Madras High Court
Mr.B.Deepan Kumar vs The Government Of Tamil Nadu on 22 January, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:22.01.2014
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
W.P.No.29213 of 2012
and
M.P.No.1 of 2012
Mr.B.Deepan Kumar ... petitioner
Versus
1.The Government of Tamil Nadu
Secretary,
Education Department,
Fort St. George, Chennai.
2.The Directorate of Technical Education,
Guindy,
Chennai 600 026.
3.The Chairman,
Teachers Recruitment Board,
4th Floor, EVK Sampath Maaligai,
DPI Compound,
College Road,
Chennai 600 006. ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, calling for the records on the file of the 3rd Respondent with respect to the provisional selection list of chemistry lecturers in Government Polytechnic College for the year 2010-2011 published in website on 18.10.2012 pursuant to the advertisement dated 27.02.2012 in advertisement No.02/2012 and quash the same and consequently appoint the petitioner as Chemistry lecturer.
For petitioner : M/s.M.Sneha
For Respondents : Mr.V.Subbiah,
Special Government Pleader
O R D E R
The Petitioner has focused the instant Writ of Certiorarified Mandamus in calling for the records on the file of the third Respondent in regard to the provisional selection list of Chemistry Lecturers in Government Polytechnic College for the year 2010-2011 (published in website on 18.10.2012 pursuant to the advertisement dated 27.02.2012 in advertisement No.02/2012) and to quash the same. Further, he has sought for passing of an order by this Court in appointing him as Chemistry Lecturer.
2. The Resume of Facts:
(i) The 1st Respondent/Government of Tamil Nadu, Secretary, Education Department, Chennai through the 3rd Respondent/the Chairman, Teachers Recruitment Board, Chennai issued notification/advertisement dated 27.02.2012 (In Advertisement No.02/2012) for direct recruitment for the post of Lecturer (Engineering/Non-Engineering) for the Government Polytechnic Colleges under the 2nd Respondent/ the Directorate of Technical Education, Guindy, Chennai. The total vacancies for which the applications were called for were 139 out of which the vacancy for Chemistry was 28. In terms of the notification, the qualification for the post of Lecturer in Non-Engineering subjects (English, Mathematics, Physics, Chemistry) is First class Master's Degree in the appropriate Branch of study and not more than 57 years of age. As per the notification and the prospectus, the selection is based on a written test of 150 objective type questions of 190 maximum marks and certificate verification.
(ii) In view of the fact that he possessed a first class in M.Sc., Chemistry, he applied for the same under MBC category and was issued Hall Ticket (bearing Roll No.12PT13290135) for written examination to be held on 13.05.2012 between 10.00 a.m. and 1.00 p.m. at PAK Palanisamy Higher Secondary School, Old Washermenpet Near C.S.I. Rainy Hospital, Chennai-21. The results of the written examination was made available in the internet and he was placed eighth (in the State of Tamil Nadu) in Chemistry subject securing 138 marks out of 190 marks and was eagerly waiting for his result.
(iii) He was called for certificate verification through a call letter dated 09.07.2012 to be held at Presidency Girls Higher Secondary School, Egmore, Chennai on 22.07.2012. Further, he was directed to bring his all certificates. He was eagerly waiting for his results. However, through his shock and dismay, the 3rd Respondent/Chairman, Teachers Recruitment Board, Chennai through its website on 18.10.2012 released the provisional list of candidates selected for the post of Lecturers in Government Polytechnic Colleges 2010-2011, in which his name was not found. On verification, he was shocked to find out that, he was not selected because of the reason that he was not possessed of the requisite qualification.
(iv) It is relevant to state that this Court, in the order dated 28.01.2010, in W.A.No.1197 of 2009, had directed the Government to communicate the decision of the Government in regard to equivalence of 23 subjects of which M.Sc., Orgganic Chemistry is also one, as to whether M.Sc., Organic Chemistry is equivalent to M.Sc., Chemistry. The Government, after careful consideration of the Equivalence Committee, issued G.O.Ms.No.133, School Education (M2) Department dated 04.06.2012. In the said G.O. the Government has left open the equivalent of M.Sc., Organic Chemistry with that of Chemistry.
