Madras High Court

Basker vs The Director Of School Education on 22 December, 2023

Author: V.Bhavani Subbaroyan

Bench: V.Bhavani Subbaroyan

                                                                                  WP.No.34006 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED:        22.12.2023

                                                      CORAM

                       THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                               WP.No.34006 of 2019
                                                      and
                                               WMP.No.34597 of 2019

                     Basker                                                       ... Petitioner

                                                            Vs.

                     1. The Director of School Education,
                        College Road, Chennai-600 034.

                     2. The District Educational Officer,
                        Tiruvannamalai,
                        Tiruvannamalai District.

                     3. The Chief Educational Officer,
                        Tiruvannamalai,
                        Tiruvannamalai District.

                     4. The Head Master,
                        Keekalur Government High School,
                        Tiruvannamalai District.                                        ...
                     Respondents
                     PRAYER: Writ Petition filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Certiorari, calling for the records of the impugned
                     order in proceeding in O.Mu.No.9448/A2/2019 dated 25.11.2019 on the file
                     of the second respondent and quash the same.


                     1/23

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                                                                                          WP.No.34006 of 2019




                                               For Petitioner    : Mr.D.Nandhagopal
                                                                    for Mr.R.Rajarajan

                                               For Respondents : Mr.L.S.M.Hasan Fizal
                                                                 Additional Government Pleader
                                                                 for R1 to R4

                                                                ORDER

This writ petition has been filed by the petitioner seeking to quash the

impugned order dated 25.11.2019 in proceedings O.Mu.No.9448/A2/2019

on the file of the second respondent.

2. The case of the petitioner is that the petitioner's father was working

in Indian Army for 22 years and thereafter retired from service. During the

service of his father, he was transferred to various places and therefore the

petitioner had studied in various places due to the nature of his father's

duties. According to him, he had studied 1st standard to 5th standard in

Tamilnadu. Thereafter, he had joined in the Military School at Shivaji

Nagar, Bangalore (Karnataka State Board), wherein, he had completed his

S.S.L.C Examination in the year October 1987. In Karnataka State, the pass

mark percentage for passing the S.S.L.C Examination is (i) 35% of marks

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separately in each subject except in third language or 25% or (ii) 25% of the

marks in the third language (i.e.,minimum of 30 marks and not less than

30% in each of the remaining subject and 35% in the aggregate).

3. The further case of the petitioner is that his first, second and third

languages were Tamil, English and Kannada in which, he had secured 104

marks out of 150, 33 marks out of 100 and 13 marks out of 50 respectively.

Further, his core subjects are Mathematics, Science and Social Studies, in

which, the petitioner had got 31, 30 and 38 marks respectively. Thus, his

total aggregate marks out of 600 is 249, which is more than 35% aggregate

prescribed by the Secondary Education Examination Board for passing in

the S.S.L.C Examination. Accordingly, the Karnataka Secondary Education

Examination Board had also certified him that he had passed in the

S.S.L.C.Examination held on October 1987.

4. The petitioner's further case is that after completion of S.S.L.C

Examination, the petitioner had also obtained migration certificate from the

Karnataka Secondary Education Examination Board. Based on the same, he

had applied for Higher Secondary Course Certificate in private with the

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Department of Government Examination, Madras. The migration certificate

was accepted and the Board of Higher Secondary Education had also

accepted the pass certificate issued by the Karnataka Secondary Education

Examination Board as eligible to appear for further course of studies and

admitted him to write the Higher Secondary Examination in the academic

year September 1999 in Private. The petitioner had passed in English and

Accountancy and failed in the other subjects. Again, the petitioner had

written the examination in March 2000 and passed in the remaining subjects

viz., Tamil, History, Economics and Commerce. After completing his higher

education, he had applied for Certificate Course Examination in Physical

Education in S.G.K.V.B CPED College, Mandya, he had passed in the

physical education certificate course and he had also obtained the certificate

from the concerned College and the Karnataka Educational Board.

5. Further case of the petitioner is that he had given a application to

the first respondent i.e., Director of School Education, Chennai for giving

equivalency certificate for the certificate issued by the Karnataka Secondary

Education Examination Board with the certificate issued in the State of

Tamilnadu. The said application has also been considered and accepted by

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the first respondent vide proceeding No.045145/T7/05 dated 08.07.2005,

wherein, the first respondent had examined all the certificates of the

petitioner and granted equivalent certificate to the petitioner. Thereby, the

petitioner had registered himself in the employment exchange for the

Government jobs. Later, he was appointed as Physical Education Teacher at

Government High School, Keekalur Village, Tiruvannamalai District, the 4th

respondent herein. Since then he had been working continuously in the very

same school for the past seven years.

