(Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus Directing the respondents to conduct the recruitment test for the appointment of Computer Instructors at Government Higher Secondary Schools for all the existing vacancies by inviting applications from all eligible candidates who are having the eligible qualifications of Computer Degree with B.Ed. Degree and registered with Employment Exchange as per the direction of the Honble Supreme Court of India in its Judgment dated 09.07.2009 made in Civil Appeal No.4187 of 2009 and consequently direct the respondents to complete the selection in accordance with the issue by the Hon'ble Apex Court in the Judgment referred to above.)
Heard both sides.
2. This is a Writ Petition filed by an Association comprising of Computer Science and B.Ed.Graduate Teachers. Claiming to be a welfare society of such candidates (who are yet to enter into the Government service) have filed series of Writ Petitions. Some of them have also reached the Supreme Court. Locus standi of such an association in filing the writ Petition comprising of persons, who are yet to enter into Government service through by a registered body itself is doubtful.
3. Though Mr.R.Suresh Kumar, learned counsel for the petitioner states that on an earlier occasion, they have been allowed to file such a writ petition. A perusal of the earlier orders does not show that issue of locus standi were gone into.
4. Be that as it may. In the present Writ Petition, the petitioner seeks for a direction to the respondent Government to conduct recruitment test for appointment to the post of Computer Instructors in the Government Higher Secondary Schools for the existing vacancies by inviting applications from all candidates, who are having the eligible qualifications of a Computer Degree with B.E and who have got themselves registered with employment exchange in terms of the directions of the Supreme Court vide its Judgment in Civil Appeal No.4187 of 2009 dated 09.07.2009 and to consequently direct the respondents to complete the selection process in accordance with the said directions of the Supreme Court.
5. It is brought to the notice of this Court that subsequent to the final order passed by the Supreme Court, applications were filed before the Supreme Court in I.A.Nos.2 to 7 of 2009 in Civil Appeal No.4187 of 2009 by the petitioner society. The State had also filed similar application for clarification. Pursuant to these applications, the Supreme Court by its order order dated 19.11.2009 clarified its earlier order. Some typographical errors crept in the order stood corrected.
6. The clarification found in the order in I.As dated 19.11.2009 as found in paras 11 and 12 reads as follows:
"We clarify the judgment in the following terms:
a) permit the Government to
i) Conduct examination to the candidates who have secured 35% to 49% marks in the examination and declare the results of the candidates who secured more than 50% marks as eligible candidates for appointment.
ii) Recruit Vocational Computer Instructors for the existing 175 vacancies and future vacancies for the post of Computer Instructors through the Employment Exchange based on the seniority with the Employment Exchange as per the policy decision of the State Government as well as Government Orders applicable to appointment to the post of Computer Instructors;
b) the figures appearing in paras 10, 12 and 14 of the judgment dated 9.7.2009 in Civil Appeal No.4187 of 2009 etc., may be read as 894 instead of 857 and 792 instead of 829;
12. Except the above clarification, the judgment dated 9.7.2009 remains undisputed in all other respects. All the applications are disposed of accordingly."
7. Pursuant to this clarification, the State Government is now conducting examinations in respect of these candidates, who have secured 35% to 49% marks in the earlier examination as a second chance to have their cases considered in respect of the vacancies available. The petitioner aggrieved by the conduct of the tests by the State Government in respect of those candidates, who had written the earlier special examination and secured 35% to 49% alone.
8. According to the petitioner society, their members are also eligible to write such examination. Exclusion of the members of the petitioner society would amount to contravening the earlier final order passed by the Supreme Court dated 9.7.2009. According to Mr.Suresh Kumar, the learned counsel for the petitioner by the clarification, the earlier direction of the Supreme Court as found in para 17 cannot be either whittled down or taken away. In essence, a clarification cannot take away the right acquired in the original order by the petitioner. Therefore, the present steps taken by the State Government to implement the order of the Supreme Court should be stalled and the members of the petitioner society must also be allowed to participate in the test and selection process.
9. In order to appreciate the contentions of the petitioner, it is necessary to refer to the earlier direction given in the final order in the Civil Appeal by the Supreme Court, as found in para 17, should be reproduced:
"17. Consequently, we give the following directions to the State Government that:
a) Only those candidates who had secured more than 50% qualifying marks in the Special Recruitment Test shall be treated as qualified and recruited as Computer Instructors and they shall be so absorbed and their service shall be so regularised in accordance with law'
b) The remaining candidates who had secured less than 50% qualifying marks but about 35% marks should be declared and held to be unsuccessful and failed in the said Special Recruitment drive but they would be allowed to appear in the next Recruitment Test to be held for filling up the remaining vacant posts of Computer Instructors without insistingupon them to have B.Ed. Degree as one time exception and concession;
c) The State Government shall also hold the said test by inviting applications through issuing an advertisement and also allow candidates to take the test sponsored by the Employment Exchange. In the said Test all other rules of appointment for such post and the rules of reservation would also apply. The only exception would be the candidates who had received more than 35% marks in the earlier Special Recruitment drive but less than 50% marks which was qualifying marks may not have B.Ed. Degree, which would be treated as one time exception for them as they were working as Computer Instructor."
