' stipulates that notwithstanding anything contained in sub-section (1) of Section 20, the Government may by general or special order whether prospectively or retrospectively among other things exempt any person as regards age and experience for appointment as a teacher or other employee in any private school, subject to such conditions as may be specified in such order. Rule 15(6) of the Tamil Nadu Recognised Private Schools Regulation Rules, 1973 specifies that the teacher and other person employed in a private school should possess the qualifications specified in Annexure -V. Clause (3) of Annexure-V is concerned with the post of secondary grade teacher and the prescribed qualifications are:
(i) S.S.L.C. and (2) T.S.L.C. for secondary grade or its equivalent.
18.Going by the provisions of the Act and the Rules and the Annexure in respect of a secondary grade teacher, while the qualification is SSLC and TSLC or its equivalent, the prescribed age is as provided under Section 20 of the Act. In G.O.Ms.No.59 dated 12.06.2004, as regards the panchayat primary, elementary, middle, high school and higher secondary schools and other teachers the State Government has prescribed the age limit as 35 years for entry into service and 40 years insofar as SC and ST are concerned. If the teacher happened to be a graduate, age relaxation is granted by five more years. However, in the very same G.O., in respect of secondary grade teacher, physical education teacher and special teachers, considering certain grievances expressed by them, the State Government removed the age limit of 35 years. Therefore, after the issuance of the said G.O. Dated 12.07.2004, as far as the secondary grade teacher is concerned, there is no age limit for being considered for making the appointment.
19.When the notification came to be issued by the Director of Elementary Education, dated 07.07.2006, among other things, it stated that the age restriction will be as governed by G.O.Ms.No.59, dated 12.06.2004. Therefore, going by the qualification prescribed under the Tamil Nadu Recognised Private Schools Regulation Rules read along with G.O.ms.No.59, dated 12.04.2004, any one who possesses the prescribed qualification, irrespective of his age, is entitled to compete for the selection. The only other restriction is placed in G.O.Ms.No.447, Education, Science and Technology Department, dated 16.09.1996, according to which appointment to the post of secondary grade teacher was to be made based on the selection by the selection committee consisting of Chief Educational Officer along with the District Educational/District Elementary Educational Officers, and going by the seniority in the registration in the respective employment exchanges. Therefore, if the registration of a candidate in the employment exchange for the post of secondary grade teacher is alive at the time when the selection is made, based on the sponsorship made by the concerned employment exchange, subject to the candidate fulfilling the prescribed qualification, he is entitled for the appointment to the post of secondary grade teacher.
20.Even the stand of the Government as reflected in the counter affidavit confirms the above legal position. The claim of the various petitioners in these writ petitions are therefore to be analysed in the above said background i.e., whether the selection challenged in these writ petitions was made in accordance with G.O.Ms.No.447, Education, Science & Technology Department dated 16.07.1996 and the compliance of Rule 15(6) of the Tamil Nadu Recognised Private Schools Regulation Rules read with Sections 19 and 20 of the Tamil Nadu Recognised Private Schools Regulation Act have been strictly adhered to.
21.One other document which was referred to by the parties is the Memo dated 14.08.2006 of the Special Commissioner of the Employment and Training, Chennai. In the said communication, as stated in detail in paragraph 10 of this order, one of the advice given to the District Employment Exchange Office at Ramanathapuram is that such of those teachers who are employed in private schools getting Government aid and whose names were removed from the Live Register but included in the Employed Register, based on the "no objection certificate' issued by the concerned Government aided private schools their names can also be sponsored duly maintaining their seniority. The question is whether such an advice issued by the Special Commissioner for Employment and Training can be taken to be a statutory instruction under Article 162 of the Constitution of India.
