Madras High Court
P. Mohanasundaram vs The Union Of India on 9 January, 2008
Bench: P.K. Misra, K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09..01..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 17305 of 1999 & 9677, 9678 and 12368 of 2000 and W.M.P. No. 25127 of 1999 in W.P. No. 17305 of 1999, 14082 to 14085 of 2000 in W.P. Nos. 9677 and 9678 of 2000 respectively and W.M.P. Nos. 17763 and 17764 of 2000 in W.P. No.12368 of 2000 W. P. No. 17305 of 1999: 1. P. Mohanasundaram 2. T. Sundaramurthy 3. G. Tamijeselvane 4. S. Venkatakrishnan 5. R. Kumaragurubaran ... Petitioners vs. 1. The Union of India Union Territory of Pondicherry Rep. by Secretary to Government Education Department Govt. of Pondicherry, Pondicherry 2. The Director Education Department Govt. of Pondicherry Pondicherry 3. The Deputy Director (Admn.) Education Department Govt. of Pondicherry 4. Registrar Central Administrative Tribunal Chennai 104 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 25.3.1999 in O.A. Nos. 760 to 762 of 1996 on the file of the Tribunal and quash the same and direct the respondents to interview the petitioners and to select them as Secondary Grade Teachers. W. P. No. 9677 of 2000: L. Thiagarajan .. Petitioner vs. 1. The Union of India Union Territory of Pondicherry Rep. by Secretary to Government Education Department Govt. of Pondicherry Pondicherry 2. The Director Education Department Govt. of Pondicherry Pondicherry 3. The Employment Officer Employment Exchange Pondicherry 4. Attili Mukaratnam 5. Radsha Sarada 6. Bnodapati Venkatesuresh Babu 7. M. Joycee 8. Apsarunnisa Begum 9. Cheekatla Umakumari 10. Cheekatla Vanaja 11. Kodi Mangaratham 12. K. Savithri Andal 13. Syed Mahabood Iqbal 14. N.V.V. Satyanarayanamurthy 15. Sheik Nadar Sahed 16. Karry Rambabu 17. Sri Venkata Krishnan Raju Kollu 18. Menda Janardhan 19. M.V.V. Murali Phalgunarao 20. Chiccam Mattayya 21. Vedula Krishnamurthy 22. Chekkala Veerabhadra Rao 23. Pampana Valibaba 24. K. Jawaharlal Nehru 25. R. Rajasekar 26. Vimalan ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 25.4.2000 in O.A. No. 1131 of 1999 on the file of the Tribunal and quash the same and direct the authorities to make recruitment of SGT posts strictly in accordance with the Recruitment Rules from among the persons who possess the SGT Training Certificate or Diploma in Teacher Education Training Certificate. W. P. No. 9678 of 2000: N. Saravanan .. Petitioner vs. 1. The Union of India Union Territory of Pondicherry Rep. by Secretary to Government Education Department Govt. of Pondicherry Pondicherry 2. The Director Education Department Govt. of Pondicherry Pondicherry 3. The Deputy Director of Education (Admn.) Directorate of Education Govt. of Pondicherry Pondicherry 4. R. Mohandass 5. P. Subburayalu 6. S. Pazhani 7. R. Semmanary @ Valavan 8. K. Jawaharlal Nehru 9. R. Rajasekar 10. L. Thiagarajan 11. G. Vimalan 12. V. Ophilian 13. N. Balakumar 14. J. John Antony Prabu ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 25.4.2000 in O.A. No. 1125 of 1999 on the file of the Tribunal and quash the same and direct the authorities to make recruitment of SGT posts strictly in accordance with the Recruitment Rules from among the persons who possess the SGT Training Certificate or Diploma in Teacher Education Training Certificate. W. P. No. 12368 of 2000: Vimalan .. Petitioner vs. 1. The Union of India Union Territory of Pondicherry Rep. by Secretary to Government Education Department Govt. of Pondicherry Pondicherry 2. The Director Education Department Govt. of Pondicherry Pondicherry 3. The Deputy Director of Education (Admn.) Directorate of Education Govt. of Pondicherry Pondicherry 4. R. Mohandass 5. P. Subburayalu 6. S. Pazhani 7. R. Semmanary @ Valavan 8. The Registrar Central Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 25.4.2000 in O.A. No. 1125 of 1999 on the file of the Tribunal and quash the same and direct the authorities to make recruitment of SGT posts strictly in accordance with the Recruitment Rules. For Petitioners : Mr. Karunakaran for M/s G.M. Mani Associates M/s. P. Punniyakoti and V. Ajayakumar For contesting : M/s. M. Ravi and Respondents T.P. Manoharan For Govt. of Puducherry: M. Syed Mustafa, Spl.GP COMMON ORDER
(Order of the Court was made by K. CHANDRU, J.) Heard the arguments of Mr. Karunakaran for M/s G.M. Mani Associates and M/s. P. Punniyakoti and V. Ajayakumar, learned counsel appearing for the petitioners, M/s. M. Ravi and T.P.Manoharan, learned counsel appearing for the contesting respondents and Mr. Syed Mustafa, learned Special Government Pleader (Puducherry) representing the official respondent and have perused the records.
2. In W.P. No. 17305 of 1999, the challenge is to the common order dated 25.3.1999 made in O.A. Nos. 760 to 762 of 1996. The Central Administrative Tribunal [for short, 'CAT'] dismissed the Original Applications.
