Madras High Court
T. Sudarmani vs Kirubakaran on 17 May, 2024
Author: R. Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 17.05.2024
CORAM:
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
and
C.M.P. Nos.27509, 28299, 28301, 26499, 27802, 27803, 28224, 28226 of 2023
5405 and 5402 of 2024
W.A. No.3366 of 2023:
1 T. Sudarmani
2 K. Neelambal
3 S. Mahendiran Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
https://www.mhc.tn.gov.in/judis
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3460 of 2023:
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
1 M. Srinevasan
2 S. Manju
3 K. Revathi
4 M. Mohanraj
5 S. Athirasu
6 G. Arumgam
7 Abel John Edward D.
8 M. Prabakaran
9 V. Rajesh
10 S. Sathya
11 S. Sankar Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3247 of 2023:
1 T.S. Sathiyaseelan
2 C. Ragu
3 M. Chitra
4 A. Anbu
5 M. Periyasamy
6 R. Jeya
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
7 V. Kirubakaran
8 C. Selvam
9 M. Dhasarathan
10 K. Baskaran
11 J. Valli
12 M. Murugesan
13 K. Senthil Murugan
14 A. Vasagan
15 J. Revathi
16 P. Arulmozhi Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006 Respondents
W.A. No.3399 of 2023:
K. Sankar Appellant
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chithra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M.Dhasarathan
13 K. Baskaran
14 J. Valli
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3449 of 2023:
1 A. Ramakrishnan
2 Z. Leo Paulraj
3 A. Rajarathinam
4 V. Rajendran
5 M.S. Mani
6 D.K. Jayaraman
7 S. Sakthivel
8 C. Sathya
9 S. Shahul Hameed Badusha
10 K. Madhammal Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.799 of 2024:
G. Mariappan Appellant
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chithra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
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W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
Writ Appeals filed under Clause 15 of the Letters Patent challenging the
order dated 15.11.2023 passed in W.P. No.32386 of 2023.
For appellant Mrs. Kavitha Nithyanandan
in all WAs
For RR 1 & 2 Mr. J.Ravindran, AAG assisted by
in all WAs Mr.U.M. Ravichandran
Special Government Pleader
For R3 Mr. R. Neelakandan, AAG assisted by
in all WAs Mr. C. Kathiravan
Special Government Pleader
-----
COMMON JUDGMENT
https://www.mhc.tn.gov.in/judis 10/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 R. MAHADEVAN, J.
Since all these writ appeals emanate from one particular order, viz., order dated 15.11.2023 passed by a learned Judge in W.P. No.32386 of 2023, they are considered and decided by this common judgment.
2 At the threshold, it is worth mentioning that except the writ appeal in W.A. No.3247 of 2023, which is filed by the unsuccessful writ petitioners, the remaining writ appeals have been filed by third parties to the writ petition.
3 Shorn off minute details, the facts which are germane for deciding these cases are set out infra:
3.1 The Teachers Recruitment Board issued a notification dated 25.10.2023 inviting applications for direct recruitment to the post of Graduate Teachers/Block Resource Teacher Educators (BRTE) in School Education and other departments included in the Special Rules for the Tamil Nadu School Educational Subordinate Service for the year 2023-2024. One of the qualifications prescribed for the said post in the notification was that the candidates should have graduation with at least 45% marks and B.Ed. degree in accordance with the NCTE (Recognition Norms and Procedure) Regulations https://www.mhc.tn.gov.in/judis 11/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 issued from time to time in this regard.
3.2 While so, the appellants in W.A. No.3247 of 2023, who have qualified Teachers Eligibility Test (TET) on various dates, but scored less than 45% in their graduation, filed a writ petition being W.P. No.32386 of 2023 seeking a writ of declaration that they are eligible to apply and to be appointed as Graduate Teachers/Block Resource Teacher Educator (BRTE), pursuant to the notification dated 25.10.2023 issued by the Teachers Recruitment Board.