22.When we examined the said communication of the Special Commissioner, as stated by us earlier, it was by way of an advice to the District Employment Officer at Ramanathapuram. When it is only an advice, on that basis itself it can be safely held that it has no binding effect on any one, much less on the District Employment Officer, Ramanathapuram to whom such an advice was issued. Secondly, on a perusal of the provisions of the Employment Exchange Act, We do not find any provision clothing the Special commissioner with any such power to give such an advice which is in the nature of creating extraordinary right in favour of one class of teachers who have already secured employment in private schools where the salary is paid from the Government aid. Therefore, in the absence of any statutory prescription or even governed by G.O.Ms.No.447, dated 16.07.1996, it will have to be held that such an advice given by the Special Commissioner, Chennai in his communication dated 14.08.2006, is neither binding nor enforceable in law. Therefore, merely by getting a 'No Objection Certificate" from the present employer, namely the Government Aided Private School, a teacher who had already secured an employment cannot be heard to say that his or her registration should be held to have been kept alive with due seniority of its registration. It can also be stated that in the absence of any specific stipulation contained in the Notification dated 07.07.2006, by which alone the District Elementary Educational Officers have decided to go in for the filling up of the post of secondary grade teachers, it will have to be held that any other procedure, as has been stated by the Special Commissioner in his communication dated 14.08.2006, cannot be applied or followed.
23.The said issue can also be examined from a different angle, namely whether such a course can be adopted as one supported by any executive instructions. The said approach has to be necessarily made and examined, since apart from G.O.Ms.No.447, dated 16.07.1996, the State Government has issued certain other Government Orders as to how far the registration in an employment exchange can be permitted to be made irrespective of a person already entering in the service of the State. One such G.O. is G.O.Ms.No.1069, Labour and Employment Department, dated 28.04.1980. Under the said G.O., regular employees of the State Government/Local Bodies/ autonomous Bodies/State Government owned Corporations/ State Government Undertakings were allowed to register their names with the Employment Exchanges for higher posts under the Government/Public Sector Undertakings of Autonomous Bodies on production of 'No Objection Certificate' from their employers.
Even while granting scope for such re-registration for the regular employees, as far as the grant of 'No Objection Certificate' it was directed to be issued subject to certain other conditions. The prime condition being that the concerned employee can seek for such a re-registration only if the post for which he seeks for such a registration is one which is higher than the one he was already holding and whether it is higher as claimed by such a regular employee is left to the decision of the Head of Office of the Department, which would be final.
24.Therefore, the concept of getting a "No Objection Certificate"
from the existing employer for the purpose of revival of one's registration in the Employment Exchange should have been made available atleast in the form of a Government Order, which would definitely fall within the characteristic of an executive instruction governed by Article 162 of the Constitution of India. In this context, we can also refer to one other Government Order pertaining to School Education, which is G.O.Ms.No.986 dated 22.10.1991 which seeks to equate the status of the staff of aided schools under the School Education Department and to be treated on par with Government servants.
25.A consideration of the said G.Os., apart from making it clear that such extraordinary and special rights in respect of employees in Government Schools can be prescribed only by such valid orders of the State, also make it clear that a teacher employed in Government aided schools are to be treated on par with Government servants, though their employment may be in private schools. As far as the said status which is recognised by the State in the above referred to G.O. only go to show that a teacher who had already secured employment in a private school but Government aided, cannot be equated to that of an unemployed qualified teacher who is yet to secure a berth in either Government aided private school or in the Government School.
26.We have analysed the above position with particular reference to the above referred to Government Orders only to highlight that the so-called advice given by the Special Commissioner in his communication dated 14.08.2006 cannot acquire the status of an executive instruction nor that the said advice has to be mandatorily followed or such an advice would enure to the benefit of anyone who would be governed by such an advice.
27.In the above said background, when we considered the various claims in these writ petitions, in W.P.Nos.910 of 2007, the challenge is to the proceedings of the third respondent therein, namely District Elementary Educational Officer, Ramanathapuram District, which has been issued to the petitioner by way of a call letter to meet the third respondent along with required certificates and form. In the annexure to the said call letter, it is stated that the issuance of appointment letter will be made only after ascertaining the fact that the petitioner is not employed in any private school and that such a position is also certified in the form of 'no objection certificate' from the concerned Government aided private school. In W.P.No.1813 to 1824 and 3019 of 2007, 11764 to 11775 of 2006, the petitioners seek to challenge the proceedings of the District Employment Exchange Officer, Ramanathapuram, dated 15.12.2006, in and by which the District Employment Officer has intimated about the deletion of the name of the concerned candidate from the Live Register and transfer of the same to the Employment Register on the ground that he/she is employed in a Government Aided Private School as a Secondary Grade Teacher and receiving time scale of pay.
