HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No. 14593 of 2019
ORDER:-
The present writ petition is filed seeking to declare the
Clarification Orders issued by the 2nd respondent vide Rc.No.ESE02-
20021/6/2018-RECTMT-CSE dated 08.07.2019 and Rc.No.2615972/TRC-
1/2019 dated 08.08.2019 wherein it is clarified that Intermediate is not
required for the post of School Assistant (Social Studies) as contrary to
Rule 13 (1) (b) (i) of Notification No.768/TRC-1/2018 dated 26.10.2018
and Rule 4(1) (b) (i) of G.O.Ms.No.67 dated 26.10.2018 issued by the
School Education (Exams) Department, illegal, arbitrary,
unconstitutional, violative of Articles 14, 16, 21 and 21-A of the
Constitution of India and for a consequential direction to set aside the
same and to grant declaratory reliefs as prayed for.
2. Heard Mr.Thandava Yogesh, learned counsel for the petitioners,
learned Government Pleader for Services-III, representing respondent
Nos.1 to 4 and Mr.K.Jyothi Prasad, learned counsel appearing for
respondent Nos.5 and 6. With the consent of the learned counsel for
the parties, the main writ petition is being disposed of.
3. The point for consideration, in the present writ petition is
whether the qualification of Intermediate is essential for the post of
School Assistant (Social Studies) and the Clarificatory Orders allowing
the direct Degree candidates for selection to the said posts, though they
are not possessing the Intermediate qualification is sustainable?
4. The undisputed facts which are relevant for the purpose of
adjudicating the matter may be stated thus:
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The 2nd respondent-Commissioner of School Education issued
Notification No.768/TRC-1/2018 dated 26.10.2018 for Teacher
Recruitment Test (TRT) for the posts of School Assistants (SAs),
Language Pandits (LPs), Physical Education Teachers (PETs), Music
Teachers, Craft Teachers and Art & Drawing Teachers and TET-cum-
TRT for the posts of Secondary Grade Teachers (SGTs). The eligibility
for each category of the posts, reservations, mode of selection, pattern
of examination including duration, total marks and qualifying marks and
other procedure to be followed in selection are set out in G.O.Ms.No.67,
Education Department dated 26.10.2018.
5. The petitioners applied for the posts of School Assistant (Social
Studies) and the examination was conducted on 06.12.2018 and
10.12.2018. Basing on the performance in the examination, the
petitioners and respondent Nos.5 and 6 were qualified for the said
posts. During the Certificate verification, the 4th respondent-District
Education Officer, noticed that the 5th and 6th respondents do not
possess Intermediate qualification and addressed a communication in
Lr.Rc.No.5540/A3/2019 dated 27.07.2019 to the 2nd respondent-
Commissioner of School Education, seeking clarification. Pursuant to
the same, the 2nd respondent-Commissioner of School Education, issued
proceedings dated 08.08.2019, the relevant portion of which reads as
follows:
Sl.No. Clarification requested Clarification issued
1. Whether the candidates Clarification was issued vide
who are not having Pr.Rc.No.ESE02-
Intermediate and other 20021/6/2018-RECTMT-CSE
wise eligible for School dt.08.07.2019 to all the
Assistants shall be Selection Committees of
considered for the post of DSC-2018 for allowing the
School Assistant. Direct Degree Candidates
even if not having
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Intermediate
Qualifications(Copy
enclosed). Hence, the DEO,
Visakhapatnam is requested
to take necessary action for
considering such Candidates
in Selections of DSC-2018.
Prior to the above said proceedings, the 2nd respondent-
Commissioner of School Education, issued proceedings dated 08.07.2019
which reads as follows:
"The attention of the Regional Joint Director of School
Education, Kakinada is invited to the reference 5th read
above and he is requested to consider the eligibility with
Direct Degree Candidates who are not having the
Intermediate qualification for certificate verification and
further Selection Process as per rules."
6. Contending that the above Clarificatory Proceedings issued by
the 2nd respondent-Commissioner of School Education are contrary to
G.O.Ms.No.67 dated 26.10.2018 and the Notification dated 26.10.2018,
the present writ petition came to be filed. The Government, through the
said G.O., framed the following:
"The Andhra Pradesh Teacher Recruitment
Test(TRT) for the post of School Assistants(SAs), Language
Pandits(LPs), Physical Education Teachers (PETs), Music
Teachers, Craft Teachers and Art & Drawing Teachers and
Teacher Eligibility Test cum Teacher Recruitment
Test(TET-cum-TRT) for the posts of Secondary Grade
Teachers (SGTs)-Scheme of Selection Rules, 2018-Orders-
Issued." (for short „Rules‟).