3.3 Before the learned Judge, the sole ground that was urged was that the appellants in W.A. No.3247 of 2023 having been allowed to partake in the TET, it cannot be stipulated that they should have secured a minimum of 45% in their graduation.
3.4 The above ground did not cut ice with the learned Judge.
Observing that the Teachers Recruitment Board is at liberty to stipulate its own conditions as essential qualification for filling up of vacancies and unless such conditions are in contravention of its regulations or arbitrary, the Court cannot interfere with the stipulation of such qualification, the learned Judge dismissed the writ petition.
https://www.mhc.tn.gov.in/judis 12/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 4 Thereagainst, the writ petitioners, on the one hand, and some third parties to the lis, on the other, have preferred these writ appeals as stated in paragraph 2, supra.
5 Heard Ms. Kavitha Nithyanandan, learned counsel for the appellants, who would draw the attention of this Court to the fact that though the NCTE had stipulated the minimum qualifications required for the post of Graduate Teacher/BT Assistant as early as on 23.08.2010 and 29.07.2011, the State Government had consciously relaxed the qualifying marks by 5% applying the rule of reservation. This is evident from the fact that the minimum qualifying marks have been stated to be 50% for general, 45 % for BC, 43% for MBC and 40 % for SC/ST for admission to B.Ed. course and the pass marks in graduation is 40%. She further submits that under Proviso to Para 3 of the NCTE Notification dated 29.07.2011, the State is permitted to relax the qualifying marks by 5% for appointment as teachers. She would contend that once the power of relaxation by 5% in qualifying marks is available to the State and when the State has exercised the same by permitting those candidates who secured less than 45% marks in Graduation to appear for TET, it would be against the principles of promissory estoppel and legitimate expectation to now https://www.mhc.tn.gov.in/judis 13/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 deny them the chance to apply for the post of BT Assistant by citing the NCTE notifications after having relaxed the qualifying marks.
6 Continuing further, the learned counsel for the appellants would contend that after making themselves eligible for appearing for TET and after passing the said test, which is one of the qualifications for applying to the post in question, the Teachers Recruitment Board prescribing a further condition that the candidates should possess not less than 45% marks in their graduation is illegal, more so, when even according to the Government, 40% in graduation is considered as pass. In other words, according to the learned counsel, when the appellants have passed graduation followed by TET, by the notification stipulating that minimum of 45% is required in graduation, the chance of the appellants for getting public employment is taken away, which is illegal.
7 On the other hand, the learned Additional Advocate General, inter alia, contended that when the notification dated 25.10.2023 has come to be issued only as per the provisions of the Right of Children to Free and Compulsory Education Act, the Right to Education Act and the Government Orders and NCTE notifications issued from time to time, the policy of the Government keeping in mind the educational standard, cannot be interfered with https://www.mhc.tn.gov.in/judis 14/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 by the Court, when even according to the appellants, is not vitiated by mala fides.
8 The learned Special Government Pleader, based on the counter affidavit filed by the first respondent, reiterated the submissions made by the learned Additional Advocate General, besides submitting that prescribing minimum requirement of marks in graduation for applying B.Ed. and prescribing minimum requirement of marks in graduation for appointment to the post of B.T. Assistant, cannot be equated. Placing reliance on the judgment of the Supreme Court in Ram Kumar Patel & others v State of U.P. and others [(2018) 13 SCC 175], he submitted that the notification in question stipulating the candidates to have secured 45% in the graduation cannot be said to be faulty.
9 Heard the learned counsel for the appellants and the learned Additional Advocate General and the learned Special Government Pleader appearing for the official respondents and also perused the materials placed before this court.
10 The appellants have completed their graduation, B.Ed. and passed the Teacher Eligibility Test as early as in 2013 and have been waiting for employment as Government School teachers. Their grievance is that while the https://www.mhc.tn.gov.in/judis 15/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 State Government permitted them to write TET exam in 2013 (and followed the same yardstick in 2017) by stating that anyone with a pass in Graduation (40%), and B.Ed. could appear for TET, they have now stated in their recruitment notification dated 25.10.2023 that only those with Graduation with atleast 45% marks with B.Ed. can apply of the post of BT Assistant.
