Madras High Court
V.Kalaiselvi vs The Joint Director (Higher ... on 24 November, 2021
W.P.Nos.18794, 10618, 18810, 18814, 18815 and 18816 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.18794, 10618, 18810, 18814, 18815 and 18816 of 2021
V.Kalaiselvi .. Petitioner in
WP No.18794/2021
M.Jeyabalan .. Petitioner in
WP No.10618/2021
K.Ranjithkumar .. Petitioner in
WP No.18810/2021
K.Sindhuja .. Petitioner in
WP No.18814/2021
N.Mekala .. Petitioner in
WP No.18815/2021
K.Selvi .. Petitioner in
WP No.18816/2021
Vs
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Government of Tamil Nadu,
rep. by Principal Secretary to Government,
School Education Department,
Secretariat, Chennai – 600 009.
The Director of School Education,
Chennai – 600 006.
The Joint Director (Higher Secondary),
Directorate of School Education,
Chennai – 600 006. .. Respondents 1 to 3
in all WPs
The Chief Educational Officer,
Erode. .. Respondent No.4
in WP 18794/2021
The Chief Educational Officer,
Tiruppur. .. Respondent No.4
in WP 10618/2021
The Chief Educational Officer,
Dindugal. .. Respondent No.4
in WP 18810/2021
The Chief Educational Officer,
Namakkal. .. Respondent No.4
in WP 18814/2021
The Chief Educational Officer,
Dindigul. .. Respondent No.4
in WP 18815/2021
The Chief Educational Officer,
Erode. .. Respondent No.4
in WP 18816/2021
Prayer: Petitions filed under Article 226 of the Constitution of India
praying for a writ of certiorarified mandamus calling for the records of
the first respondent relating to G.O.Ms.No.14, School Education
(S.E.2(1) Dept. dated 30.01.2020, to quash the same to the limited
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extent of the stipulation in the Annexure under Rule 7(a) of Special
Rules for Tamil Nadu Higher Secondary Educational Service relating to
qualification in column (3) against II P.G. Assistant in Academic
subjects “viz must have obtained Bachelor's Degree and Master's
Degree on the same subject”.
For the Petitioners : Mr.G.Amalraj
in all WPs
For the Respondents : Mrs.R.Anitha
in all WPs Spl. Government Pleader
COMMON ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
A challenge is made to Rule 7(a) of the Special Rules for the
Tamil Nadu Higher Secondary Educational Service re-issued vide
G.O.Ms.No.14, School Education [SE2(1)] Department, dated
30.1.2020, particularly, with regard to the educational qualifications
prescribed in column (3) of the Annexure to the said Rule
stipulating the qualification for the post of Post Graduate Assistant
in Academic Subjects. By the Rule aforesaid, the qualification of
Bachelor's Degree and Master's Degree in the same subject was
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prescribed. The petitioners would not be eligible for promotion to
the post of Post Graduate Assistant in Academic Subjects in the
absence of the qualification of Bachelor's Degree and Master's
Degree in the same subject.
2. For convenience, we have taken the facts from
W.P.No.18794 of 2021.
3. Learned counsel submitted that petitioner in the said writ
petition possesses the qualification of M.Sc. (Maths) and B.Ed.
Degree and joined service as Secondary Grade Teacher on
14.10.2008. She completed the period of probation on 13.10.2010
and thereupon her services were regularised. The petitioner passed
M.Com. Degree in December, 2017 and, thus, was eligible for
appointment on the post in question by transfer from Tamil Nadu
Elementary Educational Subordinate Service to Tamil Nadu Higher
Secondary Educational Service as Post Graduate Assistant in
Commerce. Her name was included in the panel prepared on
1.1.2018, placing her at S.No.274 in the list of Graduate Teachers
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fit for appointment as Post Graduate Assistant (Commerce). Before
the promotion by way of transfer, the Government of Tamil Nadu by
notification dated 30.1.2020 re-issued Special Rules for Tamil Nadu
Higher Secondary Educational Service in supersession of the earlier
Special Rules. It was published in the Government Gazette
Extraordinary on 30.1.2020 itself. The qualification for the post of
Post Graduate Assistant in Academic Subjects by way of direct
recruitment and transfer was prescribed in Clause (c) of Column (3)
and, as per the said Rules, a candidate was required (i) to be Post
Graduate with at least 50% marks (or its equivalent) from
recognised University and B.A.Ed./B.Sc.Ed. from any National
Council for Teacher Education recognised institution; and (ii) must
have obtained a Bachelor's Degree and Master's Degree in the same
subjects or their equivalent in respect of which recruitment is made.
4. According to learned counsel for the petitioners, the
qualification prescribed under Rule 7(a) was given retrospective
effect and taken to be w.e.f. 12.6.2019, though the notification was
issued on 30.1.2020. The grievance of the petitioners is limited to
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the extent of the stipulation "must have obtained a Bachelor's
Degree and Master's Degree in the same subjects or their
equivalent in respect of which recruitment is made." It is
submitted that the amendment could not have been given
retrospective effect when the panel of candidates fit for promotion
as Post Graduate Assistant was issued on 1.1.2018 itself. It is
submitted that the petitioners were earlier qualified to get
promotion on the post of Post Graduate Assistant in Academic
Subjects and, accordingly, their names were shortlisted in the
category of fit persons.
