Madras High Court
M.Pushpa vs The Director Of School Education on 28 April, 2022
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, Mohammed Shaffiq
W.A.No.40 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.03.2022
Pronounced on : 28.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. No.40 of 2021
and
C.M.P. No.466 of 2021
M.Pushpa ...Appellant
Vs.
1.The Director of School Education,
DPI Campus, Chennai-600 006.
2.The Joint Director of School Education (Personnel),
DPI Complex, Chennai-600 006.
3.The Chief Educational Officer,
Kancheepuram District, Kancheepuram. ... Respondents
Prayer:Writ appeal filed under clause 15 of the Letter Patent praying to set
aside the order dated 11.04.2019 in W.P.No.32575 of 2018.
For Appellant : Mr.G.Sankaran
For Respondents : Mrs.S.Mythreya Chandru
Special Govt. Pleader (Education)
1/22
https://www.mhc.tn.gov.in/judis
W.A.No.40 of 2021
JUDGMENT
S.VAIDYANATHAN, J.
and MOHAMMED SHAFFIQ, J.
Following questions arise for consideration in this writ appeal viz., a. Whether the study pattern of 10+2+3 as provided in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009 is a mandatory qualification for appointment as B.T. Assistant.
b. Whether G.O.M.S.No.107 is contrary to University Grant Commission regulation insofar as it mandates 10+2+3 pattern as criteria for qualification for appointment to the post of B.T.Assistant.
c. Whether G.O.M.S.No. 107 is in conflict with the Tamil Nadu State and Subordinate Service Rules insofar as it mandates 10+2+3 pattern as a qualification for appointment to the post of B.T. Assistant d. Whether amendment to Tamil Nadu State and Subordinate service Rules vide G.O.M.S.No.65 dated 02.07.2014 insofar as it made with retrospective effect from 18.08.2009 is illegal. 2/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021
2. Admitted Facts:-
a. The appellant had obtained/passed S.S.L.C. Examination in the year 1991.
b. Thereafter, she obtained B.Sc., (Maths) degree in October 2004 before passing Higher Secondary Examination (HSC) which she completed in September 2010 .
c. The appellant's educational qualification instead of being 10+2+3+1 is 10+3+1+2.
3. We shall now proceed to examine the questions in seriation:-
a. The first question is no longer res-integra. The above question has been decided by this Hon'ble Court on more than one occasion holding that the study pattern of 10+2+3 is mandatory and G.O.Ms.No.107 is valid. However, before reference is made to those decisions, it may be relevant to extract G.O.Ms.No.107 Personnel and Administrative Reforms(M) Department, dated 18.08.2009, which reads as under:-
"In the Government Order, first read above, orders have been issued granting approval for employment in Public 3/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 Services considering the degrees conferred by Open Universities in Tamil Nadu recognized by the University Grants Commission, in respect of Diploma course, Under- Graduate course and Post-Graduate course as equivalent to that of the Diploma course, Under- Graduate course and Post- Graduate course given by the said universities through Regular stream.
2. The Chief General Manager, BSNL Tamil Nadu Circle, in the letter second read above, has requested for clarification as to whether the persons who have obtained a degree in B.Sc., B.A., etc., through Open Universities without a pass in higher secondary examination (+2) shall be considered as having passed the higher secondary examination, for the post for which the minimum educational qualification is fixed as a pass in Higher Secondary Education and can be considered for the promotion posts in government departments.
3. The Secretary, Tamil Nadu Public Service Commission was requested to forward the recommendation made by Equivalence Committee on the aforesaid proposal. The Equivalence Committee recommended that the persons who have obtained B.Sc., B.A. degree in Open Universities without having passed the higher secondary school examination, cannot be considered either for employment or 4/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 promotion in government service by considering them to have passed the +2 examinations of the State Government. Even when the said proposal was sent again for the recommendation of the Equivalence Committee, it insisted on the decision already taken.
4. The Government carefully examined this recommendation and having decided to accept the reecommendation of the Equivalence Committee issues an order recognizing the degrees in Diploma/Degree/Post- Graduate degree obtained through Open Universities only after having passed secondary school examination (10th Std.) and higher secondary school examination on (+2) alone for appointment/promotion in Public Services."