11 It is a matter of fact that the NCTE had stipulated the minimum qualifications required for the post of Graduate Teacher/BT Assistant as early as on 23.08.2010, and 29.07.2011. Under Proviso to Para 3 of the NCTE Notification dated 29.07.2011, the State is permitted to relax the qualifying marks by 5% for appointment as teachers. In the State of Tamil Nadu, it is seen that the State has consciously relaxed the qualifying marks by 5% applying the rule of reservation. A perusal of the records show that the minimum qualifying marks have been stated to be 50% for general, 45 % for BC, 43% for MBC and 40 % for SC/ST for admission to B.Ed. course and the pass marks in graduation is 40%.
12 We find merit in the contention raised on the side of the appellants that once the power of relaxation by 5% in qualifying marks is available to the State and when the State has exercised the same by permitting those candidates https://www.mhc.tn.gov.in/judis 16/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 who secured less than 45% marks in Graduation to appear for TET, it would not be open to the State Government to now deny them the chance to apply for the post of BT Assistant by increasing the qualifying marks by citing the NCTE notifications, which itself permits such relaxation. Such denial would be shutting the doors of employment to these appellants, who have been waiting for employment as teachers having qualified for the specific test- Teachers Eligibility Test. Such action of the State Government would fly in the face of their own conscious act of relaxing the qualifying marks, which would attract the rigour of arbitrariness as well as be against the legitimate expectation of the appellants. The doctrine of legitimate expectation is an off-shoot of the concept of non-arbitrariness and fairness in administrative action of the State. The legitimate expectation of the appellants must be based on past established practice and must yield to the public good and public policy. The law on the doctrine of legitimate expectation has been exhaustively elucidated by the Supreme Court in the case of Sivanandan CT and Others v. High Court of Kerala and Others [(2024) 3 SCC 799] and the same is extracted hereunder:
"(ii) Legitimate expectation
17. Another important aspect that arises for our consideration in these batch of petitions is whether the High Court's decision frustrates the legitimate expectation of the petitioners.
Article 233 of the Constitution provides that the appointment of https://www.mhc.tn.gov.in/judis 17/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 persons to be posted as District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. Further, Article 235 vests with the High Court the control over District Courts including the posting and promotion of District Judges. The maintenance of efficiency of judicial administration is entirely within the control and jurisdiction of the High Court. [State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640 : 2000 SCC (L&S) 489.] The Governor, in consultation with the High Court, prescribes rules laying down the method of appointment and the necessary eligibility criteria for the selection of suitable candidates for the post of District Judges. According to the 1961 Rules, the High Court of Kerala was designated as the appointing authority and tasked with the responsibility of conducting the written examination and the viva voce. The actions of the High Court, in pursuance of its public duty, would give rise to the legitimate expectation that the process of selection of candidates will be fair and non-arbitrary.
(a) Doctrine of legitimate expectation under common law
18. The basis of the doctrine of legitimate expectation in public law is founded on the principles of fairness and non- arbitrariness in Government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. The doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure. [Salemi v. MacKeller (No. 2), 1977 HCA 26 :
(1977) 137 CLR 396]
19. The origin of the doctrine in the modern sense could be authoritatively traced to the opinion of Lord Denning in Schmidt v. Secy. of State for Home Affairs [Schmidt v. Secy. of State for Home Affairs, (1969) 2 Ch 149 : (1969) 2 WLR 337 (CA)] . In that case, the Home Secretary granted a limited permit to the petitioners to enter the United Kingdom for the purposes of study at the College of Scientology. After the expiration of the time period, the petitioners applied to the Home Secretary for an extension of their permits. The Home Secretary refused to grant the extension. Although the Court rejected the claim brought by the petitioners, Lord Denning observed that the petitioner would have a legitimate expectation of being allowed to stay for the permitted time. In such situation, it was https://www.mhc.tn.gov.in/judis 18/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 observed that the petitioner ought to have been given an opportunity of making a representation if his permit was revoked before the expiration of the time period. Lord Denning's conception of the doctrine of legitimate expectation was a procedural protection — a legitimate expectation could not be denied without providing an opportunity of hearing to the affected person.