7. Before appreciating the contentions of the respective counsel, it
may be appropriate to refer to the relevant clause in G.O.Ms.No.67
dated 26.10.2018 with reference to which, the Notification for Teacher
Recruitment Test (TRT) for the posts in question, was issued. Clause
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No.4 of the said G.O., deals with qualifications and eligibility for
selection to the posts of Teachers, the relevant portion of which may be
extracted for ready reference:
4. QUALIFICATIONS AND ELIGIBILITY;
1) A candidate for selection to the posts of Teachers
shall possess the academic and professional/training
qualifications as follows:
a) Must be fully qualified for the post applied for and in
possession of all Certificates as on the last date prescribed
in the notification for submission of applications.
b) (i) Must possess Intermediate Certificate issued by the
Board of Intermediate Education, Andhra Pradesh
(or)other equivalent certificates recognized by Board of
Intermediate Education, Government of Andhra Pradesh.
(ii) Must possess Academic degrees of Universities
recognized by University Grants Commission (UGC).
(iii) Teacher Education Courses recognized by National
Council for Teacher Education (NCTE).
(iv) Distance Mode courses offered by Universities and
Deemed Universities recognized by Joint Committee
comprising University Grants Commission (UGC), Distance
Education Council(DEC), All India Council for Technical
Education (AICTE) and with jurisdiction to operate such
courses in the State of Andhra Pradesh.
(v) Special Education Courses recognized by Rehabilitation
Council of India (RCI).
(vi) The candidates should have either been qualified in
earlier AP Teacher Eligibility Test (APTETs) Or should
obtain minimum qualifying marks in the present TET cum
TRT for Secondary Grade Teachers.
(2) Post wise qualifications:
(i) School Assistants
(a) School Assistant (Mathematics)
................
(b) School Assistant (Physical Sciences) ...............
(c) School Assistant (Biological Science) 5 NJS,J W.P.No.14593 of 2019 ...............
(d) School Assistant (Social Studies) Must possess a Bachelor‟s Degree with any two of the following subjects as optional (or) one of them as a main and any other one as a subsidiary subject - (i) History (ii) Ancient Indian History Culture & Archaeology (iii) Economics (iv) Geography (v) Political Science (vi) Politics
(vii) Public Administration (viii) Commerce (ix) Sociology
(x) Social work (xi) Anthropology (xii) Social Anthropology
(xiii) Philosophy and (xiv) Psychology.
OR B.Com with any four of the following six subjects:
(i) Economics/Business Economics, (ii) Business Organization and Management (iii) Statistics/Business Statistics/Quantitative Techniques (iv) Financial Services, Banking and Insurance (v) Accountancy/Financial Accounting (vi) Fundamentals of information technology in its equivalent of computer Systems and Programmes principles and B.Ed Degree with Social Studies / Social Sciences / Geography / History / Politics / Political Science / Economics as a methodology subject."
8. In the Notification dated 26.10.2018, Clause 13 deals with qualifications and eligibility for selection to the posts of Teachers, which is verbatim same as in Clause No.4 of the G.O.Ms.No.67 dated 26.10.2018, extracted above.