( Emphasis Supplied)
4. The validity of G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department dated 18.08.2009 was considered in the case of T.L.Muthukumar and others Vs. The Registrar General , High Court of Madras in W.P.No.18729 of 2010. The appellant therein challenged the denial of promotion on the basis of G.O.Ms.No.107 dated 18.08.2009 which inter alia provided that degrees issued by Open Universities shall be 5/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 recognised and accepted for appointment and promotion, provided the said degree has been obtained after completing +2/ Higher Secondary Examination. The petitioner in the said writ petition had obtained B.A./B.B.A. Degree through correspondence course but had not completed +2/ Higher Secondary Examination. Against that background, the validity of G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department dated 18.08.2009, was challenged. The Government Order was held to be valid and that 10+2+3 was mandatory. The above Judgment was subsequently followed in the following Judgments, wherein this Hon'ble Court has consistently held that the pattern of education viz., 10+2+3 provided in G.O.Ms.No.107 is mandatory and failure to comply will result in disqualification. The relevant portions of which are extracted hereunder:
i) The Chairman, Teachers Recruitment Board Vs. V. Kanimozhi, reported in (2014) 8 MLJ 344, the relevant portion is extracted hereunder:
“5.3. Even otherwise, the binding nature of the said Government Order is not in dispute. The respondent has not challenged the said Government Order. As the appellants are the competent authorities to fix the qualification, that too, 6/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 pertaining to the teachers of Higher Secondary schools, there is no difficulty in coming to the conclusion that the conditions prescribed are mandatory. In other words, unless and until a candidate satisfy the requirement as envisaged in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009, he or she cannot be considered for the post.
5.4. In the case on hand, admittedly, at the time of completing the degree, the respondent did not complete the plus 2 course. That is exactly the reason why she thereafter completed the plus 2 course. This fact has also been observed by the learned single Judge. While it is absolutely open to the respondent to do the same, the question for consideration is, as to whether the said action would cure the defect. In our respectful submission, the said attempt cannot be substitute to the Government Order passed in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. Any other interpretation would amount to re~writing the provisions of the said Government Order, which is impermissible in law, without there being a challenge."
(emphasis supplied) 7/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021
ii) The Chairman, Teachers Recruitment Board vs. A.Valarmathi and others in W.A.Nos.1496 to 1498 of 2015 dated 21.08.2018, the relevant portion of the judgment reads as under:
“20. From the qualifications extracted above it could be seen that none of the respondents have satisfied the requirement of the educational qualifications prescribed under the advertisement dated 22.05.2013. The advertisement very clearly states that the respondents should have obtained a bachelor-s degree from a recognized University under 10+2+3 pattern along with a bachelor-s degree in Education. While the respondent in W.A. No. 1498 of 2015 has not even attempted to complete Higher secondary the respondents in W.A. Nos. 1496, 1497 of 2015 have completed higher secondary course after having obtained their bachelor-s degree.
21. Such a reverse qualification has been held to be invalid in R. Tirunavukkarasu case as well as in Kanimozhi case cited supra. We are in agreement with the views of the Division Bench as well as the learned Single Judge in R. Tirunavukkarasu case. We must also point out that the learned Single Judge in the orders impugned in these appeals had only followed the judgment of Justice Hariparandhaman in W.P. No. 13054 of 2010 batch case. The said judgment has been considered by the Division Bench in Kanimozhi case and has 8/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 been specifically overruled."
(emphasis supplied)
iii) The Joint Director of School Education(Secondary) vs. J. Joseph Irudhayaraj in W.A.No.2168 of 2018, wherein it was held as under:
“In terms of the aforesaid Government Order, unless a person completes graduation after completion of +2, he is not eligible to be considered and if the plea of the Writ petitioner is accepted, it would amount to putting a cart before a horse.”
5. We see no reason to depart from the consistent view expressed by this Court. Thus, the submission of the appellant has been found to be unsustainable and rejected.
6. Now coming to the second question, the appellant submitted that G.O.Ms.No.107 is bad inasmuch as it is contrary to University Grants Commission (UGC) Regulations which recognises degrees obtained through Open Universities. The question as to whether for the purpose of fixing the eligibility/qualification for appointment in service matters, it is open to 9/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 depart from the recognition of educational qualification under UGC, stands resolved by the decision of Division Bench of this Court in the case of The Chairman, TRB and other vs. V.Kanimozhi in W.P.No.805 of 2014, wherein it was held as under:
"5.5. Now, coming to the Regulations of the University Grants Commission with reference to admission of a student to a Degree, the said issue is irrelevant insofar as the insistence on the part of the appellants to comply with the Government Order passed in G.O.(Ms).No.107 Personnel and Administrative Reforms (M) Department, dated 18.08.2009. The appointment is to the post of Post Graduate Assistant Teacher in the Higher Secondary School. When the appellants thought it fit to make sure that only those who have completed plus 2 course and thereafter the degree course be eligible to be considered for a particular post of a teacher, then the wisdom and rationale behind the same cannot be questioned. As discussed above, the rationale has not been questioned before us and in any case, we do not find any arbitrariness in the Government Order, which has already been upheld.