10. The learned counsel for the petitioner states that the members of the petitioner union have got qualifications in Computer Science with B.Ed. Degree and have got their names registered in the Employment Exchange. Whereas the persons, who are writing the examination at present are not qualified to teach in the Higher Secondary Schools as per the relevant Service Rules.
11. However a Division Bench of this Court in the Writ Appeal filed by the petitioner association viz., Higher Secondary School Computer Teachers Association, rep. by its President No.40, MGR Nagar, Railway Mettu Street, Tenkasi vs. Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society rep.by its Treasurer, Chennai 15 subsequently reported in 2009 WLR 127 had upheld the policy decision of the Supreme Court.
12. In paragraphs 36 and 37 of the Division Bench's ordar it was observed as follows:
"36. However, the matter cannot be allowed to rest here. Admittedly, the opponents are B.Ed. or M.Ed. Qualified candidates and are waiting for an opportunity to secure Government jobs, based on their qualification. They genuinely apprehend that if such a massive number of posts are filled up by way of special recruitment test, then, there may not be sufficient posts left for them to occupy. But, since it is not a process of absorption or regularisation, in its true sense and since a competitive examination has been proposed by way of this special recruitment drive, we are told that there will still be left with substantial number of posts, since it cannot be expected that all the applicants would be successful. The fact that the B.Ed. Or M.Ed. Candidates are fully qualified and are eagerly waiting for the opportunity can never be forgotten. In our eagerness to render justice between the parties, when we enquired with the learned Additional Advocate General, after getting instructions, he produced a copy of the Letter No.35991/HS2/2006-14, dated 4.2.2008, addressed by the Secretary to Government, School Education (HS2) Department, School Education (HS2) Department, Chennai to the Additional Advocate General, wherein it has been stated that:
"The present recruitment is a special recruitment for absorption of existing Computer Instructors who were lawfully engaged by a due sanction of the Government. For employment of future vacancies for the posts of Computer Instructors, the recruitment will be made open to all eligible applicants (with B.Ed.) without any preference to the already employed Computer Instructors in Government Higher Secondary School. Such recruitment will be made on employment seniority basis."
37. The above said proposal of the Government appears to be genuine and reasonable in the facts and circumstances of the case. Therefore, we direct the Governmental authorities that the entire process of selection on the basis of special drive examination shall be conducted strictly, as a one time measure, and complete the same within six months from the date of receipt of a copy of this judgment and left over vacancies and other vacancies if any arose in the meantime shall be filled up within three months thereafter, as has been assured before us, making open the recruitment to all eligible B.Ed., and M.Ed. Candidates on employment seniority basis, without any preference to the already employed Computer Instructors in Government Higher Secondary Schools." (emphasis added).
13. It is this decision of the Division Bench, which was challenged before the Supreme Court. The Supreme Court upheld the policy of the State Government and also permitted absorption of such candidates in the Government service as a one time measure but with a slight modification. The Supreme Court in order to maintain efficiency in service imposed the condition of 50% as the minimum mark in the test for entry into Government service. Whereas, the State Government had earlier permitted candidates even with 35% marks to get absorbed.
14. Therefore, in essence, the entire controversy revolves upon a) the recruitment of existing Computer Instructors teaching in Government schools into regular Government service, b) if so, whether they are eligible to be absorbed directly or by a special examination and c) in case any special examination is permitted, what should be the minimum marks for the entry into Government service. The petitioner association themselves have attacked the recruitment of such candidates into Government service on the ground that neither the Special Rules permit such recruitment nor the candidates have obtained any Teachers Education Degree to teach in schools
15. The contentions raised by the petitioner association in this regard were repelled both by the Division Bench and by the Supreme Court. However, the Supreme Court in order to maintain excellence in education had restricted the entry to candidates, who will secure 50% marks in the examination. The matter should have been given a quietus. But, however, both in the main order as well as in the order in the clarification application, the Supreme Court wanted to give a second opportunity to such of those candidates, who have secured marks from 35% to 49%, but only after going through another examination. It is for these candidates, the second examination is being conducted by the State Government.
16. This attempt made by the State Government is in accordance with the direction issued by the Supreme Court. There is no violation of its order in the steps taken by the State Government. On the contrary, the petitioner association now feels that not only that class of candidates must be allowed to write the examination but also those candidates, who are having Computer Degree, Teacher Training Degree and who have got registered in the Employment Exchange also to be permitted in the present examination. Therefore, they have come up with the present plea that they should also be permitted to participate in the selection process.
17. Mr.R.Suresh Kumar, learned counsel for the petitioner society heavily relied upon para 17(c) of the final order passed by the Supreme Court dated 9.7.2009 and contended that the Supreme Court had permitted the other candidates also to write the examination. This Court is unable to agree with the said submission.