9. Referring to Clause 4 (b)(i) of the said G.O./Rules the learned counsel for the petitioners contends that in terms of the said Rule, and even as per Clause 13 of the Notification, a candidate for selection to the post of Teachers shall possess academic and professional/training qualifications as specified therein. It is his specific contention that a candidate applying for the post of Teacher should possess all the certificates and Clause 13 (b) (i) which is para materia to Clause 4 (b)
(i) of the Rules, contemplates that a candidate "Must" possess Intermediate Certificate issued by the Board of Intermediate Education or other equivalent certificates recognized by the said Board. The 6 NJS,J W.P.No.14593 of 2019 learned counsel while emphasising on the usage of the expression "Must" with reference to possessing the certificate, particularly Intermediate Certificate as referred to in Clause 13 b (i) of the Notification submits that it is a mandatory requirement. In elaboration, he submits that unless a candidate possess Intermediate Certificate which is "Must" and essential, his case cannot be considered for the post of School Assistant. He submits that it is the primary requirement to be satisfied by the candidates, apart from subject wise eligibility criteria as laid down in Clause 13 (2) (i) (d) of the Notification which is in tune with Rule 4(2) (i)(d) of the Rules. The learned counsel submits that the 5th and 6th respondents are not having the primary requirement of possessing the Intermediate Certificate which is mandatory, in view of the expression employed in the G.O./Rules, and the Notification referred to above and therefore they are not eligible for consideration to the post of School Assistant (Social Studies). The learned counsel would further submit that the clarificatory orders impugned in the writ petition are contrary to the plain language providing to the effect that possession of Intermediate Certificate is a "Must". He submits that the respondents have to strictly adhere to the Rules as envisaged in G.O.Ms.No.67 dated 26.10.2018 which are reiterated in the Notification in question and any acts of the authorities by way of omission or commission are liable to be set aside.
10. The learned counsel in support of his submissions, places reliance on the judgments of the Hon‟ble Supreme Court in Subash Chand Jain v. Delhi Electricity Supply Undertaking and Others1, 1 1979 (3) SCC 786 : AIR 1981 SC 75 7 NJS,J W.P.No.14593 of 2019 Union Bank of India and Another v. Ravi Shankar and Another2 and A.K.Bhatnagar and Others v. Union of India (UOI) and Others3.
11. Contending so, the learned counsel for the petitioners seeks grant of relief as prayed for, by allowing the writ petition.
12. The learned Assistant Government Pleader while reiterating the averments made in the counter-affidavit contends that the petitioners having applied for the posts and participated in the selection process, without challenging the Notification are estopped from raising any issues with regard to procedure adopted by the respondents for selecting the candidates. She submits that as per Clause 13 (2) (i) (d) of the Notification, Bachelors Degree is the required qualification and as the 5th and 6th respondents are possessing the same, they are eligible for appointment. The learned counsel also relies on the judgment in D.Sarojakumari v. R.Helen Thilokam and Others in support of her contentions. While supporting the impugned orders, she pleads for dismissal of the writ petition.
13. Learned counsel for the 5th and 6th respondents while refuting the contentions of the counsel for the petitioner, submits that the respondent Nos.5 and 6 are meritorious and obtained more marks than the petitioners, as is evident from the petitioners‟ affidavit itself. The learned counsel while stating that there is no dispute with regard to issuance of the Notification in question on the basis of G.O.Ms.No.67, dated 26.10.2018, would contend that even as per the G.O./Rules, as well as the Notification, the Distance Mode Course offered by the 2 (1998) 3 SCC 146 3 (1991) 1 SCC 544 8 NJS,J W.P.No.14593 of 2019 Universities and Deemed Universities recognized by the University Grants Commission, Distance Education Council, All India Council for Technical Education etc., can also be taken into consideration for selection of a candidate to the post of Teachers. He submits that it is not the case of petitioners that the respondent Nos.5 and 6 are not possessing the Degree Certificates obtained through Distance Mode in terms of the Notification dated 26.10.2018. He submits that as the respondent Nos.5 and 6 are possessing the Bachelors Degree, as contemplated under Clause 13 (2) (i) (d) of the Notification, they are eligible for selection to the post of School Assistant (Social Studies). He contends as they are satisfying the specific requirement of Bachelors Degree, the possession or otherwise of the Intermediate Certificate is of no consequence. He further submits that there is no irregularity or illegality in the Clarificatory Proceedings issued by the 2nd respondent- Commissioner of School Education. Learned counsel also submits that the interpretation of the word "Must" as sought to be made by the petitioner‟s counsel is without any basis and misconceived. Accordingly, he submits that the writ petition may be dismissed.
14. In brief reply to the contentions advanced on behalf of the respondents, the learned counsel for the petitioners submits that the challenge in the writ petition is not to the Notification, but to the Clarification Orders issued by the 2nd respondent-Commissioner of School Education. Accordingly, the judgment relied on by the learned Assistant Government Pleader is not attracted, to the facts of the case.