5. Learned counsel for the petitioners has given a reference to
Rule 10 of the Special Rules also. The saving clause under Rule 10
provides that the Rules shall not adversely affect any person
holding any of the posts on the date of publication of the Rules.
The alternative argument of the learned counsel for the petitioners
is that if Rule 7(a) of the Special Rules is not found to be invalid or
unconstitutional, the petitioners holding the post on the date of
publication of the Rules should be treated to be eligible for
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promotion by transfer on the post of Post Graduate Assistant in
Academic Subjects and, accordingly, appropriate direction be given
to the respondents to consider the case of the petitioners for
promotion.
6. Learned counsel for the respondents justified the
prescription of educational qualification as made by the Special
Rules. It is submitted that the posts in question need to be filled
with candidates having qualification of the subject. If a candidate
not having the Bachelor's Degree and the Master's Degree in the
same subject is recruited on the post earmarked for a particular
subject, he would not be in a position to satisfy the requirement of
the post to teach the subject. It has been illustrated that if a
candidate is to be recruited to the post of Post Graduate Assistant
(Commerce) and if he is in possession of Bachelor's Degree and
Master's Degree in Science, he would not be in a position to teach
the subject on his posting on the post of Post Graduate Assistant
(Commerce). There may be a case where a candidate is having the
qualification of Bachelor's Degree in Science and Master's Degree in
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Commerce, but in the absence of Bachelor's Degree in Commerce,
the Government found it to be inappropriate to allow the candidate
to work on the post meant for the specialised subject. The
justification in bringing the Rule has been given.
7. We have considered the submission made by learned
counsel on either side and perused the record.
8. It is for the reason that this court would be addressing the
legal issue raised by the petitioners challenging the constitutional
validity of Rule 7(a) of the Special Rules in question, for ready
reference, Rule 7(a) for the post of Post Graduate Assistant in
Academic Subjects is quoted hereunder:
II (1). Post (i) Director Recruitment; 1 (a) Post Graduate with at least 50%
Graduate marks (or its equivalent) from
Assistant and recognized University and Bachelor
in of Education (B.Ed.) from National
Academic (ii) Recruitment by Council for Teacher Education
Subjects Transfer recognized institution
or
(b) Post Graduate with at least 45%
marks (or its equivalent) from
recognized University and Bachelor
of Education (B.Ed.) from National
Council for Teacher Education
recognized institution in accordance
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with the National Council for
Teacher Education (Form of
application for recognition, the time
limit of submission of application,
determination of norms and
standards for recognition of
teacher education programmes and
permission to start new course or
training) Regulations, 2002 notified
on 13.11.2002 and National Council
for Teacher Education (Recognition
Norms and Procedure) Regulations,
2007 notified on 10.12.2007.
or
(c) Post Graduate with at least 50%
marks (or its equivalent) from
recognized University and
B.A.Ed./B.Sc.Ed., from any National
Council for Teacher Education
recognized institution.
and
2. Must have obtained a Bachelor's
degree and Master's degree in the
same subjects or their equivalent in
respect of which recruitment is
made.
9. The amendment to the Rules brought by way of the
Government Order was notified in the Gazette. It shows that apart
from the qualification given under column (3), the candidate must
possess the Bachelor's Degree and Master's Degree in the same
subject or their equivalent in respect of which recruitment is made.
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10. In the facts of the case of which reference has been given,
the petitioner is not in possession of the required qualification as
has been provided under Rule 7(a) of the Special Rules. The said
petitioner does not possess B.Com. Degree, i.e., the Bachelor's
Degree in Commerce, and, accordingly, she would not be eligible for
recruitment by way of transfer to the post of Post Graduate
Assistant (Commerce).
11. The challenge to Rule 7(a) is made mainly on the ground
that despite being a subordinate legislation, it has been given
retrospective effect. It is primarily in reference to the fact that prior
to the issuance of the Government Order of 2020, the respondents
had prepared a panel of fit persons for appointment on the post of
Post Graduate Assistant in Academic Subjects and in view of the
same, the petitioners' candidatures should have been considered for
recruitment by transfer based on the qualification then existing in
the year 2018 and if the prayer aforesaid is not accepted for the
reason of retrospective effect of the Rules, the same may be struck
down.
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12. The alternative prayer of the petitioners is to cover the
case of the petitioners by Rule 10 of the Special Rules which is the
saving clause and, for ready reference, Rule 10 is also quoted
hereunder:
“10.Savings: Nothing contained in these rules shall
adversely affect any person holding any of the posts
on the date of publication of these rules.”
13. It is a fact that by virtue of the Rules brought in by way of
the Government Order of 2020, the petitioners would not be eligible
for recruitment by transfer on the post in question though prior to
the amendment of the Special Rules, the petitioners were eligible
and for which a panel of eligible candidates was prepared in the
year 2018.