6. While being so, for the reasons best known to the respondents, the

certificates of the petitioner were called upon for further examination after

seven years of his appointment for the ulterior reasons. The certificate

obtained by the petitioner from the Karnataka Secondary Education

Examination Board certifying that the petitioner has passed out in the

S.S.L.C examination was sent for examination by the 4 th respondent to the

2nd respondent ie., The District Educational Officer, Tiruvannamalai,

Tiruvannamalai District. Upon examination of the S.S.L.C certificate issued

to the petitioner by the Karnataka Secondary Education Examination Board

the second respondent without issuing any notice to the petitioner, arbitrarily

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rejected the S.S.L.C certificate by his proceedings in O.M.No.9448/A2/2019

dated 25.11.2019 which is arbitrary and unfair Challenging the same, the

petitioner is before this Court with this writ petition.

7. The learned counsel for the petitioner submitted that the petitioner

had passed S.S.L.C Examination Karnataka Secondary Education

Examination Board. Based on the same, he had applied for Higher

Secondary Course Certificate in private with the Department of Government

Examination, Madras. Thereafter, he has completed his Certificate Course

Examination in Physical Education in S.G.K.V.B CPED College, Mandya

and he had also obtained the certificate from the concerned College and the

Karnataka Secondary Education Examination Board. He further stated that

the authorities without giving him an opportunity passed the impugned order

when the Physical Education Certificate issued by the Karnataka

Government was given equivalency certificate by the Physical Education

Department in Tamilnadu.

8. That being the case, the petitioner had secured 41.15% in S.S.L.C

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as per the rules in Karnataka Secondary Education Examination Board. The

certificate obtained by him is valid and cannot be treated as invalid by the

respondents and when he has produced all the certificates at the time of

certificate verification. At that time, they have accepted the same and now

they cannot turn around and without giving an opportunity, cannot cancel

this appointment.

9. The learned counsel for the petitioner in support of his contentions

relied on the Judgment of this Court in W.A.No.1292 of 2012 which was

also followed by the learned Single Judge of this Court in W.P.No7457 of

2017, wherein such rejection of S.S.L.C Certificates after several years of

appointment of the candidates/petitioners was held to be illegal and invalid

in the eye of law.

10. The learned counsel appearing for the respondent submitted that

the petitioner was appointed as a Physical Education Teacher on a

temporary basis and posted to the Government Higher Secondary School,

Keekalur, Tiruvannamalai District on 24.11.2012 vide proceedings of the 3rd

respondent i.e., The Chief Educational Officer, Tiruvannamalai made in

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Na.Ka.No.15086/B3/2012, dated 24.11.2012. The appointment was a

direct recruitment based upon the sponsorship made by the employment

exchange. Subsequently, for regularization, a proposal was sent to the third

respondent and the third respondent returned the proposal asking for

evaluation and genuineness of the mark statements obtained by the

petitioner in Higher Secondary Course as the petitioner has completed his

secondary course at Karnataka State and further completed Higher

Secondary Course in Tamilnadu State and further on the basis of

completion of Higher Secondary Course in the Tamilnadu State studied

B.A.English in the Alagappa University at Karaikudi, Tamilnadu.

11. The learned counsel for the respondents further submitted that

any appointment to the service under the Education Department will come

under the Tamilnadu School Education Subordinate Services. The

qualifications prescribed for the post of physical education teacher is, pass in

the first Year B.A., or its equivalent degree or intermediate or Teachers

School Leaving Certificate of higher grade in physical education. A pass in

the S.S.L.C(10th Standard) examinations requires minimum of 35% of marks

in each one of the five subjects i.e., Tamil, English, Maths, Science, History

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and Geography.

12. It is further submitted by the learned counsel for the respondents

that the petitioner wrote the S.S.L.C examination during October 1987 in

the State of Karnataka and had secured marks. Since he had produced the

certificate from the Karnataka State, it requires evaluation to be done, as

such the 4th respondent herein has submitted a proposal to the 2 nd respondent

requesting to evaluate the mark statements as the petitioner has completed

his secondary course at Karnataka State.