20. In O'Reilly v. Mackman [O'Reilly v. Mackman, (1983) 2 AC 237 : (1982) 3 WLR 1096 (HL)] , the House of Lords was called upon to decide the validity of the order passed by the Board of Visitors to impose a penalty against the plaintiffs in breach of the prison rules and principles of natural justice. Lord Diplock observed that the doctrine of legitimate expectation gave the affected party a right to challenge the legality of the adverse actions on the ground that the authority had acted beyond the powers conferred upon it by the legislation including the failure to observe the principles of natural justice. Lord Diplock reiterated the doctrine of legitimate expectation in terms of the duty of public authorities to act fairly in their dealings with individuals.
21. The doctrine of legitimate expectation received further impetus in the decision of the Privy Council in Attorney-General of Hong Kong v. Ng Yuen Shiu [Attorney-General of Hong Kong v. Ng Yuen Shiu, (1983) 2 AC 629 : (1983) 2 WLR 735 (PC)] . In that case, a senior immigration officer announced that each illegal entrant from China would be interviewed before passing deportation orders against them. The respondent, an illegal entrant from China, was detained and removal orders were passed against him without any opportunity of hearing. Therefore, the issue was whether the respondent had a legitimate expectation of the grant of a hearing before repatriation by the immigration officer. It was held that a public authority is bound by its undertakings. Lord Fraser explained the contours of legitimate expectations in the following terms : (AC p. 637) “The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.” According to Lord Fraser's opinion, the primary justification for the https://www.mhc.tn.gov.in/judis 19/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 doctrine of legitimate expectation is that a public authority should implement its promise in the interests of fairness and good administration.
22. The doctrine of legitimate expectation was crystallised in common law jurisprudence by Lord Diplock in the locus classicus, Council of Civil Service Unions v. Minister for the Civil Service [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 (HL)] . Lord Diplock held that courts can exercise the power of judicial review of administrative decisions in situations where such decision deprives a person of some benefit or advantage which:
22.1. They had in the past been permitted by the decision-
maker to enjoy and which they can legitimately expect to be permitted to continue until there has been communicated to them some rational grounds for withdrawing it on which they have been given an opportunity to comment; or 22.2. They have received assurance from the decision-maker that the advantage or benefit will not be withdrawn without giving them an opportunity of advancing reasons for contending that the advantage or benefit should not be withdrawn.
23. The doctrine of legitimate expectation emerged as a common law doctrine to guarantee procedural fairness and propriety in administrative actions. Legitimate expectation was developed by the courts to require a degree of procedural fairness by public authorities in their dealings with individuals. Denial of an assured benefit or advantage was accepted as a ground to challenge the decision of a public authority.
(b) Doctrine of legitimate expectation under Indian law
24. By the 1990s, the Indian courts incorporated the doctrine of legitimate expectation in the context of procedural fairness and non-arbitrariness under Article 14 of the Constitution. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [Food Corpn. of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71] , this Court held that public authorities have a duty to use their powers for the purposes of public good. This duty raises a legitimate expectation on the part of the citizens to be treated in a fair and non- arbitrary manner in their interactions with the State and its https://www.mhc.tn.gov.in/judis 20/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 instrumentalities. This Court held that a decision taken by an executive authority without considering the legitimate expectation of an affected person may amount to an abuse of power : (SCC p. 76, para 7) “7. … To satisfy this requirement of non-
arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.” The Court held that whether the expectation of a claimant is legitimate or not is a question of fact which has to be decided after weighing the claimant's expectation against the larger public interest. Thus, while dealing with the claims of legitimate expectations, the court has to necessarily balance the legitimate expectation of a claimant against the larger public interest.