3. The stand of the petitioner is that the question of equivalence of M.Sc., Organic Chemistry with that of Chemistry as per the aforesaid G.O. having been left open by the Government, as such it cannot reject his appointment. Furthermore, there was a news item in Tamil Daily 'Dinamalar' dated 11.07.2012 that the 1st Respondent/Government of Tamil Nadu, Secretary, Education Department ordered the four specialization studies viz., 1.Organic Chemistry, 2.In-organic Chemistry, 3.Physical Chemistry and 4.Industrial Chemistry, in Chemistry at PG level are equivalent to M.Sc., Chemistry and this decision was made pursuant to the recommendation of the Equivalence Committee meeting that took place on 27.03.2012. It is to be pointed out that the said recommendation and the order of the 1st Respondent was much earlier to the certificate verification. In fact the 3rd Respondent/Chairman, Teachers Recruitment Board, Chennai in a mechanical and arbitrary fashion rejected his appointment.
4. The plea of the petitioner is that if the Equivalence Committee considering the equivalence of Organic Chemistry with that of Chemistry as per G.O.(Ms)No.133, School Education (M2) Department dated 04.06.2012 even not accepting and relying the news item dated 11.07.2010, the provisional list suffers from illegality and arbitrariness. His rightful place is being deprived of by the Respondents without placing the issue before the Equivalence Committee. Under these circumstances, the petitioner has filed the instant writ petition before this Court.
5. The Gist of Counter pleas of the Third Respondent:-
(i) The petitioner scored 138 marks in the written competitive examination in Chemistry and he was called for certificate verification on 22.07.2012, as he has secured the eligible cut off marks in the Most Backward Class Community Turn. His score after certificate verification was 138 marks only as he was not eligible to be awarded weightage marks. At the time of certificate verification, it was found that the petitioner had not possessed and produced equivalent G.O. to prove the M.Sc., Organic Chemistry as equivalent to M.Sc. Chemistry as per Clause 4 (C ) of the Notification dated 27.02.2012 and Clause 07 of the prospectus.
(ii) He was allowed to write the examination and called for certificate verification as per the particulars furnished by him in the OMR Application. He studied M.Sc. (Organic Chemistry) which is not equivalent to M.Sc. Chemistry and he failed to produce any equivalent G.O. to this effect issued prior to the date of notification or on or prior to the last date of submission of filled-in application, as such, he could not be considered for further selection. The Government in G.O.(Ms)No.133, School Education (M2) Department, dated 04.06.2012 had not accepted the recommendations of the Equivalence Committee to treat M.Sc., Organic Chemistry as equivalent to M.Sc., Chemistry. Therefore, the petitioner is not entitled to any benefit out of the aforesaid G.O.
(iii) The selection for recruitment for the post of Lecturer in Chemistry for the year 2012 has already come to an end. As such the petitioner is not entitled to be selected and appointed as a Lecturer in Chemistry even if the equivalent G.O. is issued after the completion of the recruitment for the year 2012. Indeed, the 'Equivalence Status' of such degrees will be considered pursuant to the issue of equivalent G.Os. Only for future selection and recruitment.
6. The petitioner's contentions:
(i) The Learned Counsel for the petitioner urges before this Court that the 3rd Respondent/Chairman, Teachers Recruitment Board, Chennai had committed an error in releasing the provisional list of candidates selected for appointment for the recruitment of Lecturers in Government Polytechnic Colleges for the year 2010-2011 for the post of Lecturer in Chemistry in its website on 18.10.2012.
(ii) It is the submission of the Learned Counsel for the petitioner that the 3rd Respondent in a mechanical fashion rejected the petitioner for the post of Lecturer in Government Polytechnic Colleges on the ground that he was not qualified.