13. It is also submitted by the learned counsel for the respondents that

subsequently, the 2nd respondent evaluated the 10th Standard mark statement

and found that the petitioner had secured 31 marks in the Mathematics and

30 marks in the science but as per Directorate Government Examination

minimum pass mark for the 10 th standard, a candidate must secure a

minimum of 35 marks out of 100 in each subject. As such, the petitioner's

10th standard certificate issued by the State Government of Karnataka is not

equivalent to the 10th Standard Certificate issued by the Tamilnadu State

Board Examination as such in the State of Tamilnadu. The petitioner's mark

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could not be considered as pass in the 10th Standard. Therefore it was held

by the 2nd respondent that it cannot be equated to pass in S.S.L.C

examination vide proceedings of the 2nd respondent made in

O.Mu.No.9448/B2/2019 dated 25.11.2019.

14. The learned counsel for the respondents contended that the 1st

respondent evaluated only the Physical Education Teacher Training

Certificate issued by the Karnataka State that too on the basis of

genuineness of 10th Standard mark statement issued by the Karnataka

Secondary Education Examination Board, but the petitioner wrongly stated

that 1st respondent evaluated the 10 th standard certificate and stated it is

equal to the Secondary School Leaving Certificate issued by Board of

Secondary Education, Tamilnadu vide proceedings of the 1st respondent

made in Na.Ka.No.04515/T7/05 dated 08.07.2005.

15. The learned counsel for the respondents relied upon the order of

this Court in S.John Richard Vijayan Vs The Director of School

Education. The relevant portion of the said Judgment is extracted here

under:

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"25. .. All that the Rules prescribe is that, a teacher for appointment as a secondary grade teacher must hold two qualifications. He must hold a Secondary School Leaving Certificate and he must hold the T.S.L.C of secondary Grade or any other equivalent certificate. This is implicit in the power to equate a certificate which is not T.S.L.C of Secondary Grade with the certificate which is issued by the Commissioner for Government Examinations in Tamilnadu.

Such power by its very nature is executive in character, because once an equivalent has to be determined, that function has to be performed by the executive authorities, though such a decision of treating a certificate issued by an authority other than Tamilnadu may be open to challenge on permissible grounds. Since it was clearly permissible for the State Government and the educational authorities to decide the question of equivalence. It is not necessary to discuss the decision of the Supreme Court in State of Haryana Vs. Shamsherjang (AIR 1972 SC 1546) in which the Supreme Court held that by an executive order a rule made by the Governor under Art.309 of the Constitution of India cannot be amended".

16. Merely because some other persons are holding the post will not

enable the petitioner to bypass the statutory rules requiring a minimum

qualification for entering into the post. Merely because the Government had

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chosen to implement a wrong order which became final, that by itself will

not give any cause of action to the other persons without deciding the issue

on merit. It is therefore necessary to extract the relevant portion here under:

" 26. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or an account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently. If petitioners plead and prove that the State had adopted a pick and choose method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may, on the facts and circumstances, neither the principle of res judicator nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29.10.1999 (corresponding to the Defense

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Ministry Circular dated 11.09.2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11.09.2001".

'' .. 5. On verification of the materials available on record, we find from page 25 of the typed set of papers that the writ petitioner had secured the Karnataka Secondary Education Examination Board and subsequently, he had obtained higher qualifications, viz., PUC and B.A., Bachelor of Physical Education and Master of Physical Education. Further, from page 36 of the typed set of papers, it appears that the University of Madras has conveyed the petitioner, by its letter dated 04.05.2007, that the Pre-University Examinations conducted by the Board of Pre-University Education, Karnataka is treated as equivalent to the Tamilnadu Higher Secondary Examination for purpose of Higher Studies/Appointment.

6. Therefore, we are unable to endorse the interpretation given by the authorities that the qualification of SSLC obtained by the writ petitioner in Karnataka State could not be equated with the qualification of SSLC in Tamilnadu only on the ground of his securing 30 marks in English though it is declared as pass in Karnataka State. We do not find any error apparent in the judgment delivered in the writ appeal and accordingly, we find no scope to review the judgment. Therefore, the review application stands

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dismissed. The authorities are directed to give effect to the judgment delivered in the writ appeal forthwith, within a period of two months from the date of receipt of copy of this Order. No costs” .

17. The learned counsel for the respondents submitted that the said

case is not applicable for the following reasons:

1. “ No university has conveyed the petitioner, by its letter that the Pre-University Examinations conducted by the Board of Pre University Education, Karnataka is treated as equivalent to the Tamil Nadu Secondary Examination for the purpose of Higher Studies /Appointment.