15. This Court has given a thoughtful consideration to the contentions advanced by the learned counsel for both sides and with reference to the Rules framed under G.O.Ms.No.67, dated 26.10.2018 9 NJS,J W.P.No.14593 of 2019 and the Notification for the posts in question, on the basis of the said G.O. A reading of Clause 13 (1) (a) would categorically go to show that a candidate for selection to the post of Teachers must be fully qualified for the post applied for and in possession of all Certificates (emphasis supplied) and "Must possess Intermediate Certificate (emphasis supplied) as per Clause 13(1)(b)(i) of the Notification. The expression "Must" used in the Notification in the context of possessing Intermediate Certificate has to be construed, in the considered opinion of this Court, as "shall". It is one of the pre-requisites, rather essential/mandatory, in view of the language employed in the Notification in terms of the Rules, which is plain and unambiguous. Though, the Notification in tune with the G.O./Rules, recognize the Distance Mode Course offered by Universities and Deemed Universities etc., possession/obtaining Intermediate Certificate cannot be dispensed with. If the possession of Intermediate qualification / Certificate is not a pre-requisite, Clause 13 (b) (i) which provides/stipulates that possessing Intermediate Certificate is a "Must", has to be considered as superfluous. Such an interpretation is not permissible in the light of the Rules framed in the G.O., and would run contrary to the plain language employed in the Notification, dealing with "Qualifications and Eligibility". When the Act or Rules provides for a particular procedure, the same has to be followed/adhered to, without any deviation and in the present case, the authorities i.e., the 2nd respondent-Commissioner of School Education, issued the Clarificatory orders, which runs contrary to the letter and spirit of the Rules, as enumerated in the Notification in respect of the posts in question. In the light of the conclusions arrived at, the contentions advanced by the respective counsel for the respondents, merits no acceptance.
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16. In A.Umarani v. Registrar Co-operative Societies4, the Hon‟ble Supreme Court held that "No appointment can be made in deviation or departure from the procedures laid down in the Statutory Rules."
The Hon‟ble Apex Court in State of Himachal Pradesh v. Suresh Kumar Verma5 held as follows:
"It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal."
A Division Bench of the Madras High Court(Madurai Bench) in its well considered judgment in W.A.(M.D.)No.1221/2016 dated 11.01.2017 relied on by the learned counsel for the petitioner held that "When once the Statutory Rules have been made, the appointment shall be made only in accordance with the said Statutory Rules. Unless some express power is conferred to relax the Rules, the same cannot be relaxed."
In District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M.Tripura Sundari Devi6, the Hon‟ble Supreme Court held as follows:
"6. It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint 4 (2004) 7 SCC 112 5 (1996) 7 SCC 562 6 (1990) 3 SCC 655 11 NJS,J W.P.No.14593 of 2019 persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable......"
17. In the present case, the Rules referred to supra were framed under Article 309 of the Constitution of India. Therefore, the Clarificatory Orders impugned in the writ petition cannot override or seek to clarify the Rules and are therefore unsustainable. In the light of the expressions in the above referred judgments, this Court finds merit in the submissions made by the learned counsel for the petitioners.
18. The judgment sought to be relied on by the learned Assistant Government Pleader in Helen Thilakom's case (referred supra) is not applicable to the facts of the case on hand. It is a case, where the unsuccessful candidate, having participated in selection process and failed to succeed in selection process, challenged the same, the Hon‟ble Supreme Court held that having taken part in the selection process and being found lower in merit, a candidate cannot be permitted to turn around and claim that the post could not be filled up in by direct recruitment. In the present case, the petitioners are not challenging the Notification, but, the Clarificatory Orders and this Court is of the opinion that they are justified in doing so. Therefore, the contentions advanced by the learned Assistant Government Pleader are rejected.
19. Accordingly, this Court has no hesitation to hold that possession of Intermediate Certificate/ Intermediate qualification is a "Must" for selection to the post of School Assistant (Social Studies) and the impugned Clarificatory orders are contrary to Rules and therefore, the same are set aside.
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20. In the result, the writ petition is allowed and the selection of the 5th and 6th respondents is set aside. The respondent Nos.2 to 4 are directed to consider the case of the petitioners for appointment to the post of School Assistants (Social Studies) and issue necessary orders, within a period of four (4) weeks, from the date of receipt of a copy of this order. No order as to costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand dismissed.
__________________ NINALA JAYASURYA, J 02.12.2021.
BLV 13 NJS,J W.P.No.14593 of 2019 HON‟BLE SRI JUSTICE NINALA JAYASURYA W.P.No.14593 of 2019 Dated 02.12.2021 BLV