25. In Union of India v. Hindustan Development Corpn. [Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499] this Court clarified the contours of the doctrine of legitimate expectation in the following terms:
(i) legitimate expectation arises based on a representation or past conduct of a public authority;
(ii) legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular or natural sequence;
(iii) legitimate expectation provides locus standi to a claimant for judicial review;
(iv) the doctrine is mostly confined to a right of a fair hearing before a decision and does not give scope to claim relief straightaway;
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(v) the public authority should justify the denial of a person's legitimate expectation by resorting to overriding public interest; and
(vi) the courts cannot interfere with the decision of an authority taken by way of policy or public interest unless such decision amounts to an abuse of power.
26. In Hindustan Development Corpn. [Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499] , this Court cautioned against the use of the doctrine of legitimate expectation to safeguard a substantive right. Yet, in a series of subsequent decisions, this Court accepted that the doctrine of legitimate expectations has become a source of both procedural and substantive rights. [M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592; National Buildings Construction Corpn. v. S. Raghunathan, (1998) 7 SCC 66 : 1998 SCC (L&S) 1770.] In Punjab Communications Ltd. v. Union of India [Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727] , this Court explained the difference between procedural and substantive legitimate expectation in the following terms : (Punjab Communications case [Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727] , SCC p. 742, para 27) “27. … The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced.” (emphasis in original)
27. A claim based on the doctrine of procedural legitimate expectation arises where a claimant expects the public authority to follow a particular procedure before taking a decision. This is in contradistinction to the doctrine of substantive legitimate expectation where a claimant expects conferral of a substantive benefit based on the existing promise or practice of the public authority. The doctrine of substantive legitimate expectation has now been accepted as an integral part of both the common law as well as Indian jurisprudence.
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(c) Substantive legitimate expectation
28. In R. v. North and East Devon Health Authority, ex p Coughlan [R. v. North and East Devon Health Authority, ex p Coughlan, 2001 QB 213 : (2000) 2 WLR 622 (CA)] , the Court of Appeal laid down the test of abuse of power to determine whether a public authority can resile from a prima facie legitimate expectation. It was held that frustration of a substantive legitimate expectation by public authorities would be unfair and amount to abuse of power. Importantly, it was held that abuse of power constitutes a ground for the courts to exercise judicial review of executive actions.
29. In R. (Nadarajah) v. Secy. of State for the Home Deptt. [R. (Nadarajah) v. Secy. of State for the Home Deptt., 2005 EWCA Civ 1363] the Court of Appeal added another facet to the doctrine of substantive legitimate expectation by grounding it in the principles of good administration. Importantly, the Court identified that consistency and probity are tenets of a good administration. Laws, L.J. explained the principles underlying the doctrine of legitimate expectation in the following terms:
“68. The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.” (emphasis supplied) Moreover, Laws, L.J. held that a public authority can resile from its promise or future conduct if its decision : (i) is in pursuance of a legal duty; or (ii) is a proportionate response having regard to the legitimate aim pursued by the public body in the public interest.
https://www.mhc.tn.gov.in/judis 23/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
30. The decision of the Court of Appeal in Coughlan [R. v. North and East Devon Health Authority, ex p Coughlan, 2001 QB 213 : (2000) 2 WLR 622 (CA)] marked a gradual shift in the formulation of the doctrine of legitimate expectation in the common law. In Schmidt [Schmidt v. Secy. of State for Home Affairs, (1969) 2 Ch 149 : (1969) 2 WLR 337 (CA)] and Council of Civil Service Unions [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 (HL)] , the application of the doctrine was justified on the grounds of fairness in decision- making by public authorities. However, the gradual shift towards a more nuanced aspect of the doctrine began when the English courts started requiring public authorities to honour their promises or practices as a requirement of good administration. Good administration was characterised by consistent, regular, and straightforward conduct on behalf of the public authorities. Further, the concept of unfairness in decision-making as an abuse of power was firmly established by the Court in Coughlan [R. v. North and East Devon Health Authority, ex p Coughlan, 2001 QB 213 : (2000) 2 WLR 622 (CA)] . Thus, the requirement of good administration and preventing an abuse of power came to underpin the administrative actions of public authorities. [R. v. Secy. of State for Education & Employment, ex p Begbie, (2000) 1 WLR 1115 (CA)]
31. The above developments in the common law also had an influence on the Indian law. In Ram Pravesh Singh v. State of Bihar [Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 :
2006 SCC (L&S) 1986] , this Court explained the concept of legitimate expectation as a reasonable, logical, and valid expectation of certain benefit, relief, or remedy : (SCC pp. 390-91, para 15) “15. What is legitimate expectation?
Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term “established practice” refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation.” (emphasis supplied) https://www.mhc.tn.gov.in/judis 24/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
32. In Ram Pravesh Singh [Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 : 2006 SCC (L&S) 1986] , this Court noted that the efficacy of the doctrine of legitimate expectation is weak as the claimant is only entitled to the following two reliefs : (i) an opportunity to show cause before the expectation is negatived; and
(ii) an explanation as to the cause for denial. The Court further clarified that a claim based on legitimate expectation can be negatived on factors such as public interest, change in policy, conduct of the claimant, or any other valid or bona fide reason provided by the public authority.
33. While dealing with the doctrine of legitimate expectation, another important aspect that the courts have had to grapple with is determining the “legitimacy” of the expectation. The court can infer the legitimacy of an expectation only if it is founded on the sanction of law. [Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625] In State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] a Constitution Bench of this Court held that a contractual or casual employee cannot claim a legitimate expectation to be regularised in service since such appointments could only be made after following proper procedures for selection including consultation with the Public Service Commission in certain situations. The legitimacy of expectation is a question of fact and has to be determined after weighing the claimant's expectation against the larger public interest.
34. This Court has consistently held that a legitimate expectation must always yield to the larger public interest. In Sethi Auto Service Station v. DDA [Sethi Auto Service Station v. DDA, (2009) 1 SCC 180] , this Court clarified that legitimate expectation will not be applicable where the decision of the public authority is based on a public policy or is in the public interest, unless the action amounts to an abuse of power. The doctrine of legitimate expectation cannot be invoked to fetter valid exercise of administrative discretion. [Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1] In P. Suseela v. UGC [P. Suseela v. UGC, (2015) 8 SCC 129: (2015) 2 SCC (L&S) 633], the claimants challenged the UGC Regulations which made it mandatory for candidates seeking to be appointed to the post of Lecturer or Assistant Professor to qualify at the NET examination. The Court held that the legitimate expectation of the claimants must yield to the larger public interest — having https://www.mhc.tn.gov.in/judis 25/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 highly qualified Assistant Professors and Lecturers to teach in educational institutions governed by the UGC.” 13 In the present case, having allowed those, who possessed less than 45% marks in Graduation to write TET, they cannot now be denied the chance to be considered for the post of BT Assistant by stipulating a minimum of 45 % in Graduation. The expectation of the appellants is certainly founded in law as the past practice adopted had its source in the power given to the State to relax the qualifying marks by 5%. Further, there is no change in the policy or the Regulations applicable, meaning thereby that there is no overbearing public interest which justifies the taking away of the rights of the appellants to apply for and be considered for the post of teachers, especially when they have qualified themselves for B.Ed. as well as TET on the express promise made by the State on their eligibility to be admitted to B.Ed. as well as to participate in TET, both of which are essential eligibility criteria for being appointed as a Graduate teacher/ B.T. Assistant. Thus, this is a classic case attracting the doctrine of legitimate expectation in favour of the appellants. During the pendency of these appeals, this Court finding a prima facie case in favour of the appellants, had passed interim orders permitting the appellants to apply for the post of Graduate Teachers/Block Resource Teacher Educator(BRTE) pursuant to the notification dated 25.10.2023. The appellants have appeared for the https://www.mhc.tn.gov.in/judis 26/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 competitive examinations pursuant to the interim orders.