(iii) Yet another contention of the Learned Counsel for the petitioner is that the Respondents failed to consider the fact that as per G.O.(Ms)No.133, School Education (M2) Department, dated 04.06.2012, the Government has left open the equivalence of Organic Chemistry to Chemistry and in as much as the Government had not considered the 'Equivalence' the same should be sent to the Equivalence Committee and thereafter, the provisional list ought to have been released. Lastly, it is the submission of the learned counsel for the petitioner that the 1st Respondent issued G.O.(Ms) No.72, Higher Education (K2) Department, dated 30.04.2013 wherein it is interalia stated that "in the resolution No.2 and 3 the equivalence committee has resolved to recommend as follows:-
Resolution No.2 Public Services Educational qualification Consideration of various Educational qualifications possessed by the candidates as equivalent to the qualification prescribed for the post of Teachers in the School Education Department S.No Subject 1 M.Sc., Bio Chemistry with M.Sc., Chemistry Not equivalent 2 B.Sc. Industrial Electronics to B.Sc., Physics Not equivalent 3 M.Sc., Bio-Physics to M.Sc., Physics Equivalent 4 M.Sc. Organic Chemistry Analytical Chemistry, Inorganic Chemistry, Polymer Chemistry, Physical Chemistry, Industrial Chemistry and 5 year integrated Chemistry to M.Sc. Chemistry Equivalent
(iv) That apart in the aforesaid G.O.(Ms) No.72, Higher Education (K2) Department dated 30.04.2013, in paragraph No.3 it is observed as under:
"3.The Government after careful consideration have decided to accept the recommendation of the Equivalence Committee after deleting the courses indicated in para 2 (i) to (v) above for the reasons stated therein. Accordingly the Government direct the following various educational qualifications possessed by the candidates as equivalent/not equivalent to the courses mentioned therein.
S.No. Name of the subject Equivalent/not equivalent 1 M.Sc., Bio Chemistry with M.Sc. Chemistry Not equivalent 2 B.Sc. Industrial Electronics to B.Sc., Physics Not equivalent 3 M.Sc., Bio-Physics to M.Sc., Physics Equivalent 4 M.Sc. Organic Chemistry Analytical Chemistry, Inorganic Chemistry, Polymer Chemistry, Physical Chemistry, Industrial Chemistry and 5 year integrated Chemistry to M.Sc. Chemistry Equivalent
7. From a mere running of the eye over the contents of the G.O.(Ms)No.72, Higher Education (K2) Department, dated 30.04.2013, it is quite clear that the Government, after careful consideration, have decided to accept the recommendations of the Equivalence Committee and also further directed the various educational qualifications possessed by the candidates mentioned therein as equivalent/not equivalent to the courses mentioned therein. In Para 3 of the aforesaid G.O.(Ms)No.72, Higher Education (K2) Department Dated 30.04.2013 in Serial No.4 the petitioner's M.Sc., Organic Chemistry is mentioned as equivalent to M.Sc., Chemistry. When that be the factual situation and also when the petitioner's M.Sc., Organic Chemistry is held to be an equivalent degree to that of M.Sc., Chemistry, then the petitioner is certainly eligible to be considered for selection to the appointment for the recruitment of Lecturers in Government Polytechnic Colleges for the year 20110-2011. At the risk of repetition, this Court points out that the petitioner stood eighth in the whole State in Chemistry subject scoring 138 marks out of 190 marks.
8. Also this Court points out that in M.P.No.4/12 in W.P.No.29213 of 2012 (filed by the petitioner) this Court has directed the 'Respondents to keep one post vacant till the disposal of the writ petition.'
9. At this juncture, this Court worth recollects and recall the decision in Chandrakala Trivedi Vs. State of Rjasthan, (2012) 3 SCC 129 whereby and whereunder it is observed as follows:
2.In the prospectus issued by the TRB, the eligibility to write TET was specified in Para 3, wherein it is stated that candidates must have passed Bachelor's Degree (B.A./BSc/B.Litt) with Tamil, English, Mathematics, Physics, Chemistry, Botany, Zoology, History and Geography or a degree with any one of the equivalent subjects from a recognized University under 10+2+3 pattern and a Degree in Teacher Education (B.Ed) from a recognised University.
3.In the present case, to the advantage of the petitioners, the State Government has issued G.O(1D)No.333, Higher Education Department, dated 27.11.2012, holding that B.A.Communicative English awarded by Madurai Kamaraj University is equivalent to B.A. English for the purpose of employment in public services. The petitioners also produced several other communications given by the University stating that the B.A. Communicative English is equivalent to B.A. English.