2. The salary for the petitioner is still being disbursed.

3. Regularization and declaring probation to an employee is an administrative process which has to be done by the Head of Department as such the Headmaster (i.e., the 4th respondent herein) as he is the Station Head has to take necessary action that does not require petitioner's involvement until necessity requires.

4. The proceedings of the 2 nd respondent made in O.Mu.No.9448/B2/2019, dated 25.11.2019 is only directed to the 4 th respondent and 3 rd respondent not to the petitioner.

5.The petitioner has not pursued higher education in the Physical Education subject as of the appellant in

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W.A.No.1292 of 2012 or obtained a certificate from any University which conveys that the Pre-University examinations conducted by the Board of Pre-University Education, Karnataka is treated as equivalent to the Tamilnadu Higher Secondary Examination for purpose of Higher Studies/Appointment.

18. The learned counsel for the respondents further submitted that

once an equivalent has to be determined, that function has to be performed

by the executive authorities as such the second respondent only exercised his

executive power while evaluating the 10th standard mark statement of the

petitioner issued by the Karnataka Secondary Education Examination Board

with reference to the existing rules and Government orders in force and

declared that it cannot be equated to have passed the S.S.L.C Examinations

vide proceedings of the second respondent made in O.Mu.9448/B2/2019,

dated 25.11.2019, the same is valid in law and in accordance with existing

rules and Government orders in force.

19. The learned counsel for the petitioner had produced a Order of

this Court rendered in W.P.No7457 of 2017 in A.Meenakshi Vs. The State

of Tamil Nadu dated 12.03.2019. The relevant portion of the said order is

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extracted hereunder:

"8. Mr.K.Karthikeyan, learned Government Advocate appearing for the respondents submitted that the petitioner having secured only 33 marks in science while perusing her SSLC Certificate in the State of Karnataka, she has also obtained PUC in the same State of Karnataka. Only thereafter, she came to Dharmapuri and pursued her B.Sc Course in the Government Arts College in Dharmapuri. Subsequently, she has also passed other courses. But at the time of passing the SSLC in a school in the State of Karnataka, she has secured only 33 marks in Science whereas 35 is the minimum marks for passing the subject in SSLC in the Sate of Tamilnadu. Therefore, the the 7 th respondent, namely the Headmaster, Government Boys Higher Secondary School, Attaiyampatti, Salem has rightly issued the showcause notice stating that the petitioner was basically ineligible to become a teacher. Secondly, the support taken by the petitioner from the decision of the Division Bench of this Court in W.A.No.1292 of 2012 dated 21.11.2014 cannot be pressed into service and the same is unapplicable to the facts of the present case. In Paragraph No.6 of the said decision, the Division Bench has considered that issue with regard to the policy of Physical

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Education Teacher alone. But, in the present case, we are dealing with Junior Graduate Assistant which is called as B.T.Assistant after 2006. But the ration laid down by the Division Bench clearly deals with Physical Education Teacher alone and finally allowed the writ appeal. It is relevant to extract Paragraph No.6 of the said decision here under:

" 6. The prescribed qualification for the said post is pass Higher Secondary or Pre University Course and Government Teacher's Certificate of Higher Grade in Physical Education. Admittedly, the appellant is having Pre University pass certificate issued by the Karnataka State".

" 10. ..... When she was found to be eligible, she was appointed as a Junior Graduate Teacher in the Government Boys Higher Secondary School, Attaiyampatti, Salem after allowing the petitioner to serve for more than 10 years, it is not justified on the part of the respondents to issue the impugned termination order" .

20. The learned counsel for the petitioner had also produced a Order

of this Court dated 15.04.2019 in W.P.No.4735 of 2017 in S.Jayarani Vs.

The Director, Directorate of School Education Department, Chennai and

others. The relevant portion of the said order is extracted hereunder:

" 3. Both learned counsel agree that the lis under

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decision has been considered earlier by this Court and the most recent order has been passed in the case of A.Meenakshi Vs. The State of Tamilnadu and Others (W.P.No7457 of 2017). The petitioner in the present case has obtained 30% marks each in English and Science in S.S.L.C examination written in Karnataka. The Government invokes G.O.Ms.No.38, Personnel and Administrative Reforms (Personnel-R) Department, dated 19.01.1987, to deny her the appointment sought for as B.T.Assistant (History) on the ground that the petitioner had obtained 35% marks in each of the five subjects to be considered to have passed a course equivalent to SSLC examination in Tamilnadu.