5.6. The issue of recognition of a degree is different from a qualification fixed in service matters. An eligibility criteria fixed cannot be said to be an indirect way of derecognising a 10/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 degree or diploma. To put it differently, such a degree cannot be termed as an eligible qualification for a particular post. Therefore, we are of the view that though scope and ambit of Regulation 2 of the University Grants Commission has not been considered by the learned single Judge, the same is not required to be considered in favour of the respondent in view of the express terms as provided in the G.O. Passed in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. "
(emphasis supplied)
7. With regard to the third question, it was submitted that G.O.Ms.No.107 dated 18.08.2009 was invalid inasmuch it was in conflict with the Tamil Nadu State and Sub-ordinate Service Rules, 1978, inasmuch as it provided for the pattern in which the qualification ought to be obtained viz., 10+2+3, though the Rule was silent on the above aspect. In this regard, it may be relevant to refer to the rules obtaining during the relevant period, as reliance was sought to be placed on the same to suggest that the rule being silent on the education pattern, G.O.M.S.No.107 insofar as it prescribes 10+2+3 pattern as qualification criteria, is bad in law. The Tamil Nadu State and Sub-ordinate Service Rules, 1978, in particular Rule 19 11/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 ( Annexure II), as it stood prior to the amendment vide G.O.M.S.No.65 dated 02.07.2014 is extracted hereunder:
S.No. Name of the Method of Qualification
Category Appointment
1. Deputy Inspectors Direct Recruitment A degree of a University in the
of Schools and State or a degree of equivalent
School Assistants standard with such subjects or
language taken under, the
different parts as may be
considered necessary by the
Director of School Education.
Provided that a degree of the
Madras, Annamalai or Madurai
Kamaraj University with Geology
as the main subject shall be
considered as sufficient
qualification only if the candidate
possesses the B.T. or B.Ed. degree
of a University in the State.
8. The above submission is wholly misconceived and unsustainable inasmuch as the rules prevailing during the relevant period was silent on the aspect of education pattern, however it did not expressly or by implication provide that the pattern need not be 10+2+3. In the above context, we find it difficult to persuade ourselves to agree with the submission of the appellant that the Government Order is bad for being in conflict with the rules. To the contrary, the above submission is in conflict with the following settled legal 12/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 principles:
a. The State Government in exercise of its executive power under Article 162 of the Constitution of India, cannot amend or substitute Statutory Rules by administrative instructions, however, it is certainly open to the executive to issue instructions/ orders in respect of aspects on which the rules are silent so as to fill up the gaps and supplement the rules through instructions, the only limitation being that it should not be in conflict with the Rules. In this regard, it may be relevant to refer to the following judgment of the Hon'ble Supreme Court in the case of Union of India v. Rakesh Kumar reported in (2001) 4 SCC 309 and the relevant portion is extracted hereunder:
“In our view, there cannot be any doubt that the Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules....” (emphasis supplied) b. In the absence of rules, executive instructions/ directions, in the 13/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 said field/ area/ aspect or where the rules are silent or have not been made, the Central Government under Article 73 or the State Government under Article 162 of the Constitution of India can issue instructions. These can be issued even where rules have been made but are silent on a particular subject or point in issue, as explained in the judgment of the Hon'ble Supreme Court in the case of Sant Ram vs. State of Rajasthan reported in AIR 1967 SC 1910.
“7.... It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." c. An executive order can create a post, prescribe the requisite qualification and fill up the same as held in the following judgment of the Hon'ble Supreme Court in the case of Ramesh Prasad Singh vs. State of Bihar reported in AIR 1978 SC 327, the relevant portion is extracted hereunder:
"Regarding the observation of the High Court that in the absence of rules laying down qualifications for appointment and promotion to the post of Executive Engineer (Tele-14/22
https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 Communication), Respondents 3 to 28 could not be excluded from consideration for appointment to that post, we would like to say that though it cannot be gainsaid that before initiation of the proposal for creation of the post of Executive Engineer (Tele-Communication), Respondents 1 and 2 had not framed any rules prescribing etc. before a service is constituted or a post is created or filled up. As is well known, the process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance, with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them as observed by this Court in B.N. Nagarajan v. State of Mysore [AIR 1966 SC 1942 : (1966) 3 SCR 682 : (1967) 1 Lab LJ 698] and T. Cajee v. U. Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750, 764 : (1961) 1 Lab LJ 652] . It follows, therefore, that in the absence of rules, qualifications for a post can validly be laid down in the self- same executive order creating the service or post and filling it up according to those qualifications."15/22
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9. Keeping the above aspects in mind, it is beyond the cavil of any doubt that G.O.Ms.No.107 is not in conflict with Tamil Nadu State and Sub- ordinate Service Rule, 1978. To the contrary, it clarifies and fills up the gap and supplements the rules. Importantly, the validity of G.O.Ms.No.107 has been upheld by the Division Bench of this Court on more than one occasion. Thus, the above attempt by the appellant to assail the validity of G.O.Ms.No.107, in the absence of a specific challenge/prayer to the validity of the said rule is clearly unjustified. In any view, G.O.M.S.No.107 having been upheld by this Hon'ble Court, we see no merit in the above submission and thus reject the same.