28.Admittedly, the petitioners in the above writ petitions are employed in Government aided minority schools on a permanent basis. It is to be remembered that as per the procedure followed in the office of the 4th respondent, namely the District Employment Officer, as disclosed in his proceedings dated 15.12.2006, such of those teachers whose names are mentioned in the list maintained in the office of the District Educational Officers, Ramanathapuram and Paramakudi, they are found to be employed in the time scale of pay in Government aided private schools and therefore their names were removed from the Live Register and maintained in the Employed Register. The question, therefore, is whether such of those teachers whose names have been removed from the Live Register can still claim that their names should be sponsored by the 4th respondent for the purpose of consideration of their appointment in the present selection. If once their status, namely 'unemployed teachers' ceases on securing employment in Government aided private schools by getting a time scale of pay, it will be wholly inequitable to state that irrespective of the said position they are legally entitled to be sponsored by the District Employment Exchange Officer for the purpose of securing an employment in Government schools as a teacher.
29.In view of the said position, the argument of the learned counsel for the petitioners in the above writ petitions that the petitioners' right are infringed vis-a-vis Articles 16(1), 19 and 14 of the Constitution cannot be countenanced. In order to invoke Article 16(1) of the Constitution, one should demonstrate that equals were treated in an unequal manner. When we have found that the petitioners who were employed in Government aided private schools, fitted in a time scale of pay, cannot be equated with that of an unemployed qualified teacher who is yet to get a berth either in a Government school or in a private school getting Government aid in the time scale of pay, the question of applying Article 16(1)of the Constitution does not arise.
30.As far as Article 19 is concerned, the argument of Mr.Johnny Basha, the learned counsel for the petitioners, is that by depriving the petitioners of their right to choose their employment, violation of Article 19 comes into play. The argument, in the first blush, may look attractive but, on a deeper scrutiny, it will have to be held that the right to choose should always yield to the larger interest of the unemployed group who are yet to get a chance for eking their livelihood. When the claim of the petitioners based on Article 19 of the Constitution is considered in the above said background, it will have to be held that the claim of the petitioners will have to yield to the larger interest of the unemployed lot whose interest has to be quenched in the first instance and when the State is not in a position to meet such a larger requirement of the unemployed lot, the grievance of the petitioners, namely that their right to choose employment is shattered pales into insignificance. We are, therefore, convinced that such an argument based on Article 19 of the Constitution cannot also be appreciated or countenanced.
31.When the submission based on Article 14 of the Constitution is considered, here again, we reiterate that when the petitioners cannot be treated on par with the unemployed lot, there is no question of any discriminatory treatment meted out to the petitioners. The question of discrimination will come into play only when equals are treated unequally. When the claim of the petitioners, as against the immediate requirement of the unemployed lot who are waiting in a long queue, is considered, there is no question of equals being treated unequally in order to consider the said grievance of the petitioners.
32.For the principle that unequals cannot claim equality, we draw support from the decision of the Hon'ble Supreme Court reported in AIR 2006 SC 2814 - A.P.B.C.Sangh v. Jharkhand State Vaishya Federation. In paragraph 20, the Ho'ble Supreme Court has stated as under:
"20. .... In our opinion, the amalgamation of two classes of people for reservation would be unreasonable as two different classes are treated similarly which is in violation of the mandate of Article 14 of the Constitution of India which is to "treat similar similarly and to treat different differently." It is well settled that to treat unequals as equals also violates Article 14 of the Constitution."
When such is the principle as regards equality, the claim of the petitioners cannot be considered on that ground. Therefore, none of the Constitutional violations complained of by the petitioners appeals to us in order to consider the claim of the petitioners.