4. Both learned counsel concur on the position that this issue is covered by a decision of a Division Bench of this Court in the case of S.John Richard Vijayan Vs. The Director of School Education, Chennai [W.A.No.1292 of 2012] dated 21.11.2014 to the effect that the lesser marks obtained in English in SSLC examination would have no bearing seeing as pursuant to the SSLC course, the candidate has been admitted in subsequent courses as well. Even in the present case, the petitioner has, pursuant to completion of SSLC , completed her under graduation and B.Ed (History) from Annamalai University in the year 1996.

5. The aforesaid order of the Division Bench has

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been confirmed by the Supreme Court in Special Leave Petition filed by the Director of School Education in the Director of School Education, Chennai Vs. S.John Richard Vijayan (SLP Civil Diary No(s).6200 of 2018] on 19.03.2018.

6. In the light of the above discussion, this writ petition is allowed. Let necessary orders be passed confirming the petitioner's appointment as B.T.Assistant (History) with consequential benefits being paid within a period of four weeks from date of receipt of a copy of this Order".

21. After writ petition was allowed, Review Application No.101 of

2017, Cont.P.No.738 of 2015 was filed, in which, the Hon'ble Division

Bench of this Court on 18.08.2017 has passed the following order:

" 2. The Review Application is filed, very belatedly, seeking to review the judgment delivered by a Division Bench of this Court setting aside the order passed by the learned Single Judge and thereby granting the relief to the petitioner by directing the Chief Educational Officer, Salem to approve the appointment of the writ petitioner as Physical Education Teacher from the date of his joining duty ie. 07.06.2007 and and pay arrears of salary from the said date till 29.12.2011 and to treat the period from 30.12.2011 till the end of November 2014 as duty for all other purposes except for the salary payable. Such order

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was directed to be complied before the end of November 2014 itself.

3. It appears that writ petitioner had joined duty on 07.06.2007 and worked for about five years and since his salary was not disbursed, he had filed a writ petition seeking for a direction to the authorities to consider his representation in that regard which ended in the order impugned in the present writ petition, whereby, it appears that his claim was rejected on the ground that on verification of the certificates, it was found that the qualification of SSLC obtained by him in Karnataka State is not equivalent to the qualification prescribed in Tamilnadu and he was also relieved from service on cancellation of his appointment. Subsequently, he succeeded in the writ appeal. Finding that the judgment delivered by the Division Bench is not being complied with the contempt petition has been filed by the writ petitioner.

4. The stand taken by the Government is that the writ petitioner secured only 30 marks in English, in SSLC whereas " 35" is the marks prescribed for passing a subject in SSLC in Tamilnadu and hence, the qualification of SSLC obtained by the writ petitioner is Karnataka State could not be equated to the requisite qualification of SSLC to get appointment in Tamilnadu.

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5. On verification of the materials available on record, we find from Page 25 of the typed set of papers that the writ petitioner had secured 41.27% in SSLC and passed through the SSLC examination conducted by the Karnataka Secondary Examination Board and subsequently, he had obtained higher qualifications viz., PUC and B.A., Bachelor of Physical Education and Master of Physical Education. From the typed set of papers, it appears that the University of Madras has conveyed the petitioner, by its letter dated 04.05.2007, that the Pre- university Examinations conducted by the Board of Pre- University Education, Karnataka is treated as equivalent to the Tamilnadu Higher Secondary Examination for the purpose of Higher Studies/Appointment.

6. Therefore, we are unable to endorse the interpretation given by the authorities that the qualification of SSLC obtained by the writ petitioner in Karnataka State could not be equated with the qualification of SSLC in Tamilnadu only on the ground of his securing 30 marks in english though it is declared as pass in Karnataka State. We do not find any error apparent in to review the judgment. Therefore, the review application stands dismissed. The authorities are directed to give effect to the judgment delivered in the writ appeal forthwith, within a period of two months from the date of

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receipt of copy of this Order. No costs" .

22. Similarly, here also is the case where the petitioner has got

marks his first, second and third languages were Tamil, English and

Kannada in which, he had secured 104 marks out of 150, 33 marks out of

100 and 13 marks out of 50 respectively. Further, his core subjects are

Mathematics, Science and Social Studies, in which, the petitioner had got

31, 30 and 38 marks respectively. Thus, his total aggregate marks out of 600

is 249, which is more than 35% aggregate prescribed by the Secondary

Education Examination Board for passing in the S.S.L.C Examination

23. This Court is of the view that when the case of similarly placed

persons was also considered by this Court and allowed, there cannot be

any disparity between the similarly placed persons. Hence writ petition is

also liable to be allowed.