18. The primary contention of the petitioner society made in the earlier round of litigation was that recruitments should be made only in accordance with the Special Rules framed under Article 309 of the Constitution of India and it cannot take into account claims of other unqualified candidates. The Supreme Court upheld the stand of the Government and also specifically held that the future recruitments should be only in accordance with the service Rules. As can be seen from the Rules, it does not contemplate any examination but only recruitment directly through employment exchange provided the candidates have minimum qualification. Therefore, the members of the petitioner society have nothing to lose. The Supreme Court had specifically forbidden the State in future from resorting to any other mode of recruitment other than what has been prescribed under the Rules. But, as an exception and in the light of the large number of candidates serving in the School over a period and also the State have taken a policy specifically in this regard, the Supreme Court has permitted such an examination. In the earlier examination conducted, the Supreme Court has modified the order and restricted the entry to candidates who have secured 50% marks. The other candidates, who had a legitimate expectation of getting into service were left out. Therefore, the Supreme Court had given them a second chance to enter the service by writing another examination. It has been specifically stated in para 17(b) in the order dated 9.7.2009 as well as in the clarification order dated 19.11.2009. Conscious of the total number of vacancies available, the Supreme Court also permitted that only in the present vacancies, those candidates can be accommodated.
19. A perusal of the history of the litigation and the specific contentions raised by the petitioner association even before this Court as well as before the Supreme Court clearly shows that no where there is any intention that the candidates, who are qualified to hold the post of Computer Instructor should also be allowed to write another test. Such a contention will not only be contrary to the Special Rules but also the consistent with the stand taken by the petitioner society. But on the basis of a strong observation found in paragraph 17(c) of the order dated 9.7.2009, the petitioner society is trying to misinterpret the judgment of the Supreme Court.
20. If the petitioner society feels that the order of the Supreme Court has been disobeyed by the State Government, the only option open to them is to move the Supreme Court with an appropriate Contempt Application. If any such applications are filed, the State Government can always justify its stand about the implementation of the orders of the Supreme Court . But, this exercise is undertaken since the petitioner society wanted to argue that the clarification order cannot be read in isolation from the main order passed by the Supreme Court and their vested right cannot be taken away. This Court is of the opinion that the claim made by the petitioner society is a new claim, which is being advanced only now and not pleaded earlier. They cannot take away the concession shown to the candidates, who have failed earlier and are also permitted to write a second examination as a one time measure.
21. It will not be out of place to refer to the recent decision of the Division Bench in W.A.No.1636/2009 and batch cases in the Member Secretary, Teachers Recruitment Board, and others v. M.Somasundaram dated 22.01.2010 ( referred at the time of writing this order and a copy was directed to be produced). In that case the Division Bench presided by Mr.H.L.Gokhale, Chief Justice in paras 16 & 17 had observed as follows :
"16. The observations of the Division Bench as occurring in paragraphs 28 and 29 of its judgment, which were left undisturbed by the Apex Court, have been quoted hereinabove. We are in agreement with the view taken by the Division Bench and also by the State Government. In the instant cases, nearly some 1880 posts have been created and a very large number of candidates are allowed to take this examination for regularization. It is only some 33 (and now 30) candidates, who are being objected for participation, basically on the ground that they had not been employed through ELCOT or they did not have the required qualifications or they were not in service on the date of the Government Order.
17. Over and above this, the Government is insisting that by and large the candidates concerned must be in continuous service during this period upto the date of the notific
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ation. Those candidates who have not been available for service for months together are excluded from this opportunity to give this examination. As stated above, this opportunity itself is an exception to the general rule of employment through a uniform procedure, which is in consonance with Articles 14 and 16 of the Constitution of India. The State Government is giving this opportunity to the candidates, who had put in just over six years or so, as against the yardstick of 10 years referred to in paragraph 53 of the judgment in Uma Devi's case (supra). In the circumstances, if the State insists that the candidates ought to have worked by and large continuously throughout this entire period, the State cannot be faulted. The opportunity cannot be given to candidates who were not available continuously for the service. Basically, the representation of the candidates to the Government had been that they had put in long years of service and, therefore, the Government came out with this one time exercise. If that was the representation of the Computer Instructors, obviously, it was expected of them that they were available for service during the entire period." 22. A perusal of the order of the latest Division Bench itself will show that the present examination is only to a particular class of candidates as ordered by the Supreme Court. Those who are not covered by the order cannot get into the fray. Even the policy decision of the state government earlier taken is to absorb those candidates, as they have already put in 6 years of teaching in schools. But the members of the petitioner society are yet to enter into the service. Hence they cannot compare themselves with the candidates who are allowed to write the examination and there is no violation of Article 14 in such circumstance. 23. Under the circumstances, the Writ Petition lacks any merit, is misconceived and accordingly will have to be dismissed. There will be no order as to costs.