33.One other argument of discrimination made by Mr.Johnny Basha, learned counsel for the petitioners, is that even from amongst the candidates who have selected for appointment some of them were employed in Government aided private schools and in receipt of time scale of pay and therefore on that ground as well the claim of the petitioners should be countenanced. At the very outset, we have to reject the said argument, since one illegality cannot enure to the benefit of the petitioners to state that a court should direct the very same illegality to be conferred in favour of the petitioners. If by any chance such an illegality had been committed by the concerned authorities, we would give appropriate directions to the concerned authorities to correct such illegalities, inasmuch as, while passing interim orders we made it clear that any appointment made will be subject to the ultimate result of these writ petitions. Therefore, we will not hesitate to give appropriate directions or orders for correcting such illegality and, therefore, on that score we do not find any scope to countenance the grievance of the petitioners. In this context, it will be appropriate to refer to the decision of the Hon'ble Supreme Court reported in 2006(1) SCC 667 - State of U.P. v. Neeraj Awasthi. In paragraph 75, the Hon'ble Supreme Court, following its earlier decisions reported in 1995(1) SC 724 - State of Andhra Pradesh vs. S.B.P.V.Chalapathi Rao ; 1999(3) SCC 494 - Jalandhar Improvement Trust v. Sampuran Singh; and 2000 (9) SC 94 - State of Bihar vs. Kameshwar Prasad Singh, held that no equality can be claimed in illegality. In the decision reported in 2000 (9) SCC 94 - State of Bihar vs. Kameshwar Prasad Singh, in paragraph 30, the Hon'ble Supreme Court has stated the legal position as under.
"30.The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. ..." (emphasis supplied)
34.The said principle has been reiterated in the decision of the Hon'ble supreme Court reported in AIR 2006 SC 2296 - U.P.State Sugar Corporation Limited vs. Sant Raj Singh. Paragraphs 28 and 29 of the said judgment read as under.
"28.Yet again in Union of India and another v. International Trading Co. And another [(2003) 5 SCC 437], this Court opined.
"A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. ...."
28.Moreover, Article 14 has a positive concept. Nobody can claim equality in illegality."
35.Mr.Johnny Basha, the learned counsel for the petitioners, relied upon the decision of the Hon'ble Supreme Court reported in 1996(6) SCC 216 - Excise Supdt., Malkapatnam vs. K.B.N.Visweshwara Rao to contend that the Hon'ble Supreme Court has stated that apart from sponsoring the names of candidates to the requisitioning department by the concerned Employment Exchanges, strictly according to seniority and reservation, the appropriate department or undertaking should call for names through publication in the newspapers having wide circulation and also by displaying on the notice boards or by making announcements on radio, television and news bulletins, as such a course would sub-serve fair-play. Learned counsel, therefore, contended that the consideration of the claim of the petitioners irrespective of their employment in Government aided private schools and receiving time scale of pay would fit into the ratio laid down by the Hon'ble Supreme Court. As far as the said submission is concerned, we have to necessarily refer to Rule 10(A) of the Tamil Nadu State and Subordinate Service Rules. The said rule specifically stipulates that where the posts are outside the purview of the Tamil Nadu Public Service Commission, recruitment should be made only by calling for names of eligible candidates from the Employment Exchange. The explanation to the said rule is applicable only in respect of specialised posts and that too where candidates are not available with the Employment Exchange. Therefore, so long as the said Rule 10(A) of the Tamil nadu Subordinate Service Rules remains in the Rule Book and in the absence of any valid challenge to the said rule as well as to G.O.Ms.No.447 dated 16.07.1996, we do not find any scope to apply the above said ruling of the Supreme Court. We also hasten to add that though in some of the cases there was no proper intimation either by the candidate concerned or by the appointing authority or by the concerned Educational Officer, the insistence by respondents 3 and 4 in attempting to ascertain the fact of the present employment of the concerned person, including the petitioners as to whether they are employed in Government aided private schools in time scale of pay is well justified and no fault can be found with such a procedure adopted by the respondents while finalising the selection and appointment to be made pursuant to the Notification, dated 07.07.2006.