4.In this context, it must be noted that the Respondents in their prospectus did not advertise only for candidates having exact qualification, it also contemplated persons having an equivalent qualification. The Supreme Court has recognized the distinction between the equivalent and exact qualification vide judgment reported in (2012) 3 SCC 129(Chandrakala Trivedi Vs. State of Rajasthan). In paragraph Nos.8 and 9, it observed as follows:
"8. The word "equivalent" must be given a reasonable meaning. By using the expression "equivalent" one means that there are some degrees of flexibility of adjustment which do not lower the stated requirement. There has to be some difference between what is equivalent and what is exact. Apart from that, after a person is provisionally selected, a certain degree of reasonable expectation of the selection being continued also comes into existence.
9. Considering these aspects of the matter, we are of the view that the appellant should be considered reasonably and the provisional appointment which was given to her should not be cancelled. We order accordingly. However, we make it clear that we are passing this order taking in our view the special facts and circumstances of the case."
10. Further, in the decision of Hon'ble Supreme Court in Udai Singh Dagar Vs Union of India reported in (2007) 10 SCC 306 while considering almost a similar issue with regard to protecting the rights and privileges of diploma and certificate holders in Veterinary Science, it was held that not only a vested or accrued right but also inchoate right is protected. Strong reliance in this behalf has been placed on a decision in Court of Appeal in Chief Adjudication Officer vs. Maguire, reported in (1999) 2 All ER 859 (CA). It is relevant to extract paragraph 71 of the above said judgment:-
71. The expression unless a different intention appears contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right, whether inchoate or accrued or acquired right, can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. (See banisdhar vs. State of Rajasthan, reported in (1989) 2 SCC 557 and Thyssen Stahlunion GmbH vs. Steel Authority of India Ltd. reported in (1999) 9 SCC 334.
11. It is to be borne in mind that the Hon'ble Supreme Court in the decision B.S.Vadera Vs. Union of India reported in AIR 1969 SC 118 has held that " the law is well declared that an accrued and acquired right of a person cannot be taken away with retrospective effect".
12. This Court optly points out the Full Bench order dated 29.11.2013 of Madurai Bench of Madras High Court in W.P.(MD)Nos.16181, 16051, 16052, 15660 and 16780 of 2012 and 18793 of 2013 and Contempt Petition (MD)No.637 of 2013 between Nadar Thanga Shubha Laxman Vs. The State of Tamil Nadu, Represented by its Principal Secretary, Department of School Education, Chennai and another [where one of us (M.Venugopal, J.) was a party] wherein it is interalia held that "the equivalent certificate issued by the committee constituted by the Government declaring that the degree obtained from one University is equivalent to the degrees obtained from yet another university cannot be held to be only prospective in operation but will have it is effect and validity right from the date of issuance, therefore, with due respect to the Hon'ble Division Bench, the view taken in N.Geetha's case is incorrect."
13. It is well principle of law that a Court of Law cannot straight away issue direction to the executive authorities to appoint a person to a particular post. However, an individual has a right to be considered for promotion for appointment. The grant of promotion or appointment to a person/petitioner is within the domain of the Executive Authorities/Government as opined by this Court.
14. Added further, it is to be pointed out that where a case is made out that juniors have been promoted while the petitioner has been denied, the appropriate relief to be granted is not a direction to promote the petitioner but a direction to consider his case for promotion from the date of promotion of his juniors on the same criteria on which, the juniors were promoted, as per decision of Hon'ble Supreme Court in Life Insurance Corporation of India Vs Jagmohan Sharma reported in (1998) 9 Supreme Court Cases 219.
15. Also that in the decision of the Hon'ble Supreme Court in State of Mysore Vs. C.R.Seshadri and others reported in AIR 1974 Supreme Court 460, wherein it is observed as follows:
"The power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to Deputy Secretaryship. The latter part of the High Court's order is therefore set aside. AIR 1968 SC 1113 and AIR 1969 NSC 38 followed."
16. In the decision of Hon'ble Supreme Court AIR 1979 SC 1060 (The District Registrar, Palghat and others Vs. M.B.Koyyakutty and others) while considering the issue whether it was proper for the High Court to issue a positive direction requiring the authority to promote the employee concerned to the Upper Division Clerk and thereafter to determine his rank in the cadre of Upper Division Clerks, it was observed that the Court does not issue a direction in such positive terms. However, the Court proceeded to do so having regard to the peculiar features of the case, the employee satisfying statutory criteria etc.