14. The question for our consideration would be as to whether
based on the panel prepared by the respondents in the year 2018
for recruitment by transfer, the petitioners acquired a vested right
despite Rules already repealed or superseded.
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15. The issue aforesaid was answered by the Apex Court in
the case of Dr.K.Ramulu and another v. Dr.S.Suryaprakash
Rao and others, (1997) 3 SCC 59. In the said case, the
Government had taken a decision in the year 1988 to amend the
Andhra Pradesh Animal Husbandry Service Special Rules, 1977. A
cautious decision was also taken to not fill up the vacancies till
amendment is made. After the recommendation of a One-man
Commission, the Rules of 1977 were repealed with effect from
12.6.1996. The Government did not prepare a panel for the post of
Assistant Director for the year 1995-96 in accordance with the 1977
Rules then applicable. The candidates approached the
Administrative Tribunal to seek a direction on the Government to
prepare and operate a panel based on the qualification existing for
the vacancy of the year 1995-96. The Apex Court held that the
government is entitled to take a decision not to fill up the existing
vacancies as on the relevant date even if a rule exists for that. The
candidates had not acquired vested right for being considered for
promotion in accordance with the repealed rules and, therefore, the
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Apex Court refused to issue direction on the State Government to
prepare the panel and make promotion based on the repealed rules.
The issue was considered in reference to the "vested right" and it
was held that in case of amendment in the rules, a candidate not
actually promoted prior to amendment would have no right to seek
promotion based on the repealed rule. The vested right would
remain in favour of those actually promoted prior to the
amendment. It is apposite to quote the following paragraphs of the
said judgment:
"12. ... Thus, it could be seen that for reasons
germane to the decision, the Government is entitled to
take a decision not to fill up the existing vacancies as
on the relevant date.
...
15. Thus, we hold that the first respondent has not
acquired any vested right for being considered for
promotion in accordance with the repealed Rules in
view of the policy decision taken by the Government
which we find is justifiable on the material available
from the record placed before us. We hold that the
Tribunal was not right and correct in directing the
Government to prepare and operate the panel for
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promotion to the post of Assistant Directors of Animal
Husbandry Department in accordance with the repealed
Rules and to operate the same."
16. The judgment of the Apex Court in the case of
Dr.K.Ramulu (supra) gives a complete answer to the issue raised
by the petitioners. It is not only in reference to the amendment in
the Rules to prescribe higher qualification than possessed by the
petitioners, but the retrospectivity of the Rules, inasmuch as no
vested right is accrued to the posts.
17. In the instant case, even if the Rules are deemed to
operate prospectively, then also the petitioners would not be
entitled to get appointed by way of transfer for the reason that the
consideration of the candidature would be made based on the
existing rules and not the rules already repealed. That apart, as
already held above, we find justification in bringing in the
amendment to Rule 7(a) of the Special Rules to provide a
qualification of Bachelor's Degree as well as Master's Degree in the
same subject for which appointment is to be made. On this aspect,
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we are in complete agreement with the argument advanced by the
learned Special Government Pleader. Accordingly, we do not find
any good ground to hold Rule 7(a) of the Special Rules to be ultra
vires the Constitution.
18. The question that now remains is as to the application of
Rule 10 of the Special Rules. According to the petitioners, the
saving clause should be applied to make them eligible for
recruitment by way of transfer. A perusal of Rule 10 shows its
applicability only to those candidates holding the post, i.e. the
higher post, on which recruitment is to be made. "Holding of the
post" means the post on which one is working would not be affected
by the Rules brought by the respondents, which are under
challenge. It is to save those candidates who have already been
recruited on the higher post based on the qualification then
operating when their candidature was considered. With the
promotion or recruitment they acquired vested right which could not
have been nullified otherwise and to not take away such vested
right, the saving clause was inserted in the Rules.
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19. In view of the above, we are unable to accept even the
alternative argument raised by learned counsel for the petitioners
and, accordingly, we do not find any merit in the writ petitions on
any of the grounds urged before us and, therefore, the batch of writ
petitions is dismissed.
There will be no order as to costs. W.M.P.Nos.20107, 11231,
11238, 20082, 20085, 20100, 20101, 20103, 20104, 20105, 20106
and 20108 of 2021 are closed.
(M.N.B., ACJ.) (P.D.A., J.)
24.11.2021
Index : No
sasi
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To:
1.The Principal Secretary to Government,
Government of Tamil Nadu,
School Education Department,
Secretariat, Chennai – 600 009.
2.The Director of School Education,
Chennai – 600 006.
3.The Joint Director (Higher Secondary),
Directorate of School Education,
Chennai – 600 006.
4.The Chief Educational Officer,
Erode. .
5.The Chief Educational Officer,
Tiruppur.
6.The Chief Educational Officer,
Dindugal.
7.The Chief Educational Officer,
Namakkal.
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M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
(sasi)
W.P.Nos.18794, 10618, 18810,
18814, 18815 and 18816 of 2021
24.11.2021
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