36.While granting interim directions when this Court directed the respondents to issue call letters to the petitioners covered by W.P.No.910/2007 etc. batch, it was stated that the claims of those petitioners should be considered along with the other candidates. Pursuant to the said direction issued by this Court, though call letters were issued to these petitioners, it is brought to our notice that the first respondent, as one of the selection committee members, has now issued a communication dated 26.03.2007, to these petitioners stating that their cases were not considered on the sole ground that they did not get 'No Objection Certificate' from the concerned Government aided private schools where they are stated to be employed in time scale of pay. Strictly speaking, such an approach of the respondents 1 to 4 cannot be held to be proper compliance of our order dated 05.03.2007. When we directed the respondents to issue call letters to the petitioners for being considered for appointment to the post of secondary grade teachers, we directed them to consider dehors the non-production of 'no objection certificate' from the concerned Government aided private schools. Except expressing our dissent to the said wrong approach made by the selection committee, after issuing call letters to the petitioners, in view of our conclusion on the merits of the writ petitions, we do not wish to deal with the said communication for granting any relief to the petitioners. Accordingly, the Contempt Petition is closed.
37.Though in W.P.No.2972 of 2007, the petitioner seeks to challenge the appointment order issued to one Shyamala appointing her as a Secondary Grade Teacher in the Panchayat Board School at Nagercoil, the grievances of the petitioner are identical to the grievance raised by the petitioners in W.P.No.910/2007 etc. Batch. Therefore, this writ petition is also covered by the reasoning and the conclusions rendered in W.P.No.910/2007 etc. batch.
38.W.P.(MD)Nos.11641 and 11642 of 2006. In these two writ petitions, the petitioners seek for issuance of a writ of mandamus to direct the respondents therein, namely the State Government,the Director of Employment Exchange, the District Employment Officer, Sivagangai District and the District Elementary Educational Officer, Sivagangai to make a selection/appointment for the post of secondary grade teachers for the year 2006-2007 only after revising the seniority lists sponsored by the District Employment Exchange, Sivagangai by deleting the names of the candidates who were already employed in the Government aided private schools on the date of sponsorship. Since we have held while considering the grievances of the petitioners in W.P.(MD)No.910 of 2007 etc. Batch as to how the teachers employed in Government aided private schools and in receipt of time scale of pay are not entitled to be sponsored for the post of secondary grade teachers in Government Schools, the prayer of the petitioners in these two writ petitioners will be fully governed by the orders to be passed based on our conclusion.
39.(a) In W.P.(MD)NO.392/2007, the petitioner which is a 'Sangam", has combined three prayers in its writ petition. In the first instance, the petitioner pray for a direction to the respondents to forbear them from filling up the existing vacancies of middle school teachers in Ramanathapuram District by appointing candidates who were already in service in private school or Government aided private schools. In view of our conclusion reached in W.P.(MD)No.910/2007 etc. batch, we hold that the said prayer of the petitioner is well justified and we propose to issue appropriate directions on the basis of our conclusion in this order.
(b)As far as the other prayer, namely the candidates who have registered their names with the third respondent by way of transfer from other districts should not also be considered in the present selection, we are unable to see any justification on the part of the petitioner in making the said claim. When we put a question to the learned counsel for the petitioner as to whether there is any prohibition for anyone to get their registration transferred from one district to another district, the learned counsel was not able to refer to any such statutory provision or prohibition from making such a transfer. The petitioner has not come forward with any specific allegation with regard to any specific candidate who is stated to have indulged in any malpractice while seeking for such a transfer from some other district to the Ramanathapuram District Employment Exchange. Therefore, in the absence of any such specific allegation and in the absence of any such person having been impleaded as a party to the proceedings, no such relief as claimed by the petitioner can be granted in this writ petition. Therefore, we do not find any merit in the said prayer of the petitioner and the same is liable to be rejected.