10. Finally, with regard to the fourth question, it was submitted by the learned counsel for the appellant that the retrospective amendment to the Tamil Nadu State and Sub-ordinate Service Rules, 1978, vide G.O.Ms.No.65, Personnel and Administrative Reforms (M) Department dated 02.07.2014, which is deemed to have come into force from 18.08.2009 is arbitrary and illegal inasmuch as it takes away vested rights. 16/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021
11. Before proceeding to examine the above contention, we intend to make it clear that there is no challenge to validity of G.O.Ms.No.65, Personnel and Administrative Department dated 02.07.2014. In any event, the power under Article 309 of the Constitution of India, vested with the State to frame rules can be exercised retrospectively. The rules under Article 309 of the Constitution of India are legislative in character and includes the power to amend retrospectively. The assumption by the appellant that vested rights are being disturbed/impaired is wholly misconceived inasmuch as the submission of the appellant fails to see that G.O.Ms.No.107 dated 18.08.2009 which has expressly provided that the pattern of education ought to be 10+2+3, to be eligible for appointment as B.T.Assistant has been in force even before the appellant was selected on 25.03.2011 vide G.O.Ms.No.64 dated 15.03.2010. Importantly, the above requirement forms part of the selection/eligibility criteria as would be evident from G.O.Ms.No.107 and the long line of judgments of this Court, holding that 10+2+3 pattern in mandatory. It appears that the amendment vide G.O.Ms.No.65 dated 02.07.2014 with retrospective effect from 18.08.2009 17/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 in expressly providing that the pattern of education ought to be 10+2+3, for being eligible was only a recognition by the rule making authority of the prevailing/existing position. The above rule merely clarifies the prevailing position and is clarificatory in nature and does not intend to impose any new disqualification with retrospective effect. To the contrary, it recognises the qualification set out in G.O.Ms.No.107, thus, the assumption that the above amendment to the rule made vide G.O.Ms.No.65 takes away vested rights is clearly unsustainable. It is trite law that while examining the validity of a rule, there is a presumption as to its constitutionality and to sustain the validity, it is permissible to take into account all conceivable factors including history of the times, matters of common knowledge, useful reference may be made to the following decisions:-
i) R.K.Garg Vs Union of India reported in (1981) 4 SCC 675, wherein it is held as follows:
"The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” 18/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021
ii) St. Johns Teachers Training Institute v. Regional Director, NCTE reported in (2003) 3 SCC 321:
"12. ………… It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and the other invalid, the courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires."
iii) State of T.N. v. P. Krishnamurthy reported in (2006) 4 SCC 321:
"15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid."
The above decision was followed by the Hon'ble Supreme Court in
(i) Cellular Operators Assn. of India v. TRAI reported in (2016) 7 SCC 703 and
(ii) Global Energy Ltd. v. Central Electricity Regulatory Commission reported in (2009) 15 SCC 570.
19/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 Applying the above ratio, it appears that G.O.Ms.No.65 was made retrospectively only in recognition of the position prevailing in terms of qualification, vide G.O.Ms.No.107. Thus the submissions of the appellant lacks merit. It may also be relevant to note that prescription for qualification/ promotion is prerogative of the employer and it falls within the executive domain of the employer, which is beyond the ken of the judicial review under Article 226 of the Constitution of India.
12. For all the above reasons, we see no merit in the writ appeal and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
(S.V.N., J.) (M.S.Q., J.) 28.04.2022 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No smn/mka 20/22 https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 To:
1.The Director of School Education, DPI Campus, Chennai-600 006.
2.The Joint Director of School Education (Personnel), DPI Complex, Chennai-600 006.
3.The Chief Educational Officer, Kancheepuram District, Kancheepuram.
21/22
https://www.mhc.tn.gov.in/judis W.A.No.40 of 2021 S.VAIDYANATHAN, J.
and MOHAMMED SHAFFIQ, J.
smn/mka PRE-DELIVERY ORDER IN W.A. No.40 of 2021 28.04.2022 22/22 https://www.mhc.tn.gov.in/judis