17. In the decision of the Hon'ble Supreme Court in State of Madhya Pradesh Vs Srikant Chaphekar reported in (1992) 4 Supreme Court Cases 689, it is held as follows:
"The Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case, the Tribunal outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the Respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. In a case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law. It was not within the competence of the Tribunal, in the facts of the present case, to have ordered deemed promotion of the Respondent.
Further, this is not a fit case where even a direction to consider the Respondent for promotion from the year 1981 can be given. It would not be in the interest of justice to issue any such direction after a period of more than a decade."
18. In the decision of Hon'ble Supreme Court Union of India and others Vs. Bhagwan Singh, (1995) 6 SCCC 476, it is held as follows:
"In the instant case, the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted long ago. At the time the railway servant died there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, it must be held that the Central Administrative Tribunal acted illegaly and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable."
19. Furthermore, in the decision of Hon'ble Supreme Court in Gurdial Singh Fijji Vs. State of Punjab and others reported in AIR 1979 Supreme Court 1622, wherein it is observed that "the Court cannot direct that promotion should be granted to the person who claims before the Court that he should have been promoted. The proper course for a Court of law is to direct the authorities concerned that the case be considered afresh by the Selection Committee indicating the broad frame work within which the Committee should act and the principles which it should follow".
20. JT 2000 (Suppl. 2) SC 446 [Aryendra Nath Gupta Vs. Union of India & Others] wherein at page 447 in paragraph 3 it is observed and laid down as follows:-
"The grievance of the appellant before us is that his suspension having been revoked unconditionally, it could not be said that he was not entitled to promotion during the period he was actually under suspension and that aspect should have been examined by the concerned authority. In the circumstances, we find great force in the submission made on behalf of the appellant. Inasmuch as the order of suspension having been revoked unconditionally, his case for promotion as Surveyor or Works/Executive Engineer should have been considered for that period also. If the order of suspension had no effect upon his service, due promotion should be given to him by taking note of this fact. Hence we direct the Respondents to consider the case of the appellant as aforesaid in accordance with the Rules and make appropriate adjustments if necessary in the promoted cadre within a period of three months. The appeal is allowed accordingly."
21. As far as the present case is concerned, even though the petitioner had not produced any equivalent G.O. prior to the date of notification or on or prior to the last date of submission of filled-in application, yet the ground reality is that the 1st Respondent/Government in G.O.(MS)No.72, Higher Education (K2) Department dated 30.04.2013 has clearly recommended that the M.Sc. Organic Chemistry is equivalent to M.Sc. Chemistry and the same has also been accepted by the Government. Once the petitioner's qualification as M.Sc., Organic Chemistry is considered to be equivalent one as M.Sc., Chemistry, admittedly, at a latter point of time on 30.04.2013 vide G.O.Ms.No.72 Higher Education (K2) Department dated 30.04.2013, this Court is of the considered view that the validity of the degree obtained by the petitioner will take effect from the date of his acquisition of qualification and the certificate issued to that effect by the competent authorities.
22. Viewed in that perspective, this Court directs the Respondents to consider the case of the petitioner (subject to eligibility and suitability) for appointment to the post of Lecturer in Chemistry in Government Polytechnic Colleges for the year 2010-2011 by taking into account of his Post-Graduate qualification of M.Sc., Organic Chemistry (declared equivalent to M.Sc., Chemistry in terms of G.O.(MS)No.72, Higher Education (K2) Department dated 30.04.2013) in a Fair, Just and dispassionate manner and to pass a reasoned speaking order on merits within a period of eight weeks from the date of receipt of a copy of this order. Further, this Court directs the Respondents to place the petitioner at the appropriate place (in seniority) in the manner known to law and in accordance with law.
23. With the aforesaid directions, the Writ Petition stands disposed of. Consequently, connected miscellaneous petition is closed. No costs.
22.01.2014
Index : Yes/No
Internet : Yes/No
Note: Issue order copy on 27.01.2014
vsm
To
1.The Secretary,
Government of Tamil Nadu
Education Department,
Fort St. George, Chennai.
2.The Directorate of Technical Education,
Guindy,
Chennai 600 026.
3.The Chairman,
Teachers Recruitment Board,
4th Floor, EVK Sampath Maaligai,
DPI Compound,
College Road,
Chennai 600 006.
M.VENUGOPAL, J.
vsm
W.P.No.29213 of 2012
22.01.2014