Madras High Court
The State Of Tamil Nadu vs K.Neelavathi on 3 August, 2021
W.A.No.780/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.780 of 2020
and C.M.P.No.10281 of 2020
1. The State of Tamil Nadu
rep. by its Principal Secretary
to Government,
School Education Department,
Secretariat, Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DIP Campus, College Road,
Chennai-600 006.
3. The Chairman,
Teacher Recruitment Board,
4th Floor, E.V.K.Sampath Road,
DIP Campus, College Road,
Chennai-600 006. .. Appellants/Respondents
Vs.
K.Neelavathi .. Respondent/Petitioner
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 28.03.2019 in W.P.No.30778 of 2018.
***
For Appellants : Mr.R.Neelakandan
State Government Counsel
For Respondent : Mr.R.Jayaprakash
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W.A.No.780/2020
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
The State filed this appeal seeking to set aside the order of the writ
Court dated 28.03.2019 made in W.P.No.30778 of 2018.
2. According to the respondent/writ petitioner, she is a Graduate
in Tamil Literature and qualified Technical Teacher in Needlework,
Dressmaking and Embroidery. In response to the notification issued by
the third appellant in NO.05/2017, she appeared for the examination for
the Sewing Teacher post and having secured the requisite marks, she
was called for certificate verification, which she attended. In toto she
secured 60 marks, i.e., 55 marks in the written examination and 5 marks
for employment registration seniority and she belongs to MBC Category.
According to her, when persons secured marks lesser than her marks
was selected, she was not selected for the post, aggrieved over which,
she laid challenge to the Provisional Selection List in the writ petition.
The learned Single Judge vide the impugned order dated 28.03.2019
made the following observations and issued the following directions :
"11. Under these circumstances, this Court is of an
opinion that as per the online application, the Authorities
Competent are bound to verify the medium of instructions in
respect of SSLC and HSC / Equivalent. As far as the Technical
qualification of Higher Grade Examinations are concerned, the
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candidates can be considered based on their declaration and
based on the certificate verification done by the Competent
Authorities at the time of the selection process. However, such
undertaking and the statement given by the candidates during
the certificate verification process can be verified and
scrutinized by the Competent Authorities with the Director of
Government Examinations or with any other authorities, if
necessary.
12. It is made clear that in the certificate verification
form, if any candidate has not opted the medium of
instructions, such candidates are not eligible to avail the quota
allotted for the persons studied in Tamil Medium. If any of the
candidate have not stated that he or she has studied in Tamil
Medium, then such candidates are not eligible for the quota as
the persons studied in Tamil Medium. In respect of all other
candidates who have opted the Tamil quota both in the online
application as well as in the certificate verification process in the
prescribed format, those candidates can be considered in the
PSTM quota and accordingly, the respondents are directed to
consider the case of the writ petitioner by verifying the online
application as well as in certificate verification in the prescribed
format and thereafter, redraw the selection list by providing the
quota alloted to the persons studied in Tamil Medium and
thereafter, finalize the selection list and appoint the candidates,
by following the procedures."
3. Aggrieved over the said order, the State is before us.
4. The learned State Government Counsel appearing on behalf
of the appellants submitted that another learned Single Judge of Madurai
Bench of this Court negatived the similar claim made by the candidates
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vide order dated 04.12.2018 in W.P.(MD)No.23061 of 2018. Though the
said order was brought to the notice of this Court, the impugned order
came to be passed without adverting to the said order. The learned State
Counsel also relied upon the judgment of the Full Bench of this Court in
R.Boominathan V. The Government of Tamil Nadu rep. by its
Secretary, Home Department, MANU/TN/7018/2019 and the
judgment of the First Bench of this Court in the Secretary, Department
of School Education V. R.Vijayalakshmi, MANU/TN/2924/2020. It
is his submission that in the latter judgment, the First Bench of this Court
set aside the similar order passed by the learned Single Judge and he
sought a similar relief.
5. The learned counsel for the respondent/writ petitioner
contended that the learned Single Judge pointed out lacunae in the on-
line applications for the post of special teachers and passed the well-
reasoned order and the same does not require any interference.
6. We have considered the rival submissions and gone through
the materials placed before us.
7. Admittedly, the Full Bench of this Court in R.Boominathan
V. The Government of Tamil Nadu rep. by its Secretary, Home
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Department, MANU/TN/7018/2019, unequivocally held that in the
absence of a certificate issued by the Registrar/Principal or Head of the
Institution in the prescribed format stating that the person pursued the
education in Tamil as Medium of Instruction throughout, he or she cannot
be placed on par with PSTM Candidates for the purpose of claiming
reservation under the preference quota.