3. By a Notification dated 09.11.1992, 185 vacancies for the post of Secondary Grade Teachers were notified by the Government. The selection process to fill up the posts included a written examination with viva-voce carrying 25% marks. The minimum educational qualification was fixed as Degree in relevant subject, Degree in Education and S.S.L.C. The Original Applications were filed on the ground that the examination should be conducted both in English and Tamil as many of the candidates had studied in Tamil Medium lest the students coming from the English Medium may have a cutting age over them. It was also contended that awarding 25% marks in the interview was not proper as the balance can be tilted in favour of candidates who score less mark in the written examination.
4. The CAT, by its judgment dated 25.3.1999 dismissed the Original Applications. The CAT held that the petitioners having participated in the examination and interview, cannot turn back and challenge the process of selection. Relying upon Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285], the CAT held that it is not open to the petitioners to challenge the modality of selection process after participating in the same.
5. Even on merits, the CAT held that the questions were of objective type and selected from the S.S.L.C. Syllabus. Therefore, it held that there was no prejudice caused to the Tamil Medium students in answering such questions. It also held that even Tamil Medium students would have had English as a compulsory language subject. Further, it accepted the stand of the Puducherry Government that some of the Schools in the union Territory were having English Medium sections and the selected teachers must have the capacity to take classes in English Medium sections also depending on the schools in which they may be posted.
6. On the question of interview marks being fixed at 25%, the CAT held that it need not be a universal practice to have 15% marks for viva-voce. In the present case, oral interview played an important role since the teachers' capacity to teach and their expression will have to be observed. It also correctly distinguished the judgment of the Supreme Court in Ajay Hasia's case and Lila Dhar's case and held that there was no infringement of any Constitutional provision in fixing the interview mark at 25%. So saying, the Original Applications were dismissed. It is against the said dismissal, the present writ petitions have been filed.
7. In W.P. No. 9677 of 2000 and 9678 of 2000, the challenge is to the order made in O.A. No. 1131 of 1999 dated 25.4.2000 made by the CAT. In W.P. No. 12368 of 2000, the challenge is to the order made in O.A. No. 1125 of 1999 dated 25.4.2000.
8. In these three writ petitions, the petitioners have not served all the contesting respondents even though eight years have elapsed. On this sole ground, the three writ petitions are liable to be dismissed.
9. In this context, it is relevant to refer to the recent decision of the Supreme Court in Dhananjay Malik and others v. State of Uttaranchal and others [JT 2008 (3) SC 611] wherein the principle that a person who participates in the selection process without demur, will be disentitled from challenging the outcome of the said process. The following passages found in paragraphs 7 to 10 of the said judgment may be usefully extracted below:
Para 7: "It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
Para 8: In Madan Lal vs. State of J & K, (1995) 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
Para 9: In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, [JT 2007 (12) SC 407 : (2007) 11 SCR 506 at p.516 SCR] this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
Para 10: We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge."
10. In any event, the challenge made in these writ petitions is to the common order of CAT upholding the employment notification calling for candidates for the post of Secondary Grade Teacher wherein even Graduate Teachers having the Degree in Teacher Education were also considered. This was sought to be challenged by the teachers having Diploma in Education by contending that the candidates with Degree in Education are ineligible to be considered for the said post. The CAT rejected the stand of the petitioners and held that there was nothing wrong in candidates with Graduation in Education being considered. It also held that so long as the Recruitment Rules provide for such consideration, it is not open to the CAT to decide the appropriate qualification for any post. In that view of the matter, the CAT rejected the objections to the Employment Notification issued by the Puducherry Government. We do not find any illegality in the orders passed by the CAT.
11. More or less in a similar context, the Supreme Court in State of Maharashtra and others v. Tukaram Tryambak Chaudhari and others [2007 AIR SCW 1321] upheld the decision of the Maharashtra Government in appointing the Graduate Teachers for teaching in Middle School sections run by the local bodies.
12. Even in the Dhananjay Malik's case (cited supra), the similar question regarding prescription of Degree qualification by the Advertisement issued by the authorities came up for consideration and the Supreme Court dealt with the same in paragraphs 12 to 14, which read as follows:
Para 12: "The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher-physical education as under:-
"Graduation degree in Physical Education or Diploma in the Physical Education from any recognised Institution."
The aforesaid Rule has been clarified by the Government of India, Ministry of Education, on 26.11.1965 to the effect that B.P.E degree holders should be treated at par with those who hold B.A./B.Sc., B.Com degree plus a diploma in physical education and should not be required to possess an additional B.A.,B.Sc/B.Com. degree for purposes of employment as Directors of physical education or on other similar posts. The aforesaid position has been further clarified by the Government in paragraph 12 of its counter affidavit that qualification of B.P.E. includes the graduation as well as diploma of physical education.
Para 13: A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, [AIR 1967 SC 1910], has pointed out at p.1914 SC that the 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.
Para 14: The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge Bench of this Court in the case of Union of India vs. K.P. Joseph, [(1973) 1 SCC 194], as under:
"Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another, [AIR 1967 SC 1910], that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service."
13. In the light of the above, all the writ petitions are misconceived and devoid of merits. Accordingly, they will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.
gri To
1. The Union of India Union Territory of Pondicherry Rep. by Secretary to Government Education Department Govt. of Pondicherry Pondicherry
2. The Director Education Department Govt. of Pondicherry Pondicherry
3. The Deputy Director (Admn.) Education Department Govt. of Pondicherry Pondicherry
4. The Employment Officer Employment Exchange Pondicherry
5. Registrar Central Administrative Tribunal Chennai 104