14 In this regard, reference is also made to the judgment of the Supreme Court in Vikas Sankhala v. Vikas Kumar Agarwal [(2017) 1 SCC 350] wherein the Suprme Court observed as follows:
“29. While reiterating the mandate of a pass in TET to be a norm of eligibility, rationale therefore was enumerated as under:
(i) it would bring national standards and benchmark of teacher quality in the recruitment process;
(ii) it would induce teacher education institutions and students from these institutions to further improve their performance standards;
(iii) it would send a positive signal to all stakeholders that the Government lays special emphasis on teacher quality.
30. Conspicuously, thus, the essence of TET was to infuse a qualitative content in the recruitment process and thus, set a national benchmark for the sake of uniformity in the level of elementary education in the country. It prescribed 60% or more marks in TET as pass marks with liberty granted to the Governments to give concessions to persons belonging to SC/ST, OBC, differently- abled persons, etc. in accordance with extant reservation policy.
31. The High Court, then, pointed out that none of the parties had challenged the competence of NCTE either to issue Guidelines dated 11-2-2011 to conduct TET or to vest a discretion in the State Government to grant relaxation as contemplated therein i.e. in accordance with the “extant” reservation policy. The High Court, thereafter, discussed the Letter dated 23-3-2011 issued by the State Government giving concession to the extent of 10%/15%/20% to different reserved categories but without disclosing any reference to the extant reservation policy of the Government. The High Court ultimately found, as already pointed out above, that the State Government could not deduce any such reservation policy and, thus, held that in the absence of such a policy, the State Government could not have granted the concession, as was done vide Letter dated 23-3-2011.
https://www.mhc.tn.gov.in/judis 27/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
32. Coming to the Notification dated 29-7-2011 which was issued by NCTE in exercise of its power under Section 23(1) of the RTE Act, amending its earlier Notification dated 23-8-2010, the High Court proceeded to discuss as to whether relaxation up to 5% in qualifying marks contained therein was relatable to TET. This question had arisen for consideration because of the reason that the writ petitioners belonging to general category had argued that vide the said Notification dated 29-7-2011, Para 3 of the principal Notification dated 23-8-2010 was substituted and the context of the said Para 3 was totally different. After juxtaposing unamended Para 3 and amended Para 3, the High Court pointed out that Para 3 of the Notification dated 23-8-2010 dealt exclusively with the aspect of NCTE recognised six months' special programme in elementary education by way of training of persons with qualifications mentioned therein after appointment. Thus, there was neither any comprehension nor any provision for reservation or relaxation of marks. Only academic qualifications with minimum percentage of marks was referred to. Therefore, concession of 5% in the qualifying marks pertained to the percentage of marks in the qualifying examination of Senior Secondary/graduation, etc. and had no nexus with the pass marks in TET.
33. The High Court further pointed out that in terms of Letter dated 23-3-2011 issued by the State Government (which was passed on NCTE Notification dated 29-3-2011 for giving relaxation qua academic qualifications) reserved category candidates availed second relaxation qua their academic qualifications. In this manner, they stood doubly advantaged and the impact of such relaxation had bearing on ultimate assessment on merit.” 15 In the light of the above findings, the order under challenge is set aside and these writ appeals are allowed with a direction to the respondents to consider the case of appellants for appointment to the post of Graduate Teachers/B.T. Assistants if they are otherwise eligible. No costs. Connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis 28/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 [R.M.D, J.] [M.S.Q, J.] cad 17.05.2024 To 1 The Principal Secretary to Government School Education Department Government of Tamil Nadu Fort St. George, Chennai 600 009 2 The Director of School Education Directorate of School Education DPI Campus College Road Chennai 600 006 3 The Teachers Recruitment Board (TRB) IV Floor DPI Campus College Road Chennai 600 006 https://www.mhc.tn.gov.in/judis 29/30 W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 R. MAHADEVAN, J.
and MOHAMMED SHAFFIQ, J.
cad/rk Pre-delivery common order in W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024 17.05.2024 https://www.mhc.tn.gov.in/judis 30/30