8. Following the aforesaid Full Bench judgment, the First Bench
of this Court in a batch of writ appeals in R.Vijayalakshmi's case (cited
supra) rejected the similar claim of the writ petitioners, after elaborately
discussing all the grounds raised by the learned counsels threadbare.
The First Bench observed that the learned Single Judge ought not to have
proceeded to allow the writ petitions without noticing the judgment
delivered by a co-ordinate Bench, i.e., learned Single Judge at Madurai
Bench, which was on record in the counter-affidavit. It is apt to extract
the relevant portions of the said judgment as hereunder :
"21. Thus, a combined reading of the provision of Section
2(d) of the Act 40 of 2010 read with the ratio of the Full Bench
judgment, it is evident that a certification of the medium in
which a particular course is being imparted and has been
pursued by the candidate should be Tamil medium and
therefore, the question has to be examined accordingly. The
imparting of education in Tamil medium, coupled with it being
pursued by the candidate and then being evidenced by a
certificate issued by the competent authority, form the three
principle ingredients of the legal proposition that has to be
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answered on the arguments advanced by learned counsel for
the parties.
22. We are fortified in the aforesaid view as would be
evident from an analysis of the advertisement in respect of the
posts of Special Teachers for appointment which is the subject
matter of this dispute.
........
29. What is noticeable in Clause 9 is that the certificate
has to be obtained prior to the cut off date dated 18.08.2017
and has to be produced at the time of certificate verification. In
the instant case, the date of certificate verification was
13.08.2018. Sub-clause (c) of Clause 9 specifically provides that
candidates seeking reservation under PSTM category have to
produce the certificate of Tamil Medium Study in the prescribed
format of Annexure-II. Annexure-II is extracted herein under:
........
31. None of the writ petitioners have been able to
produce any such certificate or set up any claim of the existence
of such certificate either at the time of moving any application
or even at the time of certificate verification, except the two
writ petitioners, one of whom obtained a certificate on
22.10.2018, which is also not a proper certificate about which
we shall discuss hereinafter and the other one viz., S.Southri,
who claims to have produced a certificate after the date of
certificate verification and which is not a certificate having been
obtained prior to the last date of application as provided for in
Clause 9 of the advertisement.
.....
33. Factually, the said argument raised on behalf of the
respondents/petitioners that there is no Column for mentioning
the medium of instruction separately is correct as compared to
the requirement in respect of SSLC and HSC State Board
Examinations. This, however, in our opinion, cannot be
presumed to be not a requirement at all to produce the
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certificate in respect of the medium of instruction of the
technical qualification. Accepting the argument of the
respondents/petitioners would be negating the very purpose of
Section 2(d) of the Act 40 of 2010 as also the 2010 PSTM Rules
that were notified earlier and would be making the certificate
verification Clause 8(b), Clause 9 and Annexure-II to the
notification absolutely redundant. This could not be the purpose
or intent of the format in the Online application form and
therefore, this argument has to be rejected.
34. We next come to the contention raised on behalf of
the appellant that a learned Single Judge at the Madurai Bench
had dismissed the writ petition and which fact was brought to
the learned Single Judge, yet, without mentioning the same and
without recording that he has a different opinion, instead of
referring it to a Larger Bench, has chosen to allow the writ
petitions. We accept this argument on behalf of the appellant,
inasmuch as the learned Single Judge has failed to notice the
aforesaid judgment even though it was on record of the
counter-affidavit and secondly, judicial discipline did demand
that if the same issue had been raised and a learned Single
Judge had dismissed the writ petition, then unless it fell within
the per incuriam rule or otherwise had been overruled, the
same ought to have been a matter of reference instead of
proceeding to allow the writ petitions that too even without
noticing the said judgment.
35. The third argument of learned counsel for the State
also deserves acceptance which is based on the ratio of the Full
Bench decision extracted herein above. The Full Bench clearly
rules that what has to be ascertained is as to whether the
Institution is imparting the particular course in Tamil medium or
not and for that the requirement of a certificate is sine qua non.
The Full Bench even though having delivered later on, clearly
holds to the contrary as held by the learned Single Judge, who
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has not delved into the issue. For this reason also, the
impugned judgments deserve reversal.
36. There is an another argument on behalf of the
appellant that the respondents/petitioners could not have
turned around after having appeared in the examination and
acquiesced to the procedure prescribed under the notification.