(c)The other prayer of the petitioner is that such of those candidates whose names appear in the register of third respondent for employment prior to 13.11.2002 in the case of Backward Classes and 05.04.2004 in the case of Most Backward Classes and Scheduled Classes as claimed in the petitioner's representations dated 31.07.2006, 04.09.2006, 18.12.2006 and 08.01.2007 should not be sponsored. Here again, we have to state that such a prayer is too vague and on that sole ground the said prayer is liable to be rejected. When we perused the above referred to representations of the petitioner, we did not find any genuine reason or justifiable ground made out in order to exclude those categories of persons from being considered while making the present selection for appointment. Further, when the petitioner wants to exclude a particular class of persons from being considered, it is imperative that those who would be affected by such a claim of the petitioner should be heard if any relief is to be granted on that ground. The petitioner had not impleaded even one person from that category while seeking for such a relief as against a class as well. Therefore, it will be wholly improper if such a general prayer of the petitioner is to be countenanced at the instance of the petitioner. Therefore, we do not find any merit for granting any relief with regard to the said prayer of the petitioner and the said claim is also rejected.
40.In the result;
(i)we hold that such of those petitioners who were already employed in Government aided private schools and in receipt of time scale of pay are not entitled to be sponsored by the Employment Exchange as they cease to have their registration in the respective Employment Exchange Live Register.
(ii)The Memorandum of the Special Commissioner, dated 14.08.2006 as well as the impugned proceedings of the District Employment Officer, Ramanathapuram and Sivagangai Districts in stating that the sponsored candidates should establish that they are not employed in any other Government aided private schools and in receipt of time scale of pay is fully justified.
(iii)We also hold and direct that mere production of 'No Objection Certificate' from the present employer of any candidate who is employed in a Government aided private school and in receipt of time scale of pay cannot be acted upon for the purpose of issuance of call letter or for issuing the ultimate order of appointment based on the said 'No Objection Certificate'.
(iv)We also hold that once the name of the candidate is removed from the Live Register on the footing that he or she is employed in a Government aided Private School and in receipt of time scale of pay, he or she ceases and disentitled himself/herself from availing the benefit of sponsorship through the District Employment Exchange for securing an employment in Government Service. Applying the above test to the selection made pursuant to the Notification dated 07.07.2006 of the Director of Elementary Education, Chennai, if any person had been issued with the appointment order, who, as on the date of the call letter, was employed in a Government aided private school and in receipt of time scale of pay, such issuance of appointment letter is invalid and the same should be cancelled forthwith.
(v)The District Educational Officer/District Elementary Educational Officer as well as the District Employment Officer are directed to issue fresh call letters to such of those other available candidates registered with the respective District Employment Exchanges and who are otherwise eligible for being considered for appointment to the post of Secondary Grade Teacher and subject to satisfactory production of records, be issued with necessary orders of appointments.
(vi)The above said principles and directions shall be followed in the case of appointments made in the Sivagangai District also and orders passed.
vii)The Contempt Petition (MD) No.89/2007 is closed with the observations made as found in paragraph 36 of this Order.
(viii)W.P.(MD)No.910, 1813 to 1824, 2972 and 3019 of 2007 and W.P.(MD)Nos.11764 to 11775 of 2006 shall stand dismissed. Connected M.P.(MD)Nos.1 and 2 of 2007 in W.P.(MD) No.1813 of 2007, M.P.(MD)Nos.1 of 2007 in W.P.(MD)Nos.1814 to 1818 of 2007, M.P.(MD)Nos.1 and 2 in W.P.(MD)No.2972 of 2007 and M.P.(MD) No.2 of 2007 in W.P.(MD)No.3019 of 2007 are also dismissed. No costs.
(ix)W.P.(MD)No.392 of 2007 is partly allowed i.e. with regard to the first part of the prayer in the writ petition and the other two prayers of the petitioner is hereby rejected. No costs.
(x)W.P.Nos.11641 and 11642 of 2006 are allowed as per the directions contained in this order. No costs.
gb.
To:
1.The District Collector, Ramanathapuram.
2.The Chief Educational Officer, Ramanathapuram.
3.The District Elementary Educational Officer, Ramanathapuram District.
4.The District Employment Exchange Officer, Ramanathapuram District.