To this, the answer of learned counsel for the
respondents/petitioners is that there cannot be a medium of
instruction in respect of the Higher Grade technical qualification
of Sewing, Music, Drawing and Physical Education. We cannot
accept this argument of the respondents/petitioners, inasmuch
as no educational course can be normally imparted without a
medium of instruction. Even the Deaf and Dumb schools have a
medium of visual reading and lip movement and the school for
the Blind have a Braille medium. The subjects of Special
Teachers are not only practical, but also contain some part of
theory. The argument of the respondents/petitioners that there
is no medium at all to study the subjects is simply
preposterous. Whether it is Drawing or whether it is Sewing or
Music or Physical Education, the course has to be imparted even
if orally, through an instruction, which has to have a medium.
Thus, the argument that there is no medium as urged by the
respondents/petitioners has to be rejected outright. A script has
to be studied and translated either by signs or by any other
medium or by any other linguistic medium. We can only advise
the writ petitioners and the learned counsel to read an authority
on the subject viz., “The Loom of Language” by Frederic
Bodmer.
37. We are also of the considered opinion that all the writ
petitioners with open eyes had applied Online against the
notification, which has set out the requirement of certificates as
indicated above in detail. Annexure-II read with Claus 9 of the
notification, therefore, was well known to the
respondents/petitioners and they did not challenge the same.
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Learned counsel for the appellant is, therefore, right in his
submission that this excuse cannot be set up to claim a right
which is otherwise not available and also does not give rise to
any legitimate expectation. 38. We may add further that even
though they may have passed the written examination, a mere
selection does not give a right of appointment unless all the
conditions requiring the recruitment are fulfilled. If the Courts
grant such relaxation dehors the terms and conditions, the
same would be violative of Articles 14 and 16 of the Constitution
of India, inasmuch as this is not a matter of compassionate or
sympathetic appointment. The appointment to public
employment are subject to Articles 14 and 16 of the
Constitution of India. If such concessions are granted by the
Courts, this would definitely discriminate those who never had
an opportunity to apply or even stake such a claim which has
been extended by the learned Single Judge to the
respondents/petitioners."
9. In view of the aforesaid two judgments, one delivered by the
Hon'ble Full Bench and the other by the Hon'ble First Bench, the
directions issued by the learned Judge could not be allowed to sustain.
That apart, according to the writ petitioner, her candidature was rejected
on the ground that she "does not possess required qualification", but she
had not produced any material to show the said version. On the other
hand, a perusal of her own typed-set of papers at page No.16 shows that
in the remarks column against her roll number, it is stated that "not
within CUT-OFF". In ground 14, the appellants also stated that the last
candidate selected under MBC/DNC W quota, scored 60 marks and her
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date of birth is 25.06.1968, while the respondent herein was born on
08.06.1979. Hence, there is no merit in the claim of the writ petitioner.
10. Accordingly, the instant writ appeal is allowed setting aside
the impugned order dated 28.03.2019 passed by the learned Single
Judge in W.P.No.30778 of 2018 and thus, dismissing the said writ
petition. However, there will be no order as to costs. Consequently,
connected miscellaneous petition is closed.
11. This Court has noticed that in none of the certificates issued
by the Schools or the training institutes for professional and vocational
courses, medium of instruction is indicated. Though the Schools belonged
to the State Board and the institutes are Government Approved, instead
of insisting on a certificate from the Registrar/Principal of the Institution
for having studied in Tamil Medium, it would be appropriate to indicate
the medium of instruction in the respective certificates itself to make
things easier. Even necessary clarification or amendment in the
concerned Government Order may be issued stating that if the medium
of instruction is indicated in the certificate itself, there is no requirement
for the candidates to go to the institution last studied, in which, he/she
acquired the requisite qualification, for obtaining PSTM certificate.
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12. We hope that the appellants would consider settling the
ambiguities prevalent in the claim of PSTM category by the prospective
candidates for the post of Special Teachers.
(P.S.N., J.) (K.R., J.)
03.08.2021
Index : Yes / No
Internet: Yes
gg
To
1. The Principal Secretary,
Government of Tamil Nadu,
School Education Department,
Secretariat, Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DIP Campus, College Road,
Chennai-600 006.
3. The Chairman,
Teacher Recruitment Board,
4th Floor, E.V.K.Sampath Road,
DIP Campus, College Road,
Chennai-600 006.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
gg
W.A.No.780 of 2020
